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Cottrell et al. 1. Cottrell.

evade a wise law, and would encourage the manufacturing of testimony. If courts were to tolerate such a practice, it would send to the jury the statement of a party without the restraint imposed by an oath. It would be far more likely to result in evil than to permit the party to speak to the jury from the witness stand. In the one case it would be sworn testimony, in the other not. What may not be done directly, can not be accomplished by indirection. Clift v. Shockley, 77 Ind. 297. Suppose, for the sake of illustration, that John Doe has a claim against the estate of Richard Roe, deceased, and that he goes to the administrator, or to any other person, and, in detail, states the nature of his contract. Could the claimant, in such a case, prove his own declarations for the purpose of establishing his claim ? If he could, then all any claimant need do is to pour into the ear of some one his unsworn account of a transaction, and thus make good his claim.

The appellee was permitted to testify as to the statements made by him to the witness, Isaac Cottrell. This was error. A party can not, by the rehearsal of a transaction with a deceased person, place himself in a situation entitling him to testify as to what he said to another about such transaction.

The rule allowing a party, in an action against heirs, upon a contract with their ancestor, to testify as to matters occurring subsequent to the ancestor's death, does not permit him to recite his version of an alleged contract with the deceased, and thus get it before the jury.

John Dayton was the guardian of one of the minor appellants, and as such was in attendance at court. A motion was made to separate witnesses, and the court excluded Dayton from the court room, because he was a witness. This ruling was erroneous. In Larue v. Russell, 26 Ind. 386, it was said of the exclusion of a party: “This proceeding is probably without a precedent. The right of a party litigant to be present during the trial of his cause, that he may be heard in his own behalf, has been so long accorded by universal custom, and is so obviously necessary for the security of private rights, that

Leary et al. v. Smith et al.

the refusal to entertain the cause at all would scarcely be a greater error than the denial of this privilege. Besides, it is secured by plain and positive statute.”

The fact that the party acts in a representative capacity does not make any difference. The guardian is bound to maintain the interests of his ward quite as earnestly and carefully as if they were his own, and his presence in court is as important as if the case were against him individually.

Other questions are discussed, but, as the judgment must be reversed for the reasons stated, we deem it unnecessary to consider them.

Judgment reversed.

No. 9109.

LEARY ET AL. v. SMITH ET AL.

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MARION SUPERIOR COURT.-Special and General Tern.- Appeal to Supreme

Court.-— Assignment of Errors. -An appeal will not lie to the Supreme Court from a judgment of the Marion Superior Court at special term, but only from the judgment of that court in general term. Therefore, in such a case, the only proper assignment of error, on appeal to the Supreme Court, is that the superior court, in general term, had erred in affirming or reversing, as the case might be, the judgment of the court at special term.

From the Marion Superior Court.
J. B. Julian and J. F. Julian, for appellants.

J. E. McDonald, J. M. Butler, G. C. Butler, F. B. Mc-
Donald, R. W. Harrison and B. S. Higgins, for appellees.

HOWK, J.—In this case, the appellants, the defendants below, have appealed to this court from the judgment of the Marion Superior Court, in general term, and have endorsed upon the record the following assignment of errors :

Leary et al. v. Smith et al.

“The appellants, by counsel, come and say that the court below erred in this cause, as shown by the within record :

“1st. In overruling appellants' motion to set aside default and publication of notice, in the Boone Circuit Court.

“2d. In overruling appellants' motion to set aside default and publication of notice in the Marion Superior Court.

“3d. In refusing Honora Leary a change of venue from the Marion Superior Court, and from the judge.

“4th. In refusing to grant a new trial of the cause."

It will be observed, that not one of these supposed errors is based upon the action or decision of the court, in general term. In appeals to this court from the Marion Superior Court, it has been uniformly held, that the only proper assignment of error here is, that the court, in general term, had erred in its decision in affirming or reversing, as the case might be, the judgment of the court at special term. Such an assignment of error will bring before this court the errors assigned in the court below, in general term, and none other; and, without such an assignment of error here, no question will be presented for the decision of this court. Wesley v. Milford, 41 Ind. 413; Cline v. Love, 47 Ind. 258; Coffin v. Campbell, 68 Ind. 452; Beineke v. Wurgler, 77 Ind. 468.

The obvious reason for these decisions is, that the statute, under which the Marion Superior Court is organized, does not provide for any appeal from any order or judgment of the court, at special term, directly to this court; but, in section 27 of the statute, it is provided that “Any party may appeal to the Supreme Court from the order or judgment of general term,” etc. 2 R. S. 1876, p. 27; section 401, Civil Code of 1881 ; section 1362, R. S. 1881.

We find no available error in the record of this cause.
The judgment is affirmed, with costs.

Bolin et al. l. Simmons.

No. 8472.

92

BOLIN ET AL. V. SIMMONS.

81 136 613 81 92 147 124

81 92 150 290

81 92 156 351

ASSIGNMENT OF ERROR.-Practice.- Demurrer.-- Where the record shows the

sustaining of demurrers to different answers, an assignment that the court erred in sustaining the demurrer to the answer is too indefinite. The

particular answer intended should be designated. SAME.- New Trial.--Causes for a new trial can not be assigned as error. The

proper assignment is upon the overruling of the motion for a new trial.

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From the Hancock Circuit Court.
R. D. Logan and A. A. Falkenburg, for appellants.

WOODS, J.-Appeal from a decree of foreclosure of a mortgage upon real estate. The appellee has filed no brief. The appellants have assigned the following errors:

1st. The finding is contrary to law.
2d. The finding is contrary to the evidence.
3d. The court assessed the damages too high.

4th. The court erred in overruling the demurrer to the complaint.

5th. The court erred in sustaining the demurrer of the plaintiff to the defendants' answer.

The complaint is unquestionably good. Demurrers were sustained to more than one answer, and to other answers were overruled. It is, therefore, impossible to know to what answer the 5th specification of error refers. Besides the appellants' brief is silent in reference to the rulings on demurrer.

The first, second and third specifications are proper causes for a new trial, but are not proper specifications in an assignment of errors. The proper assignment would have been that the court erred in overruling the motion of the appellants for a new trial. This has been often decided.

Judgment affirmed, with costs.
Petition for a rehearing overruled.

Pancake v. The State.

No. 10,085.

PANCAKE v. THE STATE.

INTOXICATING LIQUOR.- Beer.— Selling on Sunday.--Evidence.--On trial of

an indictment for selling liquor on Sunday, evidence, to wit: “Am sure it was on Sunday. Mr. K. got a glass of beer for himself and one for me. Defendant handed us the liquor; K. paid for it five cents a glass ; beer is an intoxicating liquor,” shows that the beer so sold was an intoxica

ting liquor, and is sufficient to sustain a conviction. SAME.--Instruction.--Assuming Fact.Jury.--On such trial, it was error to

instruot the jury: “It would be a legitimate inference for you to draw that the witness, in saying beer was intoxicating, had reference to the beer spoken of by him when he said he had purchased beer of the defendant.” The inference from the facts is a question for the jury, and not a

matter of law for the court. SAME.--Construing Evidence.-- Practice.-- Upon a motion for a new trial, chal

lenging the sufficiency of the evidence, a court is authorized to give a construction to the testimony of witnesses which it may not do when

giving the cause to the jury. SAME.--If the evidence show that liquor was sold on some Sunday within

two years prior to the return of the indictment, it need not fix the precise Sunday within that time. From the Bartholomew Circuit Court. G. W. Cooper, for appellant.

D. P. Baldwin, Attorney General, W. W. Thornton and W. Dixon, Prosecuting Attorney, for the State.

NIBLACK, J.-On the 19th day of December, 1881, an indictment was returned against Frank Pancake, the appellant, for selling intoxicating liquor, in a less quantity than a quart, to one Charles Knowlton, on the 28th day of August, 1881, being the first day of the week, commonly called Sunday.

A jury returned a verdict of guilty as charged, assessing a fine of ten dollars against the appellant, and, first refusing to grant a new trial, the court rendered judgment upon the verdict.

Questions are made here upon the sufficiency of the evidence to sustain the verdict, and upon certain instructions given to the jury.

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