DeForest v. The State. struck the deceased upon the head with the ax, of which he died in the space of between two and three months. The testimony of several witnesses shows that the defendant was a peaceable, quiet, industrious man, and nothing appears to show that he was in the habit of intoxication, or otherwise, to explain why the inmates of the house should be afraid of him, or why they should have gathered up the axes and taken them into the house, and locked the door against him. On the evidence, as it comes up to us, it is extremely doubtful whether the conviction ought to be sustained. Without explanation, it looks somewhat strange that the axes should have been brought into the house, and secreted under the bed; that the deceased should, for the first time, have slept in the room rented by Mrs. Bratton, and that the door should have been locked to keep the defendant out. It would have been much more satisfactory had a reason been shown for all this defensive preparation. The defendant, it will be seen, was not a party to the arrangement by which he was to sleep in the room on the porch with the deceased; that arrangement was made, according to our reading of the bill of exceptions, after he had gone down town. Upon coming home he found his door locked; he found himself locked out of his own house, and those within refusing to open it; he went to a neighbor, and upon again returning, the parties within still refusing to open the door, he got an ax and beat it down; this, for aught we can see, he had a legal right to do. Upon knocking the door down, he encountered the deceased upon the inside, armed with an ax handle, and, if the deceased struck the defendant with it first over the head, we are not prepared to say that the homicide was not, under the circumstances, excusable as a matter of selfdefence. But we do not decide the case upon the evidence. Enough of the case has been stated to show the application of certain DeForest v. The State. evidence offered by the defendant. The defendant proved, that, about five months before the homicide, the deceased struck the defendant with a club, which felled him, but he recovered, and started towards the witness' door; the deceased seized an ax and threw at him, which grazed his head as he was entering the door. The deceased threatened to kill him. This evidence, after having been given, was withdrawn from the jury, and the defendant excepted. The defendant then offered to prove that there had been a continued series of threats made by the deceased against the life of the defendant during the five months previous to the difficulty, and coming down to that time, and that he had, on several occasions, attempted to put those threats into execution; and also that the deceased was physicially much stronger and more powerful than the defendant. The testimony was excluded. In view of the case made by the State against the defendant, we think the evidence offered by him should have been received as tending to show that he had reasonable ground to believe that it was necessary for him to go so far as he did in order to protect his own life, or his person, from great harm; in short, to show that he was acting in justifiable selfdefence. The authorities, we think, clearly show that the evidence offered was admissible. Dukes v. The State, 11 Ind. 557; Wharton's Am. Cr. Law, sec. 641; Wharton's Homicide, p. 217. Per Curiam.-The judgment below is reversed, and the cause remanded. J. Milner, for the appellant. W. W. Leathers, Prosecuting Attorney, for the State. Pierce et al. v. Mills et al. AYRES V. THE STATE. APPEAL from the Jay Common Pleas. Per Curiam.-The information in this case charges Ayres with having had in his possession four counterfeit bank notes, with intent to put them in circulation, knowing the same to be counterfeit. There was a verdict against the defendant, upon which the Court, having refused a new trial, rendered judgment. For a reversal it is insisted that the proceedings in the lower Court were not, as they should have been, founded upon an affidavit. This is a mistake. The record, having been perfected by certiorari, shows affirmatively that the proper affidavit was filed with the information. The judgment is affirmed. J. Colerick and Lewis Jordan, for the appellant. PIERCE et al. v. MILLS et al. CONSTITUTIONAL LAW-OFFICIAL BONDS.-The act of December 21, 1858, (Acts Special Session 1858, p. 39,) is applicable as well to official bonds executed before as after its date, and effects only the remedy, and does not impair the obligation of such contracts, and is therefore constitutional. APPEAL from the Lake Circuit Court. DAVISON, J.-This was an action against Jesse Pierce, the sheriff of Lake county, and his sureties, on his official bond. The bond is dated June 29th, 1857, and is conditioned in the usual form for the faithful discharge of the duties of the sheriff, &c. The breach assigned is that the sheriff had in 21b 27 155 149 156 701 Pierce et al. v. Mills et al. his hands an execution in favor of the plaintiffs, had collected money thereon, and had failed to pay over the same according to law. Proper issues having been made, the case was submitted to the Court, who found against the defendants 424 dollars and 50 cents. And, thereupon, the plaintiffs moved for a judgment upon the finding, without relief from the appraisement laws, &c. This motion the Court sustained, and the defendants excepted. Final judgment was accordingly rendered, &c. Was the ruling upon the plaintiff's motion correct? When the bond sued on was executed there was no law in force within this State authorizing a judgment, without relief, &c., against a sheriff and his sureties. But subsequently, on the 6th of August, 1859, an act took effect which provides, "that hereafter all judgments recovered against any sheriff, constable, or other public officer, or the sureties of any or either of them, for money collected, or for a breach of any official duty, shall be collectable without stay of execution, or the benefit of the valuation laws of this State." Acts 1858, called session, pp. 39, 40. This act, though it had not taken effect and become a law when the bond was given, was in force when this suit was tried in the lower Court. Hence the inquiry arises, whether it can be so construed as to make it operative upon prior contracts. It must be conceded that the act of 1858, to which we have referred, relates to the remedy which, as has been often decided, "may be altered at the will of the State, provided the alteration does not impair the obligation of the contract." How then stands the act in question? True, it deprives the obligors of the bond of the benefit of a relief law, which existed at the time they contracted; but that result makes it operate on the remedy alone, and the contract, instead of being impaired by its operation, is, it seems to us, rendered more effective. The appellant cites Bronson v. Kenzie, 1 Howard 319. There it was held that Archer et al. v. Heiman et al. "a State law passed and in force subsequently to the execution of a mortgage, which prevents any sale unless two-thirds of the amount at which the mortgaged property has been valued at by appraisers had been bid therefor," impaired the obligation of the contract. But it will at once be seen that that case is not applicable to the case at bar, because here the law gives force to the contract by increasing the means to be used by the obligee in enforcing the performance of it. Andrews v. Russell, 7 Blackf. 474. Per Curiam.-The judgment is affirmed, with 5 per cent. damages and costs. A. McDonald, for the appellant. ARCHER et al. v. HEIMAN et al. PROMISSORY NOTES-MERGER.-A suit and judgment upon a joint note against one promissor constitute a bar to any other suit against any other promissor, because the note is thereby merged in the judgment. SAME. In section 16 of the act of March 11, 1861, (Acts Reg. Sess. 1861, p. 145,) the word "parties," as applied to joint notes or bills of exchange, is so construed as to embrace all the makers as one party, all the indorsers another, &c., and therefore a suit and judgment upon such joint note or bill against one maker, or one indorsee, &c., would constitute a bar to any other suit against any other maker or indorser, &c. APPEAL from the Vanderbugh Circuit Court. DAVISON, J.-Samuel Archer and David Mackey sued Desire D. Walker, Adam Miller, Isaac Heiman and David Heiman upon a note in this form: |