Patrick v. Leach.

to justify the jury in finding Patrick guilty of the alleged frauds," which instruction the court refused to give, to which the plaintiff excepted.

The instruction is exceedingly vague and calculated to mislead the jury, and was properly refused. The rule is well settled that fraud is never presumed, but must be clearly proved. But the degree of proof required in an action for damages is merely a clear preponderance of the testimony establishing the fraud. In a civil action the law does not require the jury to be satisfied beyond a reasonable doubt, as in criminal The court therefore did not err in its refusal to give the instruction.

cases.

It is claimed that the court erred in refusing to exclude the testimony relating to Morrow from the jury. This testimony was properly submitted to the jury to be given such weight as they deemed it entitled to. If Morrow was merely acting as a "decoy" in the interest of the plaintiff, and with his knowledge, to induce Leach to purchase the goods in question, under the pretense that he might be a competitor, or at least a purchaser, it was proper testimony to submit to the jury, as tending to establish the charge of fraud. The damages awarded by the jury, however, are clearly excessive. It is clear that the goods were sold at a very high price and were paid for in property at an estimated value far above its real cash value, but as it is clear from the testimony that the plaintiff in the court below is entitled to recover in the action, we have carefully considered the testimony in the case, which is too voluminous to be embodied in this decision, and find that there was due from Patrick to Leach at the time of the trial of the action the sum of twelve thousand five hundred dollars. The defendant Leach, therefore, has leave to remit from the judgment, the sum of five thousand eight hundred and twenty-three dollars

Patrick v. Leach.

and forty-three cents, within thirty days from the ninth day of April, 1879, and upon condition that said remittitur is filed as above provided, the judgment of the district court is affirmed. In case of the failure of the defendant to remit from the judgment the sum specified above within the time designated, the judgment is reversed and the cause remanded for further proceedings.

JUDGMENT ACCORDINGLY.

On the fifth day of May, 1879, the attorneys for Leach filed a remittitur for the sum of $5,823.43, and thereupon a mandate was issued to the court below to carry the judgment into effect.

INDEX.

ACCEPTANCE.

See NEGOTIABLE INSTRUMENTS.

ACTION.

1. Loan of Public Money. An unauthorized or unratified
loan or deposit of public money constitutes no cause of ac-
tion in the name of the state. State v. Keim......

2. Trespass vi et Armis. In a civil action in the nature of
trespass vi et armis for an assault and battery, an amount
of damages equal to the full compensation of the plaintiff
for the injury sustained by him cannot be increased by the
addition of a fine for the punishment of the defendant.
Boyer v. Barr

3. Subscriptions. Where a corporation or person to whom
a subscription runs has incurred obligations on the faith of
such subscription, and has complied with the conditions on
which it was made, the same may be enforced by suit. Fre-
mont Ferry and Bridge Co. v. Fuhrman.....

63

68

99

4. Upon Written Instruments. In bringing an action upon
a deed or other instrument, consisting of several distinct
parts, the plaintiff is required to set out in his petition only
so much of the instrument as is necessary to show his right
of action. He should, however, attach a copy of the in-
struments sued on to his petition, and if none be attached
he may be compelled to do so. Dorrington v. Meyer....................... 211

5. Action Against State. No action can be maintained on
claims against the state which have not been presented to
the auditor for adjustment. State v. Lancaster County Bank 218

6.

: AUTHORITY OF ATTORNEY GENERAL. Where the
petition fails to state a cause of action against the state, the

assent of the attorney general to a judgment thereon will
not aid the judgment. Id.........

7. Injunction Bond. The ground of the injunction can-
not be inquired into in a suit upon the injunction bond.
The court in which the injunction suit is tried must deter-
mine whether the injunction was properly or improperly
issued, and after such determination by a final disposition
of the case, and not before, does an action lie on the bond.
Bemis v. Gannett..........

218

236

See LIMITATION OF ACTIONS. MORTGAGE, 1, 7, 8. PLEADING, 11.

TAXES, 4, 6, 7.

ADMINISTRATORS.

See DECEDENTS.

AFFIDAVITS.

1. Affidavits in support of, or in opposition to, any proceeding in the district court, must be embodied in the bill of exceptions before the same will be considered in the supreme court. Credit Foncier of America v. Rogers.....

2. Mandamus. Omissions in an alternative writ cannot be supplied by a reference to the affidavit upon which the writ issued. State, ex rel., v. School District..

36

92

AGENT.

See INSURANCE. PRINCIPAL AND AGENT. PARTNERSHIP, 8.

AGREEMENTS.

1. Personal Property. A verbal agreement to give and accept security upon personal property is valid between the parties, although of no validity as against creditors and subsequent purchasers in good faith. Conchman v. Wright See CONTRACTS. MORTGAGE, 3.

1

AMENDMENTS.

See PLEADING, 8.