Beckwith v. The State ex rel., &c. assumed, without any authority, to make the same, was approved by the Court; that said land was appraised at 1,000 dollars and sold for 700 dollars; that said Wiley went into and is yet in possession; that said plaintiffs, then being infants, soon after he was appointed guardian, removed to and yet reside in Illinois; that he has never settled his trust as guardian, nor vested said funds in other lands; that he induced persons to not bid upon said lands; that said fact and the fact of the manner in which he was to vest the funds derived from the sale of said lands were not known to said plaintiffs, but were concealed from them till the 4th of July, 1858. This suit was commenced in about three months thereafter. A demurrer was sustained to the complaint on the ground that the suit was barred by the statute of limitations. The decision was clearly wrong, as the statute expressly excepts non-residents from its operation. 2 G. & H. p. 161. The complaint shows the plaintiffs were non-residents. This being the case, it is not necessary to discuss other questions raised, as to concealment and fraud, and the time of this discovery," &c. Per Curiam.-The judgment is reversed, with costs. Cause remanded. John Dumont, for the appellants. BECKWITH V. THE STATE ex rel., &c. CRIMINAL LAW AND PRACTICE.-As to what will constitute a sufficient affidavit for surety of the peace, see the opinion. APPEAL from the Bartholomew Circuit Court. Beckwith v. The State ex rel., &c. DAVISON, J.-This was a prosecution instituted before a justice for surety of the peace. The affidavit, upon which the prosecution is based, is in these words: "STATE OF INDIANA, Bartholomew county, sct. "Isaiah Watkins swears, as he verily believes, that he has just cause to fear, and does fear, that William Beckwith will injure his person by violence, and that he makes this affidavit only to secure the protection of the law, and not from anger or malice. ISAIAH WATKINS. "Subscribed and sworn to before me, this 14th of February, Jos. E. MITCHELL, J. P.” 1863. The justice gave judgment against the defendant, and he appealed. In the Circuit Court the defendant moved to quash the affidavit, but his motion was overruled, and thereupon the cause was submitted to a jury, who found thus: "We, the jury, find that Isaiah Watkins, the relator, has just cause for the fears expressed in his affidavit." Motion for a new trial denied, and judgment entered in accordance with the verdict. The affidavit, in this case, is said to be defective, because the relator does not swear positively, but as he "verily believes." The statutory form of an affidavit of this sort does not contain the words, "verily believes;" 2 G. & H. p. 643; but that form need not be literally pursued. Id. p. 642, sec. 31. As we construe the affidavit before us, the term, "verily believes," may be applied to its first averment, viz: "that he has just cause to fear," and that to the residue of the affidavit, the relator swears positively. Now, this construction being correct, the affidavit is, it seems to us, within the substantial requirements of the statute. Id. p. 640, sec. 22. It would, no doubt, be well to pursue the prescribed form; but in looking into the record, we are satisfied that the cause was Rigsbee v. Trees et al. fairly tried, and that the defect in the affidavit, if it be one, was not of such a character as in any degree "to tend to the prejudice of the substantial rights of the defendant upon the merits." Id. p. 404; Conklin v. The State, 8 Ind. 458. Per Curiam.-The judgment is affirmed, with costs. S. Stansifer and F. T. Hord, for the appellant. Oscar B. Hord, Attorney General, for the State. RIGSBEE V. TREES et al. CORRECTION OF CONTRACT-PRACTICE.-Under the provisions of § 71, 2 G. & H. 98, a mistake in a promissory note, in the amount for which the same is given, may be reformed, and judgment rendered for the amount due upon the note as reformed, in one and the same action APPEAL from the Shelby Circuit Court. DAVISON, J.-The appellees, who were the plaintiffs, sued Rigsbee, alleging in their complaint that the plaintiffs are the surviving partners of the late firm of Jacob Mull & Co., and that on January 1, 1861, the defendant executed to said firm a promissory note in this form: "$271.39. Manilla, Indiana, January 1, 1861. "One day after date I promise to pay to the order of Jacob Mull & Co., 239 dollars and 39 cents, value received, without any relief whatever from appraisement laws. "ANDREW J. RIGSBEE." That in drafting said note a mistake occurred in the written portion of it in this, that the note is made to read "239 Rigsbee v. Trees et al. dollars and 39 cents," when it should have read, "271 dollars and 39 cents," and that the mistake was not discovered by the plaintiffs until the note was taken to and left with their attorney for suit; that the firm of Jacob Mull & Co. consisted of the plaintiffs and Jacob Mull, who died at Rush county in this State, on May 15th, 1861, intestate, leaving the plaintiff's his surviving partners; and that the note is due. and remains wholly unpaid. Wherefore the plaintiffs demand judgment for the correction of the mistake, and for 300 dollars, and for other proper relief, &c. Proper issues having been made, the cause was submitted to the Court, who found that the note was executed on the 1st of January, 1861; that it was intended and meant to be for 271 dollars and 39 cents, and the Court also found for the plaintiffs 292 dollars and 17 cents; and, thereupon, rendered final judgment as follows: "It is, therefore, considered by the Court that the plaintiffs do recover of the defendant the said 292 dollars and 17 cents, so found as aforesaid, together with their costs, &c." Defendant moved for a new trial on two grounds: 1. The judgment is not sustained by the evidence. 2. It is contrary to law; but his motion was overruled and he excepted. This decision is said to be erroneous; because, as is alleged, the Court had no authority to reform the note in the mode indicated in the proceedings. The code says: "When the plaintiff desires to correct mistakes in title papers, or other instruments of writing, a separate action may be brought therefor, or mistakes in such title papers or other instruments of writing may be corrected in any other action, when such correction would be essential to a complete remedy." 2 R. S. p. 43, sec. 71. Promissory notes are very clearly embraced within the phrase, "instruments of writing," as used in this provision, and, under it, may be corrected; but it is insisted that the Court should have first entered up a judgment re Woodhull v. Freeman. forming the note, and then have allowed it, as reformed, to be given in evidence on the trial. We perceive no valid reason for that precise mode of practice, neither the letter nor spirit of the statute requires it. It is enough if the Court, as in this instance, find the mistake and correct it, and then render a final judgment in the case in accordance with such finding. Per Curiam.-The judgment is affirmed, with 5 per cent. damages and costs. M. M. Ray and B. F. Davis, for the appellant. GILL et al. v. THE STATE ex rel. HEUST. APPEAL from the Pulaski Circuit Court. Per Curiam.-In this case there was no exception taken to any ruling of the Court below, nor is any question properly presented by the record for our decision. The judgment is affirmed, with costs and five per cent. damages. G. T. Wickersham, for the appellants. WOODHULL v. FREEMAN. PRACTICE-FORMER RECOVERY.-In an action to foreclose a mortgage, where the defendant, who is a non-resident of the State, |