Nov. Term, 1856. FLEECE V. THE INDIANA AND ILLINOIS FLEECE, Administrator v. THE INDIANA AND ILLINOIS CEN- CENT'L RAIL- Suit by a railroad company against an administrator, to recover a subROAD CO. scription of stock made by his decedent. To the subscription the following stipulation was appended: "Said subscription to be paid in two cash notes 500 dollars each, due December 1853 and 1854, and to have certificate when said notes become due." It was insisted arguendo that the company had no power to make such a condition. Held, that if any condition was in fact made, it would, perhaps, be void, and leave the subscription absolute. Wednesday, January 14, 1857. The suit being against an administrator, the Common Pleas had juris- The legislature has not included the actions specified in section 4 of the That act limited the term "civil cases," to that class of common-law ac- The actions contemplated in sections 11 and 12 of the Common Pleas act and section 5 of the Circuit Court act, are different from those specified in section 4 of the Common Pleas act; and statutory provisions touching the former class, do not necessarily affect the latter. APPEAL from the Hendricks Court of Common Pleas. PERKINS, J.-Suit by the Indiana and Illinois Central Railroad Company against George Fleece, administrator of John Stewart, deceased, upon two subscriptions of stock, one of which was as follows: "We, the undersigned, promise to pay the sum of 50 dollars for each share of stock set opposite our names, in such manner and proportions, and at such times, as the president and directors of the Indiana and Illinois Central Railroad Company may direct, without any relief from valuation or appraisement laws. All payments are to bear interest at 8 per cent. from the date of payment until the road is completed. Witness our hands, the date set opposite our names, &c. "Oct. 19, 1853. John Stewart, 20 shares, 1,000 dollars. Said subscription to be paid in two cash notes, 500 dollars each, due the 25th December, 1853 and 1854, and to have certificate when said notes become due. Said Nov. Term, notes are on Levi Pennington." The other subscription is unconditional for eight shares, 400 dollars. 1856. FLEECE V. THE INDIANA AND ILLINOIS ROAD CO. The complaint was demurred to, and the demurrer CENT'L RAILwas overruled. An answer was filed, to which there was a reply. The cause was submitted to the Court. Finding and judgment for the plaintiff The evidence is not upon the record. No exception having been taken to the overruling of the demurrer, the question upon it was not saved. The point pressed, however, in the brief is that the corporation had no power to make such condition as that appended to the subscription. If there is any force. in it, perhaps the effect might be to render the condition void, if one has, in fact, been made, and leave the subscription absolute. Western Plankroad Co. v. Stockton, 7 Ind. R. 500. The remaining point is that the Court had no jurisdiction, the amount claimed being 1,000 dollars and upward. This action was against an administrator; and section 4 of the Common Pleas act gave that Court exclusive jurisdiction, amongst others, of "all actions against executors and administrators." Section 11 of of the same act gave the Common Pleas and the Circuit Courts concurrent jurisdiction "in all civil cases, except for slander, libel, &c., when the sum due," &c. Now, though a suit against an administrator, or to obtain permission for a guardian to sell real estate, &c., may strictly be a civil suit in the broad sense of the term, yet the legislature has evidently not so classified them in the statute under consideration, but has limited the term civil case, to that class of common law actions, not heretofore ranked with equitable or fiduciary, in short, has not included under it those specified in the fourth section above cited. And section five of the Circuit Court act which is relied upon as depriving the Common Pleas of jurisdic MARVIN V. Nov. Term, tion in the case before us, closely follows section 11 1856. of the Common Pleas act, and provides that in slander, libel, &c., and "all other civil actions where," &c., thus plainly evincing that the legislature used the term in the same sense in these portions of both acts. See 2 R. S. p. 260, s. 62, et seq. CARTER. The consequence is, that the actions contemplated in sections 11 and 12 of the Common Pleas act, and in section 5 of the Circuit Court act are different from those specified in the fourth section of the Common Pleas act, and that provisions in the statute touching the former class, do not necessarily affect the latter. This deduction is in accordance with settled rules of construction of statutes. Murphy v. Barlow, 5 Ind. R. 230.-Simington v. The State, 5 Ind. R. 479.-The Mayor, &c. v. Weems et al, 5 Ind. R. 547.-The Board, &c. v. Cutler, 6 Ind. R. 354.-Stayton v. Hulings, 7 Ind. R. 144.-Spencer v. The State, 5 Ind. R. 41. Per Curiam.-The judgment is affirmed with costs. J. S. Miller, H. C. Newcomb, J. S. Harvey, and J. S. Tarkington, for the appellant. C. C. Nave, for the appellee. Wednesday, January 14, 1857. MARVIN, Administrator v. CARTER, Administrator. APPEAL from the Fountain Court of Common Pleas. Per Curiam.-Suit by Carter against Marvin. Verdict for defendant. New trial granted. Exception by defendant. Cause dismissed by plaintiff at a subsequent term, with permission of the Court. No exception taken. Appeal by defendant to this Court. No cause of action or defense appears in the record. M. M. Milford and J. Ristine, for the appellant. Nov. Term, THE STATE. BOGGS v. THe State. A deposition taken in a foreign state will be suppressed, if it appear 1857. APPEAL from the Warren Court of Common Pleas. Wednesday. PERKINS, J.-Prosecution against Boggs for cutting January 14, and taking timber from the land of one John Conner without license. Plea, not guilty. Trial by jury; conviction and fine. The State took the deposition of said John Conner, then residing at Nashville, Tennessee. The notice was served in Warren county, fourteen days before the deposition was to be taken. It specified that the deposition would be taken before E. W. Raworth, a notary public, at his office in Nashville, Tennessee, or by some other person competent to take it. No commission was issued by the clerk to said Raworth, authorizing him to take the deposition. The deposition was taken in the absense of the defendant. The officer certified that the deponent was sworn "according to law, to tell the truth, the whole truth," &c. It is objected, in this Court, that the State could not take a deposition under the statute, without the consent of the defendant, &c.; but this objection was not made below, and, hence, cannot be urged here, in this case. Nov. Term, ROGERS V. STEVENS. It was objected below to the deposition, on a motion to suppress, that no commission was issued; that the notice was not long enough, being but fourteen days; that the deposition was taken at the office of a commissioner, ininstead of a notary, as specified in the notice; that it is not certified that the deponent was properly sworn, &c.; but the deposition was admitted, and exception taken. The same objections are urged in this Court. One of them disposes of the deposition. We think a commission should have been issued by the clerk of the Court pursuant to section 260, 2 R. S. p. 87. No other objection need be examined. Per Curiam.-The judgment is reversed with costs. Cause remanded, &c. R. A. Chandler, for the appellant. R. C. Gregory, for the appellee. 8 464 153 390 ROGERS V. STEVENS and Another. The provision of the statute that when a change of venue is directed the papers shall be transmitted forthwith, &c., means that they shall be transmitted as soon as it can reasonably be done. But the costs must be paid by the party applying for the change, before If, therefore, a party obtaining an order for a change of venue fail to cause. Held, that there was no error in this. A will must be admitted to probate before it can be read in evidence. |