fore, we can neither consider nor decide the questions discussed by appellant's counsel. Wagoner v. Wilson, 8 N. E. Rep. 925, (decided at last term.) The error complained of is not shown by the record. The judgment is affirmed, with costs.

(108 Ind. 389)

SUTHERLIN v. STATE.

(Supreme Court of Indiana. December 8, 1886.)

1. CONTINUANCE-AFFIDAVIT MATERIAL FACTS.

The material facts which are by statute required to be set forth in an affidavit for continuance cannot be supplied by merely attaching thereto an old affidavit which has served its purpose at a previous term.

2. NEW TRIAL-NEWLY-DISCOVERED EVIDENCE-CUMULATIVE-IMPEACHING.

Newly-discovered evidence of a merely cumulative character, which tends only to the impeachment of a witness, without making a different result probable, affords no sufficient ground for a new trial.

3. SAME ERRONEOUS INSTRUCTIONS-MUST BE SPECIFIED IN MOTION FOR NEW TRIAL. A motion for a new trial on the ground that the trial court committed error in giving or refusing instructions must specify with reasonable certainty the particular instructions upon which error is predicated.

Appeal from circuit court, Parke county.

V. Carter and Puett & Hadley, for appellant. The Attorney General, for the State.

MITCHELL, J. The appellant was tried and found guilty upon an indictment charging him with the crime of grand larceny. His punishment was fixed at imprisonment in the state prison for the period of three years. The indictment was returned to the May term, 1885, of the Parke circuit court. On motion of the prosecuting attorney the cause was continued to the September term. On the fifth day of September, at the appellant's request, the cause was again continued over the term. The appellant's motion for a continuance was supported by an affidavit, in which he deposed that certain competent witnesses, who would, if present at the trial, give material evidence in his behalf, were absent from the state. The affidavit recited, in substance, the evidence which it was alleged the absent witnesses would give, and was apparently formal in all respects. An order was duly made authorizing the appellant to take depositions out of the state. At the ensuing November term, after an unsuccessful application for a change of venue from the county, the appellant again moved for a continuance. His motion was supported by an affidavit in which he alleged that one of the same witnesses whose absence occasioned the continuance at the September term was still absent, and that he had been unable to procure the deposition of the witness referred to. This last affidavit contained no statement of the facts which it was expected the witness would testify to, nor that such facts could not be proved by any other witness whose testimony could be readily procured. All that the affidavit contained in respect to these subjects was the following: "Comes now the defendant, who, being duly sworn, says that the witness John Porter, referred to in his affidavit hereto attached, and made a part hereof, which was made at the last court, as to what said Porter would swear to, and which by agreement is made a part hereof, is, as he now learns for the first time," etc.; "that the evidence of said Porter is very material, as the court will see by the affidavit hereto attached."

While the record sets out, at the appropriate place, the affidavit filed in support of appellant's first application for a continuance, it in no manner, except by the recitals above set out, shows that the affidavit referred to was made a part of that filed in support of the second application. Conceding that the first affidavit was attached to the second, as therein recited, the continuance was nevertheless properly denied. The material facts which the statute requires to be set forth in an affidavit for a continuance cannot be supplied by merely attaching

to the one presented an old affidavit, however formal, which has served its purpose at a previous term. The affidavit must set out and verify all the facts, as they then exist, which are essential to support the application. The case having been once continued at the appellant's request in order to procure the testimony of Porter, no sufficient reason appearing for the failure to take depositions during the vacation, the last continuance applied for, in the manner above stated, was properly refused.

It is next urged that the court erred in refusing to grant a new trial on account of alleged newly-discovered evidence. During the progress of the trial, one Lawson, apparently a confederate of the appellant in the alleged larceny, was called to testify on behalf of the state. The testimony of Lawson related almost exclusively to criminating admissions made by the appellant to the witness, tending to prove the larceny charged. By the newly-discovered witnesses, on account of whose evidence the new trial was asked, it was proposed to prove that Lawson had made statements out of court variant from and contradictory of those testified to by him at the trial. An examination of the record discloses that most of the evidence introduced by the defense was of the same character as that alleged to have been newly discovered. Within the rule that newly-discovered evidence of a merely cumulative character, or which tends only to the impeachment of a witness, without rendering a different result than that already reached probable, affords no sufficient ground for a new trial, the application was properly denied. De Hart v. Aper, 8 N. E. Rep. 275, (present term.)

The case here presented is not within the rule which governed the cases relied on by the appellant. Kochel v. Bartlett, 88 Ind. 237; Rains v. Ballow, 54 Ind. 79; Humphreys v. Klick, 49 Ind. 189. These were cases in which it was proposed, by newly-discovered evidence, to prove verbal admissions of a fact made by the adverse party in a manner substantially different from any proof offered of the same fact at the trial. The rule which controlled the cases referred to has no application here.

The only other question presented for consideration in the argument relates to alleged errors of law in the eleventh and fifth instructions given by the court of its own motion. The only specification in the motion for a new trial which calls in question the instructions of the court is the sixth, which is as follows: "That the court erred in giving instructions from 1 to -, inclusive, of its own motion to the jury, and in giving each of said instructions." It has been repeatedly held that a motion for a new trial, which assigns, as a cause therefor, that the court committed error in giving or refusing instructions, must specify with reasonable certainty the particular instruction upon which error is predicated. Grant v. Westfall, 57 Ind. 121. The statement of the rule renders comment on the specification above set out unnecessary. The judgment is affirmed, with costs.

(108 lnd. 392)

CITIZENS' INS. Co. v. HARRIS.

(Supreme Court of Indiana. December 9, 1886.)

REPORT AND CASE MADE-AGREEMENT AS TO FACTS-BILL OF EXCEPTIONS.

An agreement as to the facts does not constitute an agreed case, and, where the evidence consists of an agreement as to the facts, it must be incorporated in a bill of exceptions, showing that it was all the evidence given in the cause.

Appeal from superior court, Marion county.

D. M. Bradbury, for appellant. D. V. Burns, for appellee.

ELLIOTT, C. J. No demurrer was filed to the appellee's complaint at the special term, and the specification in the assignment of errors that the court erred in overruling the demurrer to the complaint has no foundation. The case is not within the statute concerning agreed cases, for it is an ordinary

action at law, with an agreement as to the facts. There is an essential difference between an agreed case and a case where the trial takes place upon an agreed statement of facts. Oppenheim v. Pittsburgh, etc., Co., 85 Ind. 471, see page 477, and authorities cited; Zeller v. City of Crawfordsville, 90 Ind. 262; Pennsylvania Co. v. Niblack, 99 Ind. 149.

The agreement as to the facts in a case not an agreed one under the statute is mere evidence, and nothing more. A recital in the agreement that the facts are embodied in it is not, as was said in Martin v. Martin, 74 Ind. 207, a substitute for the bill of exceptions, whereas, in an agreed case under the statute, neither pleadings nor bills of exceptions are required. Here the agreement as to the facts is but an agreement as to what the evidence would establish, and it is only in the record by force of the bill of exceptions. But, while the agreement as to the facts is in the record, there is no statement in the bill showing that it contains all the evidence; and, as there can be no decision of the questions presented without a consideration of all the evidence, it must be held that the appeal fails. It has long been the rule that, unless the record affirmatively shows that all the evidence is in the bill of exceptions, no question requiring a consideration of the entire evidence is presented. Judgment affirmed.

(108 Ind. 429)

STAIR v. RICHARDSON.

(Supreme Court of Indiana. December 10, 1886.)

1. EXCEPTIONS-STATEMENT IN, AS TO EVIDENCE-PRESUMPTION.

Where the verdict of a jury is attacked as not being sustained by the evidence, a statement in the bill of exceptions that "this was all the evidence, both oral and written, which was introduced to the jury in the trial of said cause," is sufficient to justify the court in considering it as "all the evidence given in the cause" in support of the verdict.

2. PARTNERSHIP - DISSOLUTION - AUTHORITY OF PARTNER-ASSIGNMENT OF CHOSE IN ACTION.

After the dissolution of a partnership, one partner has no power to assign or indorse a partnership note or chose in action without some special authority, express or implied, from the other.

3 ASSIGNMENT ACTION BY ASSIGNEE-VALIDITY OF ASSIGNMENT-BURDEN OF PROOF. In an action by the assignee of an account and notes, where the validity of the assignment is denied under oath, the burden is upon the plaintiff to prove a valid assignment.

Appeal from circuit court, Marshall county.

Action on notes and account by assignee.

E. C. Martindale and Samuel Parker, for appellant. C. Richardson and M. A. O. Packard, for appellee.

NIBLACK, J. Complaint by Charles Richardson against Frederick Stair, in two paragraphs. The first paragraph charged that the defendant was indebted to the plaintiff in the sum of $302.25, for services performed by A. C. and A. B. Capron as lawyers; also by A. C. Capron and the plaintiff as lawyers; also by A. C. Capron; likewise for money paid out and expended, and for work and labor done, by the several parties named as above,-all at the special instance and request of the defendant, and as further illustrated by a bill of particulars. The paragraph also charged that the accounts for these services, and the money expended, had been, on the twelfth day of January, 1885, assigned and transferred to the plaintiff. The second paragraph counted upon three promissory notes which had been executed by the defendant to other persons, and which it was averred had also been assigned and transferred to the plaintiff. The defendant answered in eleven paragraphs. The first paragraph was in general denial, and the rest set up special matters in defense. The third paragraph was duplex and informal in its character, but it, among other things, argumentatively denied the assignments of the accounts

and notes in suit, and its averments were supported by the oath of one of the attorneys for the defendant. Reply in denial of the special paragraphs of an

swer.

There was a verdict for the plaintiff on both paragraphs of the complaint, and, over a motion for a new trial, challenging the sufficiency of the evidence, and alleging the occurrence of other errors at the trial, the plaintiff had judgment on the verdict.

Error is assigned upon the overruling of the motion for a new trial, and that assignment of error is the only one relied on in argument for a reversal of the judgment.

The bill of exceptions, purporting to contain the evidence given in the cause, concludes as follows: "And this was all the evidence, both oral and written, which was introduced to the jury in the trial of said cause." The point is made that this statement is not the equivalent of saying, "And this was all the evidence given in the cause," and that hence the evidence is not properly before us. This latter expression is more comprehensive in its terms than the statement contained in the bill of exceptions; but where, as in this case, the question is as to the sufficiency of the evidence to sustain the verdict, a statement that "this was all the evidence introduced to the jury on the trial of the cause" is the practical equivalent of a statement that "this was all the evidence given in the cause." When evidence is spoken of as having been introduced in a cause, the reasonable inference is that the evidence referred to was admitted and considered in the cause; and, when the verdict returned by a jury is sought to be reviewed upon the evidence, a statement that the evidence set out in the bill of exceptions was all the evidence introduced to the jury at the trial is substantially the same as saying that the evidence so set out was all that was given to the jury at the time of the trial, and hence is all that can or need be considered in support of the verdict. Beatty v. O'Connor, 106 Ind. 81; S. C. 5 N. E. Rep. 880. We are, consequently, led to the conclusion that the evidence certified to us in this case is properly in the record.

Alburtus C. Capron was called as a witness for the plaintiff. He stated that he was the A. C. Capron referred to in the complaint; that he and A. B. Capron, also referred to, had been, for many years previous to 1880, partners in the practice of the law under the firm name of Capron & Capron; that in the year 1880 he dissolved partnership with the said A. B. Capron, and then formed a partnership with the plaintiff, Richardson; that he continued to practice law as a partner with the plaintiff until May, 1884, when he and the plaintiff also dissolved partnership; that a very considerable part of the services sued for were performed by the firm of Capron & Capron, and the rest were rendered by the firm of Capron & Richardson, at the same time verifying, in general terms, the correctness of the bill of particulars accompanying the first paragraph of the complaint; that on the twelfth day of January, 1885, he had a settlement of his partnership business with the plaintiff, and then assigned to him (the plaintiff) the account embraced in the bill of particulars, as well as the notes described in the second paragraph of the complaint. The witness did not claim to have had, and there was no evidence tending to prove that he had, any special authority to assign the interest of A. B. Capron, either in the account or any of the notes, one of which appears on inspection to have been executed to the firm of Capron & Capron.

After the dissolution of a partnership, one partner has no power to assign or transfer a chose in action belonging to the firm without some special authority, either express or implied, from the other partner or partners. After the dissolution, the former members of the firm are no longer partners, but are only tenants in common; and, where there is no agreement to the contrary, each partner, after dissolution, possesses the same authority to adjust the affairs of the firm, by collecting its debts and disposing of its property, as

before the dissolution, but such former partners can no longer bind each other, even by varying the form of existing obligation. After dissolution, one partner cannot indorse a partnership note even to pay a prior debt of the firm. 1 Pars. Cont. (7th Ed.) § 14, bottom p. 218; Whitworth v. Ballard, 56

Ind. 279.

The validity of the assignment of the account and notes having been denied under oath, it devolved upon the plaintiff to prove, by a preponderance of evidence, that a valid and proper assignment of the account and notes had been made as was inferentially alleged by the complaint. Lucas v. Baldwin, 97 Ind. 471. This, as has been seen, the plaintiff failed to do. The verdict was, consequently, not sustained by sufficient evidence.

The circuit court instructed the jury that, as to all the paragraphs of the answer except the first, the defendant, to maintain his defense, was required to establish the facts, as respectively alleged, by a preponderance of evidence. For the reasons already given, this instruction, in its application to the third paragraph of the answer, was erroneous. Carver v. Carver, 97 Ind. 497. The judgment is reversed, with costs, and the cause remanded for further proceedings.

(108 Ind. 286)

BRADBURY and others v. GOODWIN.

(Supreme Court of Indiana. November 22, 1886.)

MASTER AND SERVANT-NEGLIGENCE OF MASTER-DEFECTIVE APPLIANCES.

Where a master negligently provides defective appliances for doing work, and personally superintends the same, he is liable in damages to a servant who, without fault, and without knowledge of such defect, is injured thereby.

Appeal from circuit court, Wayne county.

Action in damages for negligence.

T.J. Study, H. U. Johnson, and Kibby & Kibby, for appellants. L. C. Abbott, A. L. Study, and H. C. Fox, for appellee.

MITCHELL, J. The following are the material facts as they appear in the complaint in this case: On the twenty-third day of July, 1884, William H. and William K. Bradbury were engaged in the real-estate and insurance business, under the firm name of Wm. H. Bradbury & Son. They occupied an office in the second story of a building adjoining the Second National Bank building, situate on Main street, in the city of Richmond. Being about to change their business location, they employed the plaintiff, George W. Goodwin, to assist in removing their heavy iron safe from the room theretofore occupied to another into which they proposed to move their office, furniture, and business. Preparatory to the removal of the safe, the defendants constructed an anchorage of frame-work, at the head of the stairway leading from the second story of the building out of which they proposed to move, out onto Main street. To the frame-work so constructed ropes and pulleys were attached, by means of which it was intended to control the descent of the safe from the head of the stairway to the foot thereof, and to the sidewalk below. At the time Goodwin was employed to assist, the frame-work had been constructed, the safe had been moved out of the office to the landing at the head of the stairway, and the ropes and pulleys had been adjusted to the safe. The plaintiff alleges that the defendants then directed him and another employe to take their places in front of the safe, and assist in moving it down the stairway on a wooden track or tramway, which had been prepared for the purpose; and that, being assured that the frame-work and appliances so prepared were safe and sufficient, and relying on such assurances, he entered upon the work, in front of the safe, as directed. It is charged that the frame-work and appliances were so negligently and unskillfully constructed and arranged as that, when the weight of the iron safe came upon it,