Wills. Wills. the indebtedness, and then support it at the trial by proof of the circumstances? Mr. Gould, in his valuable treatise on Principles of Pleading in Civil Actions, p. 48, sec. 19, says: In the action of indebitatus assumpsit, if there is an actual debt, or legal liability (by simple contract), on the part of the defendant, but, as is frequently the case, no express undertaking to pay the debt, the plaintiff in, his declaration must regularly allege a promise. For, as the action of assumpsit is in its form and structure adapted to no other demands than those arising upon promises, the law, when no promise has actually been made, implies or presumes one, from the fact of the defendant's being indebted; for the purpose of entitling the plaintiff to this beneficial action, instead of the precarious and less remedial action of debt, which was anciently his only remedy in such a case. But, whenever the promise is thus implied, it is declared upon as an express one, and upon the face of the record is always taken to be express. There is, indeed, no such thing as an implied promise in pleading; or rather, the fact of its being implied appears only in evidence, and never upon the record." It is further said in a note on the same page that in declaring in assumpsit on a bill of exchange against the drawer, or on a promissory note against the maker, the statement of the facts which render the defendant liable to pay is sufficient without expressly alleging a promise on his part; and the reason assigned for this is, that the drawing of the bill, or making of the note, is, of itself, an actual promise. See, also, I Chit. Plead. 302. In the action of debt, at common law, the common counts alleged that the defendant was indebted to the plaintiff in such a sum, for use and occupation, &c. The complaint in this case is sui generis. We cannot classify it. It is not as in assumpsit, for it alleges no promise. It is not as in debt, for it alleges no indebtedness. But after some examination of cases decided under codes of practice similar to our own, we have come to the conclusion that, tested by the code, the complaint may be sufficient. It would seem that, contrary to the rule at common law, a party in a Wills 7. Wills. suit for a money demand on contract, like this, when the contract is implied, may allege the facts from which the law implies the promise, and it will be sufficient, without alleging a promise itself, or an indebtedness. But if the party omit any fact essential to justify the inference, the pleading will be bad. In all such cases, however, it is better and safer to allege the fact of promise or indebtedness, and then support the allegation at the trial by proof of the particular facts. A pleading, on the one hand, must not state matters of law merely, and on the other hand, it must not state the evidence of the party. It is always good pleading to state the legal effect of the contract, whether it be written or parol. Of the forms for complaint on contract laid down in the statute, the first six allege a promise. The seventh is somewhat like the complaint in this case, in that it sets out the facts from which the promise is to be implied. In the eighth and ninth the promise is contained in the instrument filed with the complaint. The tenth says the defendant is indebted to the plaintiff; and the eleventh alleges that the defendant owes the plaintiff. As the statute declares these forms sufficient in all cases where they are applicable, and that in other cases forms may be used as nearly similar as the nature of the case will admit, a complaint for use and occupation of real estate may be good which alleges the facts from which the implication of the promise or indebtedness will infallibly follow. Gwaltney v. Cannon, 31 Ind. 227. · Testing this complaint by this rule, we are inclined to hold it sufficient. We think also that the fourth paragraph of the answer was sufficient. It was something more than a general denial. It alleged one or more facts which would not have been admissible under a general denial. There were issues made on the other paragraphs of the answer, a trial by jury, verdict for the plaintiff, motion for a new trial overruled, and judgment. On the trial, the plaintiff proposed to prove the pecuniary 34 110 142 441 Ward v. Bateman. circumstances of the defendant, to which the defendant objected, but the court allowed the evidence to go to the jury, and the defendant excepted. It appeared from the evidence that the defendant was worth six thousand dollars. The defendant afterwards proved what the plaintiff was worth, which was ten thousand dollars, and the verdict of the jury tended to equalize their estates. The pecuniary condition of the defendant was not in any way in issue, and the evidence in relation to it was improperly admitted, and may have injuriously affected the defendant in the case in the opinion of the jury. The judgment is reversed, with costs, and the cause remanded for further proceedings. A. Iglehart, for appellant. F. S. Buchanan, H. C. Gooding, and F. M. Shackelford, for appellee. WARD V. BATEMAN. SUPREME COURT.- Bill of Exceptions. — Evidence.-Where a bill of exceptions, although professing to contain all the evidence given in a cause, shows upon its face that this is not true, the Supreme Court will not consider the question of the sufficiency of the evidence. SAME.-Bill of Particulars.-Striking Out.-New Trial.-The action of the court in striking out parts of a bill of particulars cannot properly be assigned as a cause for a new trial; questions concerning such action of the court should be reserved and presented to the Supreme Court in the same manner as questions in reference to striking out other parts of the pleadings are reserved and presented. APPEAL from the Wayne Common Pleas DOWNEY, J.-Suit by the appellee against the appellant and another on a promissory note. Answer; reply; trial by the court; finding for the plaintiff; motion for a new trial overruled; exception; and judgment. Ward v. Bateman. It is alleged by the appellant that the court erred in refusing to grant a new trial. The new trial was asked, first, because the finding of the court was not sustained by the evidence; second, was contrary to law; third, because the court struck out some of the items of the bill of particulars. The bill of exceptions, though it professes to contain all the evidence, shows that it does not. The promissory notes given in evidence, by each party, are not set out. Persons are referred to by letters of the alphabet, thus: K. & B., F. R., &c. It professes to be the notes of the evidence as taken down by the judge who tried the case, and not a statement of it at length. It involves, among other things, a statement of a partnership account between the parties. In The State v. Swarts, 9 Ind. 221, this court said: "The bill of exceptions closes with the formal words, 'this was all the evidence,' &c. But, unfortunately, the bill itself elsewhere discloses, that there was other evidence given which it does not contain. It opens by saying that the plaintiff gave in evidence a certain record. But there is no record copied into the bill of exceptions, or otherwise referred to. Hence, as the bill of exceptions does not contain that part of the evidence, it cannot contain all the evidence. It follows that the formal words, as to all the evidence in the cause, are not correct." If we could, under such a bill of exceptions, consider the question as to the sufficiency of the evidence, we should feel compelled to reverse the judgment. The only statement as to the plaintiff's evidence, in his original case, is this: 66 PLAINTIFF'S EVIDENCE. "1. Note of defendants, Oct. 22d, 1866. $1,038.00." We could not determine from this whether the note on which the suit was brought was given in evidence or not; for although the date and amount correspond with those of the note described in the complaint, the time when it matured is not shown. It is not impossible or improbable that other notes of the same date and amount may have been executed at the same time. The same may be said with reference to Evans, Administratrix, v. Newland. three or more notes relied upon as matters of set-off by the defendant. The form of the bill of exceptions forbids us to examine the question as to the sufficiency of the evidence. The error complained of with reference to the striking out of some of the items of the bill of particulars, is not reached by a motion for a new trial. The bill of particulars is a part of the pleadings, and questions concerning the action of the court in striking out parts of it should be reserved and presented to this court in the same manner as questions with reference to striking out other parts of the pleadings are reserved and presented. The judgment is affirmed, with five per cent. damages and costs. W. A. Bickle, for appellant. W. S. Ballinger, for appellee. 34 112 159 205 EVANS, Administratrix, v. NEWLAND. EVIDENCE.-Admissions.—Evidence of admissions of a party should be received NEW TRIAL.-Weight of Evidence.—When a verdict is not sustained by suffi- APPEAL from the Scott Circuit Court. DOWNEY, J.-This action was brought to recover damages |