the note in the name of the garnishee and indorsing it to Lewis Shively, the husband, for the reasons stated in the answer could not operate as a severance or division of the proceeds, and change or affect the legal rights of the parties therein.

Having reached the conclusion that there was no severance or division of the proceeds derived from the sale of the land, the next inquiry is, and it is the important and controlling element in the case, that, as the land was held by entireties, does the doctrine of entireties apply to the proceeds derived from the sale of land under the facts alleged in the answer? It is proper here to say that appellant contends with much earnestness that there is no such thing as entireties in personal property, either in a general or modified form, and that, therefore, the interest of the appellee Shively in the proceeds derived from the sale of the land was subject to attachment and garnishment for the payment of his debts; while the appellee, on the other hand, as earnestly maintains the correctness of the positions assumed as we have before indicated them to be. In the determination of this question it does not seem necessary for us to follow the argument of counsel. We have found, in the examination of cases cited, as having been adjudicated by courts of the highest resort in other states besides our own, that the statutes of those states differ with ours. In the notes of Mr. Freeman upon the case of Den v. Hardenbergh, 18 Amer. Dec. on pages 382-388, he has collected the authorities upon this question, and from these authorities it is quite clear that a tenancy by entirety exists in personal property in many of the states In a note on page 382, wherein the declaration of Mr. Bishop in his work on the Law of Married Women is referred to, in which the doctrine of entireties in real property is declared, it is said: "Nothing of this sort is known in respect to personal property.” Mr. Freeman says: "The declaration that nothing in the nature of a tenancy by entirety is known in respect to personal property is supported by a single citation, -Polk v. Allen, 19 Mo. 467; but in a later case in the same state-Shields v. Stillman, 48 Mo. 86-a husband and wife were regarded as tenants by entirety in a promissory note. In the case of Patton v. Rankin, 68 Ind. 245, the court say: "The precise question for our determination is whether a crop raised by a husband upon land held by husband and wife by entireties is subject to levy and sale on an execution against the husband." The holding of the court was "that a crop raised on land held by husband and wife by entireties is held by them in the same manner and subject to the same law as the land itself, and such crop is therefore not subject to levy and sale on an execution against the husband." The opinion in this case is not elaborate, but it is the logical conclusion in following the previous decision of the supreme court that the principle of law declared strongly sustains the answer in the case at bar. Crops, whether growing or severed from the soil, are held to be personal property, and are so treated by the law. The reason of this rule applies

with much force to this case; for if the crops that are growing on real estate held by entireties, or that have been cultivated thereon, can be levied on and sold, then the purpose or reason for the creation of the tenancy would be destroyed.. Nor could the husband sell the crops without the wife's consent, nor could he mortgage them for his debts, because, if he could do so, the result would be the same as if the crops could be levied on and sold; and thereby, in either event, as we have said, the purposes and reasons for the creation of the tenancy would be destroyed. In the case of Bevins v. Cline, 21 Ind. 37, the court say: "In a case, then, where husband and wife held real estate by a conveyance made to them while married, a sale and conveyance by them of such estate would necessarily be joint, and the consideration joint, and not several, and not severable, though it might be divided afterwards. In construing

these cases in their application to estates held by the entireties, taken in connection with the purposes of their creation, does it not logically and necessarily follow that the proceeds derived from the sale of the real estate held by the entireties is joint, and not several, and not severable until by some act of the parties themselves, to which both agree, it is divided between them? We are therefore of the opinion that the court ruled correctly in overruling the demurrer to the answer. The case is affirmed, at the appellant's costs.

1. Where a man has had large experience with the pedigrees of horses by being in the horse business for 40 years, and by publishing and editing several works relating to horses, he is qualified as an expert to testify to the pedigree of a certain horse.

2. A new trial will not be granted on the ground of newly-discovered evidence of three witnesses, where the testimony which the first would give was known before the trial, and a subpoena was issued, but, although he did not appear, no stay was asked; and the testimony of the second was known on the second day of the trial, but no subpoena was served nor stay demanded; and the testimony of the third is merely cumulative, and there is no showing that it would probably have changed the result.

3. The suppressed portion of a deposition will not be considered on appeal, where not made a part of the record.

4. Alleged error in the admission of certain evidence will not be considered when no grounds or reasons are given for excluding it.

Appeal from circuit court, Fountain county; E. C. SNYDER, Special Judge.

Action on a promissory note by Frank C. Fleming and another against Ezra Mc Clafflin and another. From a verdict and judgment for defendants, plaintiffs appeal, W. L. Rabourn, for appellants. W. B. Durbarrow, for appellees.

ROBINSON, J. The appellants, who were the plaintiffs in the court below, commenced this action against the appellees

66

upon a promissory note which appellants held by assignment. The appellees answered in four paragraphs: (1) General denial. (2) That the note was given for the unpaid balance of the purchase price of a stallion named Bonner, sold the appellees by Nicholas Lape, the original payee in the note, warranted to be 12 years of age, and to have the following pedigree: Bonner was sired by a stallion called Robert Wilson, of Kentucky, and Robert Wilson was sired by Rysdyke's Hambletonian;" that appellee believed the warranty to be true, but it was false; and the third paragraph contained similar averments to the second in its general statements and alleged false and fraudulent representations by the seller regarding the age and pedigree of the horse; that appellees relied thereon, and that they were false. (4) Payment. Appellants demurred to the second and third paragraph of the answer, which was overruled, and then replied to the answer by general denial. The cause was tried by a jury, resulting in a verdict for the appellants. There was a motion for new trial, which was overruled, and excepted to. The errors assigned by the appellants are: (1) The court erred in overruling appellants' demurrer to the second paragraph of appellees' answer; (2) the court | erred in overruling appellants' demurrer to the third paragraph of appellees' answer; (3) the court erred in overruling appellants' motion to suppress the deposition of M. A. Randall, and parts thereof included in appellants' motion filed March 5, 1889; (4) the court erred in sustaining the appellees' motion to amend the second and third paragraphs of the answer; (5) the court erred in overruling appellants' motion to suppress the deposition of M. A. Randall, filed May 8, 1889; (6) the court erred in overruling appellants' motion for new trial.

The third, fourth, and fifth assignments of error are properly causes for new trial, and were made such in the motion, and properly come under the error assigned in overruling the motion for new trial. We cannot consider the first and second assignments of error, to-wit, error in the court in overruling the demurrer to the second and third paragraphs of the answer. There is no available error in this court saved in the record. From the record, it does not appear that the ruling of the court on the demurrer to these answers was excepted to. The fifth, sixth, and seventh causes for new trial raise the question of the alleged error in the trial court in permitting the appellee to read in evidence certain parts of the deposi tion of M. A. Randall on the trial of said cause, taken on behalf of the appellee, and in overruling appellants' motion to suppress said deposition, and suppress and strike out certain parts thereof. The testimony of this witness on direct examination contained 22 questions and answers. The court sustained appellants' motion as to all of the questions and answers on direct examination, except 1, 2, 3, 4, 5, 6, 10, 11, 12, 13, 20, 21, and 22. There was no objection to other parts of the deposition, and these questions and answers, with

|

the cross-examination and redirect examination, were read in evidence on the trial of the cause. The first four questions in the direct examination were merely preliminary and introductory, and, in connection with the fifth, show the qualification of the witness to testify as to facts afterwards elicited, and to show that upon questions concerning the pedigree of horses the witness is an authority. The witness then answered the questions hereinafter set out: "Question 5. If you know of a certain horse known as Rysdyke's Hambletonian, you may so answer. Answer. I know of him through trotting registers, through stud-books, through advertisements, and through an intimate acquaintance with his get.' ""Q. Where was said Rysdyke's Hambletonian sired and kept? A. In Orange county, N. Y., all his life; was never out of the county.' Q. 10. What relation, if any, was this horse, Robert Wilson, to Rysdyke's Hambletonian? A. None at all." "Q. 12. What acquaintance had you with the horse known as 'Hamerick's Hambletonian?' A. I saw him exhibited several times at the state fair, is all. Q. 13. What, if any, relation was the horse known as 'Hamerick's Hambletonian' to Hambletonian? A. None at all." "Q. 20. What, if any, acquaintance have you with horse known by the name of 'Bonner?' A. There are several horses in the Register called Bonner.' There is one Satelite, but the only one I know is one Robert Bonner, got by a horse called Mambennello. He was bred in Bourbon county, Ky. Stood awhile there. Was brought to Rush county, and stood awhile, and was taken back to Bourbon county, and died there. I brought him myself to Rush county. Q. Was this Bonner ever owned by W. P. Swain? A. No, sir."

The appellants assail the admission of this evidence with much vigor, and ask us to compare the evidence that was permitted to go to the jury with the suppressed part of the deposition. That we cannot do. The suppressed part of the evidence is not in the record. The question must be determined by the evidence that the court permitted to go to the jury. From the testimony of this witness in answer to questions 1, 2, 3, and 4, which are preliminary and introductory, it appears that the witness resided in the city of Indianapolis, and had been engaged for 10 years in the publication of the Western Sportsman; was author of the American Pacing Register, which he was compiling for publication; that he had experience in the pedigree of horses, in writing about them, and from being in the horse business for at least 40 years. To that part of the testimony of this witness in which he testifies from personal knowledge there can be no objection; but the objection is made to the portion of the testimony in which the witness testifies to his experience, knowledge, and skill in the breeding of horses, and in the pedigree of horses. Upon the facts stated in this testimony, the appellees contend that the evidence was admissible, for the reason, among others stated, that it was expert testimony, or that it was evidence of facts

which are the result of scientific knowledge, and was not incompetent as being hearsay evidence or information gleaned from books or records. In arriving at a conclusion upon this question, we think it proper to take into consideration the fact that the subject of pedigree in horses, the breeding of horses, their speed, sire, improvement in the stock, and other mat ters connected with their development and breeding, has become a business of much importance. With many it has become a profession, requiring experience, skill, and knowledge; and that breeders, agriculturists, and stock men are largely engaged in it; that journals are published, books written, and records and registers are kept, to promote the business; that it requires skill, knowledge, and science to understand and become experts in the business, which is obtained not only from personal experience, but from books, journals, records, registers, and other sources of information. A medical expert may testify as to a knowledge of facts cited by medical works, and yet the books from which he obtained the knowledge of the facts about which he testifies are not admissible. Experts may testify as to any art, science, trade, or mystery In the case of Railway Co. v. Hale, 93 Ind. 79, it is said: "The general rule is that a witness must not give his opinion, but must testify as to facts. To this rule there are some exceptions. The opinion of an expert in any art, science, trade, profession, or mystery may be given where it is proper for the decision of a question relating to the issue in a case. In Com. v. Sturtivant, 117 Mass. 122, cited in this case, it was said: "The exception to the general rule that witnesses cannot give opinions is not confined to the evidence of experts testifying on subjects requiring special knowledge, skill, or learning, but includes the evidence of common observers testify ing to the result of their observation made at the time in regard to common appearances of facts, and a condition of things which cannot be reproduced and made palpable to a jury. It is further said in the case in 93 Ind. 81, supra: "The opinion of experts may be taken in matters of art, science, etc.. because, even though they be able to give the facts, special knowledge is required to draw correct conclusions therefrom. In the case of City of Fort Wayne v. Coombs, 107 Ind. 75, 7 N. E. Rep. 743, Judge ELLIOTT, in delivering the opinion, quotes with approval the following cases: "Whether he is competent to testify at all as an expert is a question for the court; but, after he has been allowed to testify, the weight of his evidence is a question for the jury. Davis v. State, 35 Ind. 496. "It is the doctrine of the authorities that a study of a business, without practical experience, will qualify a witness as an expert. Howard v. Great Western, etc., Co., 109 Mass. 384; Swett v. Shumway, 102 Mass. 365. It is also held that, where a witness has studied an art or science, he may be deemed an expert in a kindred art or science. Barnes v. In. galls, 39 Ala. 193. In the case of Slocovich v. Insurance Co., 198 N. Y. 56, 14 N. E. Rep. 802, it was held that "an expert called

to testify as to the value of a vessel is not confined to an opinion based upon his personal knowledge. He may speak from information obtained from the general records, containing descriptions of vessels used and resorted to by shipbrokers and owners and underwriters in their business." The witness in the case in 108 N. Y. 56, 14 N. E. Rep. 802, supra, was a ship-broker, and testified to the value of a ship he had seen but once 10 years before, but knew of her age, tonnage, and condition from ship records, which was the only source of information. The court says in the opinion: "It is not a sufficient objection to the competency of the witness that he had no personal knowledge of the ship. An expert is qualified to give evidence as to things which he has never seen. He may base an opinion upon facts proved by other witnesses, or upon facts assumed and embraced in the case. Questions may be put to him assuming the facts upon which he is asked to base his judgment and express an opinion. In this case, the question put to the witness might have assumed the age, character, condition, and quality of the vessel, and he could have been asked to give an opinion as to her value, based upon such facts; or the facts relating to the vessel apearing in the books and records which he referred to, and which were also proved upon the trial, might have been assumed in the question put to the witness, and he asked to give an opinion as to her value based upon them." The statement in this case upon the question of the competency of the evidence of the witness Randall very strongly sustains the ruling of the trial court in the case at bar. The evidence of this witness was important and material to the issue under the second and third paragraphs of the answer, and went directly to the averments in the answer that the pedigree of the horse was not truly stated, that the stallion was not sired by Robert Wilson, of Kentucky, but by another and different horse; that said stallion was not a descendant of Rysdyke's Hambletonian, and was not of the Hambletonian stock or breed of horses. Other questions, both in favor of and against the admissibility of this evidence, are presented in argument; but, having arrived at the conclusion that it was admissible on the ground indicated, it becomes unnecessary to consider them. The court did not err in its rulings on this evidence.

The appellants call our attention to other alleged incompetent evidence admitted upon the trial. No objection is pointed out to the evidence; no reason whatever is given, and no argument is made, as to why error was committed in admitting it. As to this evidence, no question is before this court. Nowlin v. Whipple, 89 Ind. 490; Irwin v. Lowe, Id. 540; Liggett v. Firestone, 102 Ind. 514, 26 N. E. Rep. 201.

The appellants assign as one of the causes for new trial that of newly-discovered evidence. The newly-discovered evidence upon which appellants base this cause in the motion for new trial was the evidence of three persons, to-wit, H. R. Cadwallader, William Sharpe, and Dr. T. B. Campbell. From the record it appears

that the evidence Cadwallader would give was known to appellants on the morning of the second day of the trial, and that Dr. Campbell had been subpoenaed as a witness in the case. It does not appear that appellants took any steps to procure the attendance of said witness other than by service of subpoena on Dr. Campbell, or took any steps to delay the case, to procure the testimony of said witnesses, or took any steps to enforce the attendance of said witnesses. William Sharpe, in his affidavit, states the evidence he would give. It was merely cumulative. It does not appear that the evidence would probably change the result, or that it would have in any way influenced a different result, had it been introduced, and appellants do not attempt to show in what way the evidence would have probably changed the result, or in any influenced a different verdict. There was no error in the ruling in this cause in the motion for a new trial. Simpson v Wilson, 6 Ind. 475; Bronson v. Hickman, 10 Ind. 3; State v. Clark, 16 Ind. 97; Hines v. Driver, 100 Ind. 315.

The court of its own motion gave the jury nine instructions, which were all the instructions given in the cause. An alleged error in these instructions is also assigned as cause for new trial. The instructions, taken together, contain a correct statement of the law, and embrace all the issues in the cause. There is no valid objection made to them, or any one of them; indeed, the appellant makes but little attempt to assail them. The evidence tended to sustain the verdict. We have now disposed of all the questions presented in the argument that have been saved in the record. There is no error in the case for which it should be reversed, but the case should be affirmed, and is therefore affirmed, at the costs of the appellants.

In a criminal prosecution for obstructing a highway, it is not error to instruct a verdict of "not guilty," where the evidence failed to show that the alleged highway had been established by law or by prescription or dedication.

Appeal from circuit court, Porter county; GEORGE BURSON, Judge pro tem.

C. N. Martin, W. H. Dowdell, and N. J. Bosarth, for the State. E. D. Crumpacker, for appellee.

ROBINSON, J. The appellee was arrested and tried before a justice of the peace upon an affidavit charging him with obstructing a public highway. The trial before the justice resulted in finding appellee guilty, and assessing his fine at five dollars and costs. Appellee appealed to the Porter circuit court. In the circuit court the case was tried by a jury, and, after all the evidence had been heard, the counsel for the appellee moved the court to direct the jury to find in favor of the appellee; and the court, over the objections and exceptions of the state, instructed the jury

as follows; which were all the instructions given to the jury in the case, to-wit: "Gentlemen of the jury, having examined the law with reference to the evidence in this case, the court is of the opinion that the evidence does not prove the defendant guilty beyond a reasonable doubt. I therefore direct you to return a verdict for the defendant. Let one of your number sign this verdict as foreman." And thereupon the jury returned into court a verdict finding the appellee not guilty. Judgment was rendered upon the verdict, and the appellee was discharged. This appeal is prosecuted by the prosecuting attorney, under section 1882, Rev. St. 1881. The evidence is in the record. Under the assignment of errors, it is alleged that the court erred in giving said instruction to the jury. It is also alleged that the court erred in refusing to admit certain evidence on the trial of the cause offered on the part of the state, and in sustaining appellee's objection to said evidence, and in permitting appellee to introduce certain evidence on the trial of said cause. Our attention is first directed to the alleged error in the court in giving the instruction we have heretofore set out to the jury. The appellee has not favored us with a brief of the views entertained of the questions raised in the record. The appellant assails this alleged error in the trial court on the ground that the giving of this instruction was an invasion of the province of the jury, who alone, in criminal cases, have the right to determine the law and the evidence. While this position is assumed with much confidence, although the evidence is in the record, no claim is made that there was any evidence in the case that would have justified a conviction of the appellee. It is not necessary in this case to enter into a discussion as to the propriety or impropriety of the instruction as applied to criminal procedure in general, nor to decide as to the discretion the court may exercise in cases where it is apparent the evidence would not warrant a conviction. The jury being the judges of the law and the facts in criminal cases, the instructions of the court are merely advisory, and not obligatory. Nuzum v. State, 88 Ind. 599; McDonald v. State, 63 Ind. 544; Keiser v. State, 83 Ind. 234; Fowler v. State, 85 Ind. 538. In the case of State v. Banks, 48 Ind. 197, the court instructed the jury, under the facts, to return a verdict of not guilty. It is said by the supreme court, in affirmance of that case, “that a court, in charging a jury, has no right to assume the guilt of the accused, or that a fact has or has not been proved, or to express any opinion or manifest a leaning upon evidence which should be submitted to the jury; but when there is no evidence, or none upon a particular point upon which a conviction could be based, the court has a right to say so, and direct the jury to find the defendant not guilty." This statement of the law is directly in point in the case at bar, because there were no facts proven in this case which could have warranted a conviction. The evidence wholly failed to show that the alleged highway claimed to have been obstructed had been established by law,

or that the general public, under claim of right, and not by permission of the owner, used the same without interruption or substantial change for a period of 20 years or more, or that there was an actual intention on the part of the owners to dedicate the land to the public, or that there had been any acceptance by the public of the land claimed to have been dedicated. In fact, the evidence failed to show any of the elements essential and required to establish a highway by prescription or dedication, it not having been established by law. This case, in many of the facts, comes directly within the decision of the case of Shellhouse v State, 110 Ind. 509, 11 N. E. Rep. 484. We have carefully examined the questions raised as to error in the court in admitting certain evidence, and in refusing to admit certain evidence, and do not find any error committed by | the court in the rulings upon the evidence. There is no error in the case for which it should be reversed. It is therefore affirmed.

CRUMPACKER, J., having been of counsel, was absent.

(1 Ind. A. 530)

DOHERTY V. RAMSEY.

(Appellate Court of Indiana. May 28, 1891.) ASSIGNMENT FOR BENEFIT of CreditorS-EXEMPTIONS-DEMAND OF SET-OFF-WAIVER-FRAUD.

1. Rev. St. Ind. § 2670, as amended by Act March 29, 1879, provides that, if an assignor for the benefit of creditors be a resident householder, the appraisers shall set off to him such property mentioned in the inventory as he may select, not exceeding in value $600. Held, that where an assignor, a few days before the appraisement, asked his assignee to set off certain property which the latter promised to do, the assignor's failure, by reason of sickness, to be present at the appraisement, will not constitute a waiver of his right to such set-off.

2. An attempt by the assignor to commit fraud by assigning $10,200 to another for his own use, a few days prior to his assignment, will not affect his right to exemption, particularly when, subsequent to the assignment, he gave his assignee an order on such person for the money.

Appeal from circuit court, Montgomery county; E. C. SNYDER, Judge.

Hurley & Clodfelter, for appellant. Davidson & West, for appellee.

CRUMPACKER, J. On the 3d day of September, 1889, Marshall D. Doherty executed a deed of assignment of all his property for the benefit of all of his creditors to Alexander F. Ramsey, as assignee, who assumed the duties of such trust. The deed of assignment was duly recorded, and the assigneee procedeed to inventory and appraise the property, and thereafter sold the same in the execution of the trust. The Montgomery circuit court had jurisdiction of the proceedings, and at the November term, 1879, of said court, Doherty filed a petition against the assignee, asking an order directing him to pay the petitioner out of the assets of the estate the sum of $600 claimed by him under the exemption laws of the state. The petition is in the following form: "Your petitioner, Marshall D. Doherty, represents and shows to the court that heretofore, towit, on the third day of September, A. D.

1889, he made an assignment of all his property, both real and personal, for the benefit of all of his creditors, to one Alexander F. Ramsey, who accepted said trust, and is now his lawful assignee; that within thirty days after entering upon the duties of his trust, the assignee made, under oath, a full and complete inventory of all the property, real and personal, of the rights, credits, interests, profits, and collaterals which came to his hands, or of which he may have obtained knowledge, as belong. ing to said assignor, and caused the same in said inventory to be appraised by two reputable householders of the neighborhood, who, before proceeding to discharge their duties, took an oath to honestly appraise the property mentioned in the inventory filed by the said trustee in the recorder's office of Montgomery county, Ind.; that your petitioner is a resident householder of the state of Indiana, residing in the city of Crawfordsville, Ind., and, as such, he is entitled to the benefits of the exemption laws of the state of Indiana, under section 703 of the Revised Statutes of 1881, to the amount of six hundred dollars, and that all of his indebtedness accrued since May 31, 1879, on contracts only; that, at the time of said inventory and appraisement, the assignor was sick and unable to get out of his house, but had a few days previous thereto seen the assignee, and requested and demanded of him that six hundred dollars in value of said property be appraised and set off to him as exempt from sale for the payment of his debts; that said assignee, Ramsey, then and there agreed that buggies, carriages, and harness sufficient to make six hundred would be set off to him at their appraised value by the appraisers; that said assignor selected said buggies, carriages, and harness as the property he desired set off to him as exempt from sale, and expected said buggies, carriages, and harness would be set apart to him as exempt from sale for the payment of his debts, as such resident householder, by said appraisers; and he intended to be present at said appraisement, but by his sickness he was unable to be present at the time said inventory and appraisement was made; and the said assignee Ramsey failed and neglected to have the apprais. ers set apart said property as exempt from sale, as he had theretofore demanded, and as said assignee had promised and agreed to do, and, without his (Doherty's) fault or neglect, said assignee neglected and refused to set said property off to him; that said assignee has now on hand sufficient amount of money to pay him said sum of six hundred dollars. He therefore asks the court to make him an allowance of six hundred dollars in and out of said estate, that he is justly and legally entitled to under the law, and that said assignee be authorized by the court to pay said assignor said sum of six hundred dollars.

The assignee appeared to the petition, and filed his answer thereto, as follows: "Alexander F. Ramsey, assignee herein, for answer to the petition of his assignor, Marshall D. Doherty, filed November 4, 1889, and numbered 2,151, praying for an