support of their motion, the statements in the affidavit not having been May Term, controverted by the adverse party. The truth of facts alleged in an affidavit in support of a motion for a new trial, may be controverted by the adverse party. APPEAL from the Cass Circuit Court. GOOKINS, J.-Chambers and wife, who were the plaintiffs below, claimed damages against the appellants for constructing their road through the plaintiffs' lands. Appraisers were appointed, pursuant to the statute, who assessed the damages at 500 dollars, from which assessment the railroad company appealed to the Circuit Court, where there was a trial and verdict for the plaintiffs for 888 dollars and 88 cents. Motion for a new trial overruled, and judgment. The railroad company appeals. In support of the motion for a new trial the appellants read the affidavit of Williamson Wright. The affidavit states that "he is director of the Newcastle and Richmond Railroad Company, which is now changed under the law of Indiana to the name of the Cincinnati, Logansport and Chicago Railroad Company; that he is the general agent and superintendent of the line of road north of Madison county, and, as such, had full power and authority to employ counsel and manage and control the officers of said company. That under such authority he, with Cyrus Taber, a heavy stockholder in said road, called upon Mr. Daniel D. Pratt, an attorney, to retain generally his services as attorney for the company, and at such interview it was agreed by and between the parties, as defendant understood, by your affiant, that said Pratt was retained and employed as the attorney of the Newcastle and Richmond Railroad Company in all cases then pending, except one of one Henry H. Helm, in which he was personally employed, and in all cases that might in future arise in which the company was a party; and was to be paid such reasonable fees as might be demanded for such services. That said Wright relied upon said employment, and supposed that said Pratt was the counsel in said cause, and called upon Stephen Taber, a partner of said Daniel D. Pratt in the practice of law, to have the wit 1855. THE NEW- RICHMOND V. CHAMBERS. Thursday, CASTLE AND RAILROAD COMPANY V. CHAMBERS. May Term, nesses subpoenaed, just before the sitting of the Court, 1855. and was then informed that Mr. Pratt was employed for THE NEW- Thomas Chambers, as counsel in his cause. That your RICHMOND affiant called upon Mr. Pratt, and found he considered himself as employed by said Chambers before his employment by the company. That this was on the first day of the present term of this Court, and your affiant's urgent business required his immediate presence in Cincinnati, connected with the road. That he called upon Daniel D. Pratt, and told him of his reliance upon him for his legal services, and the inability to have another attorney employed and facts and defence made known, as your affiant's immediate presence was required in Cincinnati. That said Pratt agreed to continue the case over to the latter part of the second week, and your affiant left expect ing to return and in person attend to said suit, as your said affiant understood from said Pratt that the said cause should be continued to the third week, if the business should keep the Court so long in session, and your affiant should not return. That your affiant employed no one, nor did any authorized agent employ an attorney, to appear in said cause, in the Cass Circuit Court. That said Wright is informed that said Pratt persuaded one Henry Swift to appear in said cause, representing to said Swift that said Pratt would dismiss said cause, and said Wright would be defaulted for not attending to said suit, and advised him, as a friend, to attend to said cause; that said Swift was not advised of the defence or the witnesses for the defence. That great injustice will be done said company if a new trial is not granted in this cause. That the party expects to show that the benefits arising from the construction of the road equal all the damages, or are within a small sum of the amount. That they can prove that said Chambers has been paid for fencing the road, which, as your affiant is informed, was included in the damages assessed in said cause, and he further states that said testimony, as your affiant is informed was given upon the trial of said cause, could be in part explained and in part rebutted, if an opportunity could have been had by your It seems to us that the facts stated in the affidavit ought to have entitled the defendants to a new trial. It is suggested by the counsel for the appellees that Swift, who appeared for the defendants below, was a practising attorney, a brother-in-law to Wright and a member of his family, and an employee of the company; and that the suggestion of the plaintiff's counsel to Swift to look after the interests of the company was prompted by courtesy to Mr. Wright. We can not judicially take notice of the matters here suggested, as they do not appear in the record; but if they did appear, still the defendants were prejudiced by the unauthorized interference of Swift, and that is the controlling feature in the case. It is insisted that the remedy of the company was against Swift, who is not shown to be insolvent. Had the motion for a new trial not been made before judgment, and if his interference had been wholly upon his own motion, and without any suggestion from the opposite party, the position assumed would be entitled to more consideration; though we can not say that even then it would have been their only remedy. Kent, C. J., in Denton v. Noyes, 6 Johns. R. 296, plainly intimates that he would go further. In that case the judgment was retained, lest the plaintiff should be prejudiced by the loss of his lien, in consequence of a misplaced confidence in the attorney who appeared, and whom he supposed to have authority; but the defendant was let in to make his defence. The same course was directed by this Court, in the case of Pierson v. Holman, 5 Blackf. 482. The facts stated in the affidavit are not controverted as they might have been, if untrue, and we think that under the particular circumstances of the case a new trial should have been granted. As the motion for a new trial was made before judgment, the case is to be distinguished from those in which a judgment already rendered has been ordered to stand as May Term, 1855. THE NEW- RICHMOND V. CHAMBERS. May Term, an ultimate security for the plaintiff for whatever amonnt 1855. might be finally recovered. HEDDY V. DRIVER. Per Curiam.-The judgment is reversed. Cause remanded, with instructions to the Circuit Court to grant the defendant a new trial, upon the payment by him of all the costs in the action. H. P. Biddle, for the appellants. D. D. Pratt and S. C. Taber, for the appellees. Thursday, June 7. HEDDY and Others v. DRIVER. A count which is not a nullity should not be rejected on motion. ERROR to the Sullivan Circuit Court. STUART, J.-Action on the case against Jane Driver, as tenant in dower, for waste. The plaintiffs are the heirs at law of Edwin Driver, deceased. The defendant is his widow. The declaration contained three counts. After trial, and verdict for 40 dollars, the Court sustained a motion for a new trial, and the cause was continued. At the next term, Jane had leave to withdraw her plea. She then filed a general demurrer to the declaration, which was sus tained. The plaintiffs withdrew their joinder, non-prossed all the counts but the last, and the cause was continued with leave to amend. At the following term, no amendment to the declaration having in the meantime been made, the defendant moved to dismiss the cause, for want of a declaration, and the Court sustained the motion. The third count was not good on demurrer, but it could not be regarded as a nullity and rejected on motion. That 1855. AMBROSE count stood on the record, not only with all its own allega- May Term, tions, but with all the formal parts of the entire declaration, and also with all the descriptive references made in it to the other counts which had been non-prossed. Instead of moving to reject, the defendant should have refiled her demurrer. Port v. Williams, ante, p. 219. But as the plaintiffs did not appear as objecting in the Court below, and took no exception there to the opinion of the Court in dismissing the cause, the error can not be noticed in this Court. Per Curiam.-The judgment is affirmed with costs. V. THE STATE. AMBROSE V. THE STATE. The provisions of section 8 of the act of 1848 "to reduce the law incorporating the city of Madison, and the several acts amendatory thereto, into one act," &c., so far as they relate to the licensing of persons to retail spirituous liquors, did not repeal, by implication, within the corporate limits of said city, the general provision in the R. S. 1843 upon the subject. A party can not be punished twice for the same act, under the same jurisdiction; but he may under different jurisdictions; as for an act in violation of the charter of a city and a penal law of the state. ERROR to the Jefferson Circuit Court. STUART, J.-Indictment for retailing without license, found under the R. S. 1843. The record shows the act complained of to have been done in the city of Madison, under a license from that city. The city of Madison granted the license, under an act passed subsequent to the R. S. 1843. Local Laws 1848, p. 92. And it is insisted that the latter act, so far as the corporate limits of the city were concerned, controlled the former act. We can not carry repeal by implication that far. "Fixing rates and granting a license by the city excuses from Thursday, |