1855. CHANCE

the state and gone to parts unknown. The question of May Term, the sufficiency of this excuse was raised by the demurrer, and was decided correctly. The excuse was sufficient. There was no denial of the fact of his having left the state; hence there was no occasion to prove it.

Per Curiam.-The judgment is affirmed, with 5 per cent. damages and costs.

C. C. Nave, for the appellant.

(1) It has recently been held, in numerous cases tried under the R. S. 1843, that after a motion in arrest of judgment a motion for a new trial can not be entertained. Rogers v. Maxwell, 4 Ind. R. 243.-Sherry v. Ewell, id. 652.— Smith v. Porter, 5 id. 429.—Hord v. The Corporation of Noblesville, ante, p. 55.— Van Pelt v. Corwine, ante, p. 363.—McKinney v. Springer, post.

The R. S. 1852, however, contain the following provisions: "The application for a new trial must be made at the term the verdict or decision is rendered." 2 R. S., p. 119, s. 354. "Where causes for a new trial are discovered after the term at which the verdict or decision was rendered, the application may be made by a complaint filed with the clerk, not later than the second term after the discovery, on which a summons shall issue, as on other complaints, requiring the adverse party to appear and answer it on or before the first day of the next term. The application shall stand for hearing at the term to which the summons is returned executed, and shall be summarily decided by the Court, upon the evidence produced by the parties. But no such application shall be made more than one year after the final judgment was rendered." 2 R. S., p. 119, s. 356. As the motion for a new trial may now be entertained after final judgment, it would probably be held that a motion in arrest would not operate as a waiver of the former motion; for it is difficult to perceive how a motion in arrest would affirm the verdict any more than allowing judgment to be rendered without objection.

v.

HALEY.

CHANCE V. HALEY.

A judgment having been rendered by a justice of the peace for the plaintiff, the defendant brought the proceedings before the Circuit Court by certiorari, and the judgment having been reversed, the Circuit Court tried the cause, and reduced the plaintiff's judgment more than 5 dollars. Held, under the R. S. 1843, that the defendant was entitled to judgment for the costs before the justice and in the Circuit Court.

May Term, 1855.

CHANCE

V.

HALEY.

Friday,
June 8.

APPEAL from the Grant Circuit Court.

GOOKINS, J.-Chance obtained a judgment against Haley, before a justice of the peace, for 75 dollars. Haley brought the proceedings into the Circuit Court by a writ of certiorari, and upon errors in law assigned, the judgment of the justice was reversed, at the costs of Chance. The Circuit Court retained the cause for trial, which finally resulted in a verdict and judgment for the plaintiff for 63 dollars and 48 cents, upon which the Circuit Court gave judgment in favor of the defendant for costs. The incorrectness of this judgment for costs is the only error assigned.

The statute of 1843, p. 895, s. 198, provides that if, on certiorari, the judgment of the justice be reversed, the Court shall render judgment of reversal, and for the costs that have accrued up to that time in the Circuit Court, in favor of the plaintiffs in the certiorari, but the cause shall be retained by the Court for trial and final judgment, as in cases of appeal.

The same question, in substance, was before this Court, in the case of The Centreville and Abington Turnpike Co. v. Jarrett, 4 Ind. R. 213, which was an appeal from an award of arbitrators appointed to assess damages. The act, in that case, authorized the appeal "according to the same rules that prevail in cases taken from justices' judgments." In that case, the amount recovered on the appeal having been reduced more than 5 dollars, it was held that the defendant was entitled to costs, such being the statute regulating appeals. In the case under consideration, the language does not differ materially from that used in the case above cited.

The appellant insists, that having been subjected to the costs of the judgment of reversal, that is the penalty provided for having taken an erroneous judgment before the justice; that the parties then stood upon an equality, and if he finally obtained judgment, he was entitled to costs. The same might be said where a party was permitted to amend his pleadings, on appeal, upon the payment of costs. Though the party against whom judgment had been given

1855.

STOUT

V.

below should, by his amendment, bring in the very matter May Term, which should occasion the reduction, the consequence of such reduction would follow nevertheless. This case can not be distinguished in principle from that above quoted, MORGAN. and the judgment of the Circuit Court must be affirmed. Per Curiam.-The judgment is affirmed with costs. J. Brownlee, for the appellant.

I. Van Devanter, for the appellee.

STOUT and Others v. MORGAN.

A., as administrator of B., filed his account for a final settlement, which contained an item, on the credit side, of an account of one C. paid, &c. The item was supported by the account, verified by the oath of C., and his receipt to the administrator on the back thereof. The heirs of B. objected to this item, and, having appeared, they and the administrator, by agreement, submitted the validity of the credit to the Court. One of the heirs having, as the record stated, "released his interest," was offered as a witness and excluded. The trial was had under the R. S. 1843.

Held, that the burden of proof was on the heirs.

Held, also, that the release, even had it been of the interest of the witness as to the item in question, would not have rendered him competent.

Where the record states that a witness released his interest, but does not state to whom, or how far it extended, and the Court below has held it insufficient, it will be so regarded in the Supreme Court.

If the party on whom lies the burden of the issue offers no evidence, the adverse party is entitled to a judgment.

Even though the admission of evidence was erroneous, yet if the judgment is right notwithstanding, it will not be reversed.

APPEAL from the Marion Court of Common Pleas. STUART, J.-Morgan, as administrator of James Stout, deceased, filed his account for final settlement, &c. Among the items was the account of C. Moore for 28 dollars, verified by the claimant, in accordance with the statute. R. S. 1843, p. 524. The administrator had paid it and taken Moore's receipt on the back; and thus it was filed as a voucher. To this account of Moore's alone, Stout's heirs VOL. VL-24

Friday,
June 8.

May Term, objected. The heirs and Morgan appeared, and, by agree1855. ment, the issue joined was submitted to the Court, and judgment was rendered in favor of the administrator, alMORGAN. lowing the claim as correct. Stout's heirs appeal.

STOUT

V.

In this Court only two errors are assigned. The one is the admission of Moore's evidence; the other the rejection of Stout's.

Perhaps the first thing to be settled is, on whom lies the burden of the issue submitted to the Court? Very clearly upon the heirs of Stout. It was for them to show that Moore's claim was improperly or fraudulently allowed and paid by Morgan. Having shown by the voucher of Moore that he had acted in conformity to the statute, (R. S. 1843, p. 524, s. 206,) the presumption arises that the administrator had done his duty, until the contrary is shown.

Now as to the errors; and, first, as to the rejection of the evidence. Edward Stout "released his interest," and was offered as a witness by the other heirs. But the Court, on objection being made, decided that the witness was not competent; correctly, too, we think. For even if he did release as to that claim, he was yet clearly interested as a distributee of the estate; or if there were lands, and the personalty were insufficient, the debts must be paid out of such realty. He was, therefore, interested in defeating this claim. And as the record does not disclose what sort of release it was, to whom made, or how far it extended, and the Court has decided it insufficient, we are bound to presume in favor of the action of the Court.

Further, the record does not purport to contain all the evidence. And as the burden of the issue was on the heirs, and they do not appear to have offered any evidence, Morgan was entitled to a judgment on the record as it is here presented, independent of Moore's evidence. So that it is not necessary to examine as to the interest of Moore. For if the admission of his evidence was erroneous, yet the judgment being right independent of it, would not be reversed. We think the judgment of the Common Pleas should be sustained.

Per Curiam.-The judgment is affirmed with costs.
N. B. Taylor and J. Coburn, for the appellants.
L. Barbour and A. G. Porter, for the appellee.

May Term,
1855.
MURRAY

V.

FRY.

MURRAY V. FRY.

When the evidence is not in the record, if, upon any probable state of facts, the instructions of the Court would be correct, the existence of such facts will be presumed in support of the judgment; but if the instructions would be wrong, on every state of facts, and were calculated to direct the jury to an improper basis for their finding, they will be presumed to have misled the jury.

Assumpsit by an infant upon a special contract, whereby she agreed to work

for the defendant for a term specified, and he agreed to furnish her board, clothing, &c., and also to furnish her a cow, a bed, &c., in consideration of such service. Averment, that the plaintiff faithfully performed her part of the contract, but that the defendant wholly failed to board and clothe her properly, or to deliver the articles of property or any of them. There was also a common count for work and labor. The evidence did not appear in the record. The Court instructed the jury that they should take into consideration the value of such a home as the plaintiff had enjoyed, &c.; her opportunity of acquiring instruction from the defendant's wife in matters of housekeeping; and the advantages resulting to her from a residence in a respectable family. Held, that these instructions were wrong.

An appeal was taken from the judgment of a justice of the peace to the Circuit Court, in which the defendant made a material amendment of his defence. The plaintiff was an infant, and her next friend being unwilling to continue liable for the costs, was discharged, and she was allowed to prosecute, by another, as a poor person. The judgment was reduced in the Circuit Court more than 5 dollars. The costs of the suit up to the time of the discharge of the first next friend, including the costs of said amendment, were taxed against him. Held, under the R. S. 1843, that this was wrong.

ERROR to the Hamilton Circuit Court.

STUART, J.-Sarah Murray, an infant, by her next friend, Bronson, sued Fry in assumpsit. The declaration sets out a special contract between Sarah and Fry, to the effect that she was to work in the family of Fry until she was eighteen years old, being about two years from March 1,