Hixon and Another v. Cuppy. would convey them to her with the improvements then thereon, of the probable value of one thousand dollars, and would vest of the money in making future improvements upon the lots, until they should be of the value of two thous and dollars; that she accepted the proposition in good faith, and sold said yearly income at a great sacrifice, viz., for the sum of twenty five hundred dollars, that she might thus be able to secure a home; that upon receiving the money she let her husband, Reed. Hixon, have two thousand dollars thereof, and afterwards two hundred more, for the purpose and upon the agreement and understanding above; that Reed Hixon afterwards promised to and did make under her directions additional improvements by erecting a dwelling house upon the lots, of the value of six or seven hundred dollars, and was enabled so to do from the money so obtained from her; that the lots and improvements are worth not exceeding eighteen hundred or two thousand dollars; that no part of the money had been repaid to her by Reed Hixon, except about one hundred and fifty dollars in property, which she had suffered to be taken for his debts; that he did not make improvements on the property so as to make it worth as much as the money so by her given to him; that the house so built after the advancement of the money was in possession of said Margaret during its erection, and was by her and her husband after its completion occupied as and for a family residence, but that it was under her control and considered by them to be in her possession from that time until the commencement of this suit, and from thence hitherto she has rented it to other parties; that Reed Hixon at various times promised to convey to her the property, but neglected so to do; that the plaintiff, long before the execution of the mortgage and before the creation of the debt secured thereby, had full notice of the equities of the defendant Margaret Hixon. A demurrer was sustained to this cross complaint, and that action of the court below is the alleged error assigned here. Hixon and Another v. Cuppy. When this case was here before (Cuppy v. Hixon, 29 Iud. 522), the facts then presented by the cross complaint were entirely different from the averments now under consideration. It was correctly said then in reference to the statute of frauds, that "the principle is, that only where there has been such part performance of the contract that the complete execution of it is necessary to prevent the perpetration of a moral and legal fraud, will equity apply the doctrine of estoppel and refuse to allow a party to consum mate the fraud by availing himself of the statute." There were then no facts averred to take the case out of the statute but the payment of the purchase-money. The facts now alleged, and admitted by the demurrer, bring the case within the rule. In addition to the payment of the purchase-money, the sacrifice of the yearly income, the exclusive possession of the property by the wife, and the erection of the dwelling-house with the money paid by her are shown. In the absence of a written contract, the payment of the purchase-money, the possession under a verbal contract, and improvements on the property, have been repeatedly held by this court to be sufficient to take the case out of the statute of frauds. It is claimed by the counsel of the appellee, that the cross complaint does not show a performance of the contract on the part of the wife. As we understand the facts averred, the husband failed to make the improvements contemplated by the original contract, but having received twenty-two hundred dollars, and having erected a dwelling-house of the value of only some seven hundred dollars, he promised to make the conveyance, thereby waiving the payment of the residue of the twenty-five hundred dollars. It is expressly averred that the husband did not make improvements on the property so as to make it worth as much as the money advanced by the wife. The court erred in sustaining the demurrer to the cross complaint. Leonard and Others v. Shirts. Judgment reversed, with costs. Cause remanded with directions to overrule the demurrer to the cross complaint, and for further proceedings. J. M. Hanna, for appellants. LEONARD and Others v. SHIRTS. GUARANTY.-Notice.-Lease.-It was stipulated in a lease for two years, that the lessee should pay the lessor rent, in a certain sum for the entire period, in two equal payments, for which the lessee agreed to give his notes, with surety to the satisfaction of the lessor. Certain third persons executed an agreement annexed to the lease, as follows: "We guarantee that" the lessee "shall perform his agreements in the foregoing contract." The lessee took possession, and failed to execute such notes or pay the sum due, of which notice was given to the guarantors ten months after the commencement of the lease. Held, that the guarantors were not released from their liability as such as to the payment of the money, by the neglect of the lessor to notify them at an earlier date of the failure of the lessee to give the notes. APPEAL from the Hamilton Circuit Court. RAY, J.-Action by appellee upon a contract leasing to Leonard a farm for two years from March 1st, 1866, charging various breaches of the contract and joining the co-appellants, who executed this agreement: "We guarantee that John R. Leonard shall perform his agreements in the foregoing contract." One part of the original contract was, that Leonard should pay the appellee one thousand dollars for the two years rent, in two payments of five hundred dollars each, for which he was to give his notes with surety to the satisfaction of the appellee. A demurrer was overruled to the statement of the cause of action. The complaint alleges, that Leonard took possession and failed to execute such notes or pay the sum due, and that notice of this fact was given said guarantors on the 1st of January, 1867. It is insisted that Foltz v. The State. the neglect to notify the guarantors at an earlier date, of the failure of Leonard to give the notes, released them from liability. But it is plain that the principal thing intended by this contract was the payment of the money, and that the giving of the notes could be waived by the appellee, if the guarantors did not themselves see that the notes were executed and tendered. This duty rested upon them and was a matter for their own protection and security, and their neglect affords no defense against the liability which was incurred by them in guaranteeing that Leonard should pay the money. The same question is presented by answers, to which demurrers were properly sustained. Judgment affirmed, with three per cent. damages and costs. J. O'Brien and J. W. Evans, for appellants. FOLTZ V. THE STATE. CRIMINAL LAW.-Sabbath.- Desecration of-Constitutional Law. That the "act for the protection of the Sabbath, and providing penalties for the desecration thereof" (2 G. & H. 481), is constitutional, must be regarded as settled. SAME.- Indictment.— Evidence.- Variance.-An indictment for desecrating the Sabbath charged, that the defendant "was found unlawfully at common labor and engaged in his usual avocation, to wit, then and there selling and delivering to William Dillon one cigar and receiving from him ten cents in payment therefor," &c. Held, that the indictment alleged, substantially, that selling cigars was the defendant's usual avocation. Held, also, that evidence that making and selling cigars was the defendant's business, was admissible. Held, also, that proof that the sale charged was made to William P. Dillon, was not a material variance. SAME. Opinion of Witness.-On the trial of an indictment for desecrating the Sabbath, a witness stated as his own opinion merely, that the defendant Foltz v. The State. was over fourteen years of age, and testified that the defendant was keeping house, living with a woman as his wife, whom the witness supposed to be the defendant's wife; that they lived together as husband and wife; and that the defendant had a mustache. Held, that this evidence was sufficient to justify a finding that the defendant was at least fourteen years of age. APPEAL from the Jefferson Criminal Circuit Court. ELLIOTT, J.-The appellant was indicted under the act of 1855 (2 G. & H. 481), for desecrating the Sabbath, by being engaged on that day "in his usual avocation, to wit, then and there selling and delivering to William Dillon one cigar" for ten cents. The indictment alleged the date, and averred that it was the first day of the week, commonly called Sunday, and contained proper averments negativing the fact that the transaction was within any of the exceptions contained in the act. A motion to quash was interposed and overruled. A trial of the cause by the court, on a plea of not guilty, resulted in a conviction and judgment. It is urged that the law under which the prosecution was had is obnoxious to the constitution of the State. We decline the discussion of this question, for the reason that the act in question has been so long recognized and acted upon, and so often affirmed by this court, that it cannot longer be regarded as an open question in this State. See Voglesong v. The State, 9 Ind. 112. The indictment is also objected to on the ground that it does not sufficiently allege that the sale of cigars was the appellant's "usual avocation." The language of the indictment is, that the appellant "was found unlawfully at common labor and engaged in his usual avocation, to wit, then and there selling and delivering to William Dillon one cigar and receiving from him ten cents in payment therefor." The language is not the most apt for a clear expression of the idea evidently intended by the draftsman; but the only reasonable and fair construction that can be given to it is, we think, that selling cigars was the appellant's usual avo |