Hollingsworth v. Pickering. sustains the complaint on those points. It is directly contradicted by the testimony of Hollingsworth. It was, therefore, a question of credibility between the witnesses, which it was the exclusive province of the jury to determine, and we cannot examine it for the purpose of disturbing the verdict. The second question, however, merits a more extended consideration. Copies of the agreement of submission, and of the award of the arbitrators under the same, were filed with the second paragraph of the answer, and thereby made a part of the record. The originals were given in evidence on the trial, and other evidence was also given, which is uncontradicted and unimpeached, by which it is clearly shown that this suit is founded upon the same subject matter and claim submitted to and passed upon by the arbitrators. If the award was a valid one, it was final between the parties, and constituted a good bar to the present action; and if so, the finding of the jury was clearly wrong, and the court below should have granted a new trial. But if, as contended by the appellee, the award is void for uncertainty, apparent on its face, the court below erred in overruling the demurrer to the second paragraph of the answer, as it constituted no defense to the action; and, in that event, the appellant has no cause to complain that a correct result was reached by the verdict of the jury. The following is a copy of the agreement of submission under which the award was made: "Know all men concerned, that we, the undersigned, have this day submitted to the judgment of" (here follow the names of the twelve arbitrators,) "a matter of difference between us, arising out of a certain agreement made by and between us, in the autumn of the year 1858, wherein Phineas Pickering claims of Isaac Hollingsworth seven Hollingsworth v. Pickering. hundred and eighty (780) dollars. Now, therefore, we do hereby agree to submit said matter of difference between us to the above named friends, for their final decision, pledging ourselves to abide their judgment therein. [Signed,] 10th mo., 3d, 1862." PHINEAS PICKERING, The award given in evidence reads thus : "We, the arbitrators to whom the matters of difference between Isaac Hollingsworth and Phineas Pickering were this day submitted, submit as our award, that Isaac Hollingsworth pay Phineas Pickering one hundred dollars, within thirty days from this date. Also, pay the difference between the tax receipt and the note that Phineas holds against him. [Signed by the twelve arbitrators.] 10 mo., 3d, 1862." The matter submitted to the arbitrators was a difference between the parties, arising out of a certain agreement between them, made in the autumn of the year 1858, in which Pickering claimed of Hollingsworth $780; and we must infer, in the absence of a showing to the contrary, that the note and tax receipt related to the agreement and the matter of difference between the parties, and was, therefore, a proper matter for the arbitrators to pass upon. The note and tax receipt are not set out in the award, nor do they accompany it; they are not even referred to by date or amount so that they can be identified, or the difference between them ascertained. The award, therefore, is indefinite and uncertain, and incapable of being made certain, and, for that reason, must be held to be void. Parker v. Eggleston, 5 Blackf. 128; Hays et al. v. Hays, 2 Ind. 28. It did not constitute a defense to the action, and the judgment must, therefore, be affirmed. Winship and Others v. Clendenning. The judgment is affirmed, with 1 per cent. damages, and costs. Linsday & Lewis, for appellant. H. A. Brouse, T. A. Hendricks and O. B. Hord, for appellee. WINSHIP and Others v. CLENDENNING. INJUNCTION BOND.-An injunction bond was entitled "State of Indiana, Clinton county, A v. B." Held, that the bond was not void for the failure to state the name of the court in which the action was brought. EVIDENCE.-RECORD OF DEED. -The record of a deed may be given in evidence without accounting for the absence of the original. PRACTICE.-SUIT ON INJUNCTION BOND.-In an action upon an injunction bond, it is not necessary that a copy of the proceedings and judgment in the injunction case should be filed with the complaint. SAME. DAMAGES.-A having the right to the possession of certain real estate, under a purchase by title bond, was enjoined, at the suit of B, from exercising that right, and from entering upon the land. Held, that in a suit upon the injunction bond, A was entitled to recover for any injury to the possession, or to the land itself, caused by the injunction. SAME. - An injunction having been granted to continue until the determination of a case in the Supreme Court, the latter case was subsequently dismissed, but the appeal was afterward " "reinstated," and the case decided upon its merits. Held, that it must be understood from the record that the dismissal of the case in the Supreme Court was set aside and the case reinstated, and this being the case, the injunction was continued in force, and, in an action upon the injunction bond, damages accruing after the dismissal could be recovered. APPEAL from the Clinton Common Pleas. ELLIOTT, C. J.-This was a suit brought by Clendenning, against the appellants, on the following written obligation: Winship and Others v. Clendenning. "Edwin Winship, V. James Clendenning. State of Indiana, Clinton County. "We undertake that the plaintiff, Edwin Winship, shall pay to the defendant, James Clendenning, all damages and costs which may accrue by reason of the injunction in this action. [Signed,] EDWIN WINSHIP. April 13th, 1861. ELI ARMANTROUT. WILSON SEAWRIGHT." "Approved by me: JOHN M. COWAN." The defendants demurred to the complaint, and assigned as a cause that it did not state facts sufficient to constitute a cause of action, but the court overruled the demurrer, to which the defendants excepted. They then answered by a general denial. There was a trial by jury, and a finding for the plaintiff for $120. A motion for a new trial, by the defendants, was overruled by the court, and judgment rendered on the finding of the jury. The defendants excepted, and appeal to this court. We Several errors are assigned, and urged as causes for the reversal of the judgment of the lower court. will notice them in the order in which they are presented. 1. "The court erred in overruling the defendants' demurrer to the complaint." The complaint, in substance, alleges that on the 13th of April, 1861, the defendant Winship filed and presented a complaint before John M. Cowan, Judge of the Clinton Circuit Court, setting forth, among other things, that he and one John P. Crothers were joint tenants of certain real estate, (which is described,); that at the June term, 1860, of the Clinton Common Pleas Court, Crothers commenced a suit for the partition of said land; that partition was made by commissioners appointed by the court, and a report thereof made, and confirmed by the court; that he, Winship and Others v. Clendenning. Winship, had appealed said case to the Supreme Court. That by said partition there were set apart to him only 26 35-100 acres, while to Crothers were given 53 35-100 acres, when, in fact, he, (Winship,) was entitled to one-half of the whole tract. That Clendenning, the plaintiff, had, without right, entered upon his (Winship's) half of said land, and was trespassing thereon by felling timber and committing other wastes; and thereupon prayed for an injunction, and an order restraining the plaintiff, Clendenning, from the further possession or interference with said half of said land. Whereupon said judge granted an order restraining the plaintiff from entering upon said premises, or exercising ownership over the same in any manner whatever. And that, "at the succeeding term of said Circuit Court, the plaintiff was enjoined from entering upon said premises until the determination of the said partition case in the Supreme Court." The complaint further avers that at the time of the application for said injunction, the said defendant Winship, together with the other defendants herein, entered into the written obligation upon which this suit is brought, a copy of which is set out in the complaint, and also filed therewith. It also alleges that the plaintiff is the owner in fee of the land so set apart to said Crothers on partition, and was entitled to the possession thereof previous to the time of granting said injunction, and that said partition cause had been determined in the Supreme Court against Winship, and the report of said commissioners, and the judgment thereon, affirmed; and that by reason of said injunction and restraining order, the plaintiff had been deprived of the use of said premises for three years. That Winship, having possession of the land, had appropriated a large amount of grain which the plaintiff had sown thereon, and had consumed a large amount of timber, rails, and other articles of value appertaining to said land, and prays judgment for $500. |