HOAGLAND V. ROE. Seire facias to obtain a ca. sa. upon a judgment, under the code of 1843. The affidavit charged the defendant, in the language of the statute, with having effects out of which, &c., and which he fraudulently concealed, &c. Pleas, inter alia, 1. That the defendant was a householder, &c., and the property was exempt from execution. Demurrer sustained. 2. That no writ of fi. fa. was issued against him; but that he was ready and willing at the time of the rendition of the judgment, had ever since been, and still was, to surrender sufficient property to satify the judgment, &c. Demurrer to this plea sustained, and refusal to permit the defendant to prove the facts alleged in it. Held, that the demurrer to the first plea was correctly sustained. It should have averred that the defendant was a resident householder. Held, also, that the rulings touching the second plea were erroneous. ERROR to the Randolph Circuit Court. Nov. Term, 1856. HOAGLAND V. ROE. December 5. PERKINS, J.-Scire facias to obtain a ca. sa. upon Friday, a judgment. The proceeding was under the code of 1843. The affidavit charged the defendant, in the language of the statute, with having effects with which the judgment might be paid, and which he fraudulently concealed to defraud the plaintiff. This charge the defendant was called upon to answer. He pleaded several matters in defense. Among them, that he was a householder, &c., and that the property was exempt from execution. This plea was held bad on demurrer, and rightly. It did not aver that the defendant was a resident householder, while it is only such that are entitled to the privilege of the statute. The defendant also pleaded that no writ of fieri facias issued against him, but that he was ready and willing at the time of the rendition of the judgment, had ever since been, and still was ready to surrender to the sheriff sufficient property to pay the debt and costs. The Court sustained a demurrer to this plea, and, on the trial, refused to permit the defendant to prove the facts alleged in it. The case is without briefs. We are not advised of the grounds upon which the Court made the rulings in question. It seems to us that they were erroneous. Nov. Term, 1856. GRAHAM V. The plaintiff charges the defendant with fraudulently concealing his property to prevent the payment of the given debt. That charge, the defendent certainly could THE EVANS- be allowed the privilege of disproving. And if he had been at all times ready to deliver up sufficient property to pay the debt when called on, it could scarcely be true that he was attempting to defraud the creditor. At all events, the fact would tend to rebut such a purpose. VILLE, &C. Per Curiam.-The judgment is reversed with costs. Cause remanded for a new trial, with leave to reform issues. B. McClelland, for the plaintiff. W. A. Peelle and T. J. Sample, for the defendant. Friday, GRAHAM V. THE EVANSVILLE, INDIANAPOLIS, AND CLEVE- APPEAL from the Daviess Circuit Court. Per Curiam.-The judgment in this case is reversed with costs, and the cause remanded for further proceedings, on the authority of Indiana Central Railway Company v. Hunter, at this term (1). O. H. Smith, for the appellant. L. Q. De Bruler and R. A. Clements, Jr., for the appellee. (1) Ante, 74. STEVENS V. HAYS. Nov. Term, 1856. THE MADISON AND INDIAN To give a written instrument an effect different from what its language APOLIS RAILplainly imports, the proof must be clear. ERROR to the Dearborn Circuit Court. Per Curiam.-Bill to redeem lands. Bill dismissed. The bill alleged that certain absolute deeds were intended as mortgages. The answer denied the allegations of the bill in that regard. The proof was very conflicting-leaving the question of fact in uncertainty. Under such a state of facts, the bill was rightly dismissed. The rule of law is, that to give a written instrument an effect different from what its language plainly imports, the proof must be clear. Linn v. Bar key, 7 Ind. R. 69.-4 Blackf. 67. This case was not The judgment below is affirmed with costs. ROAD CO. V. BURNETT. Friday, December 5. THE MADISON AND INDIANAPOLIS RAILROAD COMPANY v. BURNETT. APPEAL from the Johnson Circuit Court. Friday, Per Curiam.-The judgment in this case is reversed December 5. with costs, and cause remanded for a new trial, on the authority of The Madison and Indianapolis Railroad Company v. Whiteneck, at this term (1). Nov. Term, 1856. THE NEW AL BANY AND SALEM RAIL- V. CHAMBER- W. M. Dunn and J. A. Hendricks, for the appel lant, F. M. Finch, for the appellee. (1) Ante, 217. Friday, THE KNIGHTSTOWN AND SHELBYVILLE RAILROAD COMPANY v. LINDSAY, Administrator. APPEAL from the Shelby Circuit Court. Per Curiam.-We have heretofore decided that section 3, of an act approved May the 11th, 1852, upon which this suit is founded, has been virtually repealed by section 784 of an act approved June the 18th, 1852. 1 R. S. p. 426.-2 id. p. 205.-Peru and Indianapolis Railroad Company v. Bradshaw, 6 Ind. R. 146. Upon the authority of the case just cited, the judg ment of the Circuit Court in the case before us must be reversed. The judgment is reversed with costs. W. J. Peaslee, for the appellant. M. M. Ray, for the appellee. Friday, December 5. THE NEW ALBANY AND SALEM RAILROAD COMPANY . CHAMBERLAIN. APPEAL from the White Circuit Court. Chamberlain filed a complaint before a justice of the peace, against James Brooks, president of the New Albany and Salem Railroad Company, for the killing of a cow valued at 40 dollars. The summons was served on the conductor of a railroad train on said railroad by copy, and on the return Nov. Term, 1856. THE NEW AL BANY AND SALEM RAIL- V. day of the summons a judgment was rendered against CHAMBERLAIN James Brooks, president, &c., for the amount claimed, by default, from which he appealed to the Circuit Court. On the calling of the case in the Circuit Court, Brooks moved to dismiss the suit for want of sufficient notice and service of process, but the plaintiff interposed a motion for leave to amend his complaint, which was granted, and the complaint changed so as to make the appellant the defendant instead of Brooks. The constable was also permitted to amend his return of service upon the summons, so as to show that it was served upon a conductor of a train of cars on the appellant's railroad; and the Court then ordered the case to stand docketed, and proceed against the appellant instead of against Brooks. To all these rulings and orders of the Court, the appellant excepted. The case was submitted to the Court, and the value of the cow found to be 40 dollars, whereupon a judgment was rendered for the sum of 80 dollars, twice her value, and a docket fee of 5 dollars against the appellant. Per Curiam.-As to the amendment in this case, see Laiman v. The New Albany and Salem Railroad Company at this term (1). The Court below erred in giving double damages. Madison and Indianapolis Railroad Company v. Whiteneck, at this term (2). A remittitur cannot be allowed in this case of simply the double damages; because in the Circuit Court the defendant may have reduced the judgment 19 per cent. below that rendered by the justice, which would leave the sum for which judgment should have been given. We do not know what that reduction was, and hence, there is no certain amount which we can fix as the sum to be remitted. |