new demand, but cannot operate to revive the original contract without the mortgager's consent, nor can it with his consent, to the prejudice of a mortgage taken by another in the intermediate time. Laselle v. Barnett, 1 Blackford, 150. 4. Quære, whether an equity of redemption is subject to be sold on execution. lb.

NEW TRIAL.

If there be a verdict of guilty in a capital case, and the court have strong doubts whether the testimony supports the verdict, a motion for a new trial should be sustained. Long v. The State, 1 Blackford, 395.

OCCUPYING CLAIMANT.

1. The statute of Indiana for the relief of occupying claimants of land, provides, that when the occupant, in certain cases, is willing to pay the value of the land without the improvements, the successful claimant shall not be entitled to the possession until he pays the occupant for the improvement: Held, that this provision is not unconstitutional. Armstrong v. Elliot, 1 Blackford, 374. 2. The statute also provides, that the value of improvements, and of the land without the improvements, shall be assessed by three persons to be appointed by the court. Held, that this part of the statute is unconstitutional and void; the assessment must be made by a jury. 1b.

PARTIES TO A SUIT.

1. In action of assumpsit against a carrier for damage to goods, a dormant partner need not join. Wilkes v. Clark, 1 Devereux, 178.

2. The same person cannot be both plaintiff and defendant in the same cause. Where two executors confessed a judgment to a partnership, of which one of them was a member, it was held to be error in fact, and for it the judgment was reversed. Pearson v. Nesbit, 1 Devereux, 315,

PARTNERSHIP.

1. In an action against partners on a promissory note signed with the name of the firm, a plea denying the partnership of the defendants, amounts to the general issue, and is therefore bad on special demurrer. Springer v. Paterson, 1 Blackford, 188. 2. The confession of judgment by one partner, in the name of the partnership, does not bind the firm. Barton v. Reno, 1 Blackford, 252.

PERJURY.

Although the testimony of two witnesses is necessary to convict of perjury, yet the direct oath of one witness, and proof of the

declarations of the prisoner inconsistent with the oath in which perjury is assigned, is sufficient. State v. Molier, 1 Devereux, 263.

PLEADING.

1. Of several pleas, each is separate and independent, as if contained in different records. Therefore where in an action for a libel, the defendant pleaded not guilty and a justification, it was held, that the admission of the libel contained in the latter plea could not be used either to estop the defendant to insist on his denial, or as evidence to prove the publication on the issue joined on the former plea. Whitaker v. Freeman, 1 Devereux, 271. So decided in the Circuit Court for the District of North Carolina, by Marshall, Chief Justice of the United States. 2. Where the officer and the plaintiff, in an erroneous fi. fa. are jointly sued in trover for property sold under it, the former may show his justification under the general issue, although it be jointly pleaded. If, however, they had joined in pleading the justification specially, the plea would be bad as to both. Weaver v. Cryer, 1 Devereux, 337.

3. A plea is not bad for duplicity which alleges several facts dependent upon each other, tending to one point and triable upon one issue. Therefore a plea in abatement to an attachment, averring that a bond and affidavit were not taken and returned, is good upon general demurrer. And it seems that an averment that no bond, &c. were taken, and the said bond, &c, so taken were not returned, is equivalent to an averment that they were not taken and returned, and that the repugnancy does not vitiate. State Bank v. Hinton, 1 Devereux, 397.

4. A plea of set-off is in nature of a cross action, and the plaintiff may reply several matters thereto. Worth v. Fentress, 1 Devereux, 419

5. Where the defendant pleaded a set-off and other pleas, and no

replication to either was entered, and after a verdict and new trial was awarded, leave was given to the plaintiff to reply the statute of limitations to the plea of set-off. It was held that this was no waiver of the general replication before presumed, but that the plaintiff might, on the second trial, insist on both. 16. 6. Where there are several counts, some good and others bad, the declaration cannot be objected to, in this state, after a general verdict. Findley v. Buchanan, 1 Blackford, 12.

7. To a plea of nul tiel record, the plaintiff replied there was such record, &c. and concluded with a verification: Held, that the conclusion was not erroneous. Cole v. Driskill, 1 Blackford, 16.

a

8. In a declaration in trover, the property was described as certain black mare of the value of 100 dollars' Held, that the description was sufficiently particular. Heddy v. Fuller, 1 Blackford, 51.

9. In an action of assumpsit commenced 22d of December, 1818, the promise was alleged to have been made some time about the 10th of December, 1817. Held, that the declaration was sufficient after verdict. John v. Clayton, 1 Blackford, 54. 10. Where there there is a demurrer to the whole declaration containing several counts, one of which is good, the plaintiff is entitled to judgment. Mc Carty v. Rhea, 1 Blackford, 55. 11. Same point decided, Gibson County B. C. v. Harrington, 260. 12. A plea of nul tiel record to an action of debt on the judgment of a justice of the peace in another state, is a mere nullity. Collins v. Modisett, 1 Blackford, 60.

13. If to a declaration containing two counts, one on a bond and the other for goods sold and delivered, the defendant plead non est factum to the first count, without noticing the second; the plea cannot be objected to for not answering the whole declaration. Posey v. Bullit, 1 Blackford, 99.

14. If a plea purport to be an answer to the whole declaration,

and only answer a part, it is bad, and the plaintiff may demur: but if the plea purport to be an answer to a part of the declaration only, and be an answer but to a part, the plea is good quoad hoc; and in such a case, the plaintiff should take issue on the plea, and pray judgment for so much as remains unanswered. lb. 15. Covenant for not conveying real estate. The case required that the declaration should aver that the purchase money had been paid before the suit was commenced. This was done; but the day and place of payment were not stated. Held, that as the payment was averred to have been made before the commencement of the suit, the averment was sufficient on general demurrer; that the particular day and place of payment, in such a case are matters of form; and that omission cannot be objected to on general demurrer. Cunningham v. Flinn, 1 Blackford, 266.

POSSESSION.

1. In detinue, if the defendant relies upon his possession, either as a bar to the action, or as a part of his title, the burden of proving its length lies upon him. Darden v. Allen, 1 Devereux, 466.

2. Every possession is presumed to be upon the title, and for the

benefit of the possessor, and he who avers the contrary takes the burden of proof. lb.

3. No length of possession in a bailee will either destroy the title, or bar the action of the bailer.

1b.

4. Where a parent puts a slave into the possession of a child, without an express parol gift, this possession is not adverse, and does not divest the title of the parent, or bar his action. Justice v. Cobbs, 1 Devereux, 469.

POWER OF ATTORNEY.

A, as attorney in fact for a company consisting of himself and several others, confessed a judgment in the names of the partners in favor of B. The power of attorney under which A acted, authorized him, in the names of the partners, to negotiate, compromise, adjust, determine, settle, and arrange, all differences and disputes between them and the bank of Vincennes, and all persons whatever; and to execute and sign their names to any release, covenant, or conveyance of all or any part of their joint estate, whether real or personal; and to give and receive discharges and receipts, &c. Held, that the confession of judgment by A, was without sufficient authority. Lagow v. Patterson, 1 Blackford, 252.

PROFERT.

In an action on a judgment, the declaration need not contain a prefert in curiam of the record; nor can an omission of the prout patet per recordum be objected to, except on special demurrer. Harlow v. Becktle, 1 Blackford, 237.

PRINCIPAL AND AGENT.

1. The trustees of a church gave a sealed note as follows: 'For value received this 2d of October 1820, we the trustees of the first Presbyterian Congregation in the town of Madison, Indiana, do bind ourselves and our successors in office to pay to A B or order on demand 769 dollars; Held, that they were personally liable. McClure v. Bennet, 1 Blackford, 189. 2. In private contracts, when a man describes himself as an agent, but covenants that he himself, or that his principal, will do a certain thing, and executes the deed in his own name, he alone is liable; the term agent being a mere descriptio persona. But when, as agent, and with the requisite authority, he executes a bond for, and in the name of his principal, binding him alone, the principal is responsible, the agent not. Deming v. Bullit, 1 Blackford, 241.

3. If a bond set forth, that A B, as agent for C D, legally appointed for the purpose, binds the said C D to make a title &c. and

it be executed thus, A B, (seal,) agent for C D, it is the deed of C D, provided the agent's authority be sufficient.

PROMISSORY NOTES.

1. The assignment of promissory notes in Indiana is not governed by the law of merchants. Baltit v. Scribner, 1 Blackford, 14.

2. The assignee of a note obtained a judgment and ca. sa. in due time against the maker, who was committed to jail, and discharged under the insolvent law. Held, that this was prima facie evidence of due diligence, under the statute, to bind the assignor, who, before the suit on the assignment, knew of the maker's insolvency. 1b.

3. An assignee of a promissory note cannot sue a remote assignor where the note assigned is not governed by the law of merchants. McCarty v. Rhea, 1 Blackford, 55.

4. In assumpsit by the assignee against the assignor of a promissory note, a special plea denying the assignment, is bad, because it amounts to the general issue. Scribner v. Baltit, 1 Blackford, 112.

5. The assignment of a note is itself a contract, which, prima facie, imputes a good consideration. Johnston v. Dickson, 1 Blackford, 256.

6. A promissory note is by statute the foundation of an action, like a bond or bill of exchange; and the consideration need not, in such a case, be averred in the declaration. Findley v. Cooley, 1 Blackford, 262.

7. A and B made a note payable to a banking company; C, to

whom B was indebted, handed the note to the cashier for discount; but the bank refused to discount it. In the event of the note's being discounted, C was to draw the money and place it to B's credit. Held, that the note, not having been discounted, never had a legal existence, and could not be the foundation of a suit for the benefit of any person. Bank of Indiana v. Ross, 1 Blackford, 315.

8. If a promissory note be payable at a particular place, the declaration, in an action against the maker, must aver a demand of payment at the place, and the averment must be proved at the trial. Palmer v. Huges, 1 Blackford, 328.

9. The demand, in such a case, need not be shown to have been made on the precise day on which the note fell due; but it should appear to have been made before the commencement of the suit.

Zb.