theory that the trial in such a proceeding consists simply of an examination of the defendant, and hence refused to hear any other witnesses. In other words, that court disposed of the case upon the theory that appellant was concluded by what appellee stated in his examination. In this we think the learned judge erred. This proceeding was instituted under section 816, Rev. St. 1881, which provides that after an execution has issued against property, upon proper affidavit by the judgment plaintiff stating that the judgment debtor has property, (describing it,) which he unjustly refuses to apply towards the satisfaction of the judgment, the court shall issue an order requiring the judgment debtor to appear, and answer concerning the same; and that such proceedings may thereafter be had for the application of the property of the judgment debtor towards the satisfaction of the judgment as provided upon the return of an execution. Section 820 of the same statute provides that "witnesses may be required to appear and testify in the proceeding provided for in this act; and either party may examine the other as a witness in the same manner as upon the trial of an issue; or the plaintiff may waive the answer of the debtor, and rely upon other testimony," etc. Section 821 provides that upon the hearing the judge of the court may order any property of the judgment debtor, not exempt from execution, in the hands of himself, etc., to be applied to the satisfaction of the judgment, and shall have full power to enforce all orders and decrees in the premises, by attachment or otherwise. These sections are the same as sections 519, 523, and 524 of the Code of 1852, (2 Rev. St. 1876, p. 230;) and in the Code of 1881, as in the Code of 1852, they follow the subdivision, "Proceedings Supplementary to Execution." 2 Rev. St. 1876, p. 228; Acts 1881, p. 345. These several sections, it thus and otherwise appears, are a part of the same statute upon the same subject. The section in relation to the examination of witnesses, other than the judgment debtor, applies whether the proceeding is instituted under section 815, 816, or 819. Prior to the Code of 1881 it was frequently held that in such a proceeding, under the Code of 1852, issues of fact might be formed, a trial by jury might be had as a matter of right, witnesses might be heard, and that the application or affidavit by the plaintiff might be tested by demurrer. Toledo, W. & W. Ry. Co. v. Howes, 68 Ind. 458; McMahan v. Works, 72 Ind. 19; Dillman v. Dillman, 90 Ind. 585. Section 525 of the Code of 1852 provided: "Costs shall be awarded and taxed in this proceeding as in other cases.' Section 822, Rev. St. 1881, re-enacts the above section, and adds thereto: "And all proceedings under this act, after the order has been made requiring parties to appear and answer, shall be summary, without further pleadings, upon the oral examination and testimony of parties and witnesses. But the sufficiency of the order and affidavit first filed by the plaintiff may be tested by demurrer or motion to dismiss or strike out the same." This addition constitutes the only difference between the statute of 1852 and that of 1881, and that change, so far as is material to the case before us, consists in dispensing with pleading subsequent to the order requiring the defendant to appear and answer. It is very certain, we think, that section 822 does not, and was not intended to, conclude the plaintiff by the testimony of the judgment debtor in his examination. It was not intended to nor does it deprive or abridge the right of the plaintiff to examine other witnesses, as that right is given by section 820, supra. Indeed, section 822 recognizes the right to examine other witnesses. Upon the question of the proper construction of the statute, and the effect of section 822, see the cases of Burkett v. Holman, 104 Ind. -; S. C. 3 N. E. Rep. 406; Burkett v. Bowen, 104 Ind. —; S. C. 3 N. E. Rep. 768; and Butner v. Bowser, 104 Ind.; S. C. 3 N. E. Rep. 889. The judgment is reversed, at appellee's costs, and the cause remanded, with instructions to the court below to sustain appellant's motion for a new trial, and to proceed in accordance with this opinion. (106 Ind. 98) SECOR and others v. SKILES and others. Filed March 31, 1886. APPEAL-WEIGHT OF EVIDENCE. Where there is evidence tending to support the finding of the nisi prius court, the supreme court will affirm the finding of the court below, without weighing the evidence. Appeal from Huntington circuit court. Branyan & Spencer and Kenner & Dille, for appellants. Trammel & Lucas, for appellees. MITCHELL, J. This was an attempt, by proceedings supplemental to execution, to subject certain funds, which were in the hands of the clerk of the circuit court of Huntington county, to the satisfaction of an execution issued on a judgment recovered against Skiles in favor of Secor, Berdan & Co. A proceeding in attachment had been commenced against Skiles by the latter, the alleged ground therefor being that Skiles had fraudulently sold his property subject to execution with intent to defraud his creditors. A stock of groceries was seized by the sheriff in pursuance of the command of the writ sued out in the proceedings in attachment. Pending the suit, the stock was sold by the sheriff pursuant to an order of the court. Something over $3,000 was realized on the sale. This amount was paid over to the clerk. The proceedings in attachment were not sustained at the trial. The alleged fraudulent sale was a transfer of the stock by Skiles to Denman. The appellants and other creditors who had filed under the attachment proceeding recovered personal judgments against Skiles; and, upon various judgments and claims in favor of creditors of the latter, all the money in the hands of the clerk, except the sum of about $1,200, had been paid out upon orders drawn by Skiles and Denman. They refused to pay the appellant's judgment, amounting to $437.84. Execution was issued on this judgment, and returned, "No property found." Thereupon this proceeding was com menced to reach the money remaining in the hands of the clerk. It was alleged that the money belonged to Skiles, and that he unjustly rev.5N.E.no.5-57 fused to apply it to the satisfaction of the plaintiffs' judgment. Denman, although nominally a party when this proceeding was commenced, was not summoned and did not appear. He is not named as a party to the amended complaint. Buchanan, the clerk, who was made a party, answered, admitting that the money was in his custody, and asked the order and judgment of the court for his protection. Skiles answered in denial. Upon the hearing the court found that Skiles was not the owner of the money in the clerk's hands. Judgment was given accordingly for the defendants. The contention here is that the finding and judgment of the court are not sustained by the evidence. The plaintiffs' judgment was recovered at the June term, 1883, of the Huntington circuit court. It appeared in evidence that on the twelfth day of March, 1883, a written agreement of sale was made by Skiles to Denman. By this agreement the entire stock of the former was transferred to the latter, the consideration, as recited, being that the latter should pay the actual cash value of the stock as it might be ascertained by an invoice. One thousand dollars was to be paid upon the completion of the invoice, and the residue in four equal payments, to be secured by the notes of the purchaser, due in three, six, nine, and twelve months, respectively. While the invoice was being taken, and before it was completed, the stock was seized upon writs of attachment sued out against the property of Skiles. After the property was sold by order of the court, and the money paid into the clerk's hands, and after it was adjudged that the attachment proceeding was not sustained, Skiles and Denman joined in orders upon the clerk for the payment of various sums out of the fund to the creditors of Skiles. It may be inferred from the evidence that the money in the clerk's hands was treated as Denman's, and that the sums paid to the creditors of Skiles on the orders were treated as payments by Denman to Skiles on account of the purchase price of the stock. The court must have found that the sale from Skiles to Denman was a valid sale. There was evidence, although not of an entirely satisfactory character, which tended to support this view. Where there is any evidence tending to support the finding of the nisi prius court, the rule of this court is not to weigh the evidence, and decide according as it may preponderate, but to affirm the finding below. Under this rule the finding and judgment of the circuit court must be affirmed, with costs. 1. PLEADINGS-CONSTRUCTION-WRITTEN INSTRUMENTS. In construing pleadings, written instruments and accounts properly filed therewith, under section 362, Rev. St. 1881, must be considered, and may often control. 8. SET-OFF AND COUNTER-CLAIM-REPLYING SET-OFF. One having a note and an account against another may sue upon the note, and reply the account as a set-off against an equal amount pleaded as a set-off by the defendant. 'Rehearing denied, 8 N. E. 108. 3. APPEAL-RECORD-INSTRUCTIONS-How MADE PART OF RECORD. In order that instructions may be brought into the record without a bill of exceptions, they must be filed, and the record must show affirmatively that they are filed, in the manner prescribed by section 533, Rev. St. 1881. Appeal from Delaware circuit court. George H. Koons, for appellant. ZOLLARS, J. Appellee sued appellant upon a promissory note. Appellant pleaded a set-off. To this plea appellee replied a set-off. Appellant's demurrer to this reply was overruled. Upon the verdict of the jury, judgment was rendered against appellant for the amount of the note. The evidence not being in the record, we cannot tell whether the amount of appellee's set-off equaled that of appellant, or whether the jury found each to be groundless. Appellant seeks to make the question here that a claim acquired by the plaintiff after the commencement of his action, but before the plea of set-off is filed by the defendant, cannot be replied as a set-off to a setoff. The record does not present that question for decision. It is averred in the reply that, when the plea of set-off was filed by appellant, he was and still is indebted to the appellee, over and above the note in suit, $82 upon a book-account for professional services rendered, and medicines furnished, etc. A bill of particulars was filed with and as a part of the reply. This bill of particulars shows that the services were rendered and the medicines furnished by appellee in 1881. It is said in argument that this account was assigned to appellee by her husband after this suit was commenced. There is nothing in the pleadings nor in the record to show that fact, if it is a fact. The reply shows that the services were rendered and the medicines furnished by appellee. The averments do not preclude the idea that appellant was indebted to appellee upon the account when this action was commenced. The bill of particulars, which is a part of the reply, shows that he was so indebted at that time, and for a long time prior thereto. In construing pleadings, written instruments and accounts filed therewith, in obedience to the requirements of the statute, (Rev. St. 1881, § 362,) must be looked to, and in many instances they are controlling. Carper v. Gaar, 70 Ind. 212; Hurlburt v. State, 71 Ind. 154; Bayless v. Glenn, 72 Ind. 5; Crandall v. First Nat. Bank of Auburn, 61 Ind. 349; Mercer v. Hebert, 41 Ind. 459. The record presents this question, and this question only: May a person having a note and an account against another sue upon the note, and reply the account as a set-off against an equal amount pleaded as a setoff by the defendant? That question is answered in the affirmative by the case of House v. McKinney, 54 Ind. 240. The demurrer to the reply was properly overruled. Appellant's learned counsel contend that the court below erred in its instructions to the jury, and in refusing those asked by him in behalf of appellant. He, however, really concedes that neither the instructions given nor those refused are properly in the record. The clerk below copied into the transcript what purports to be instructions given and re fused, but there is nothing to show that they were filed as required by section 533, Rev. St. 1881. In order that instructions may be a part of the record without a bill of exceptions, they must be thus filed, and the record must affirmatively show that they were so filed. That is not shown by the record before us. Neither were the instructions brought into the record by a bill of exceptions. O'Donald v. Constant, 82 Ind. 212; Elliott v. Russell, 92 Ind. 526; Olds v. Deckman, 98 Ind. 162; Landwerlen v. Wheeler, ante, 888, (present term.) It results from the foregoing that the judgment must be affirmed, at appellant's costs. It is so ordered. 1. CRIMINAL LAW-TRIAL-INSTRUCTIONS-REASONABLE DOUBT. An instruction in a criminal case, that, in order to justify an acquittal, the doubt of the defendant's guilt must arise out of the evidence, and be such as to cause a prudent man to hesitate before acting in matters of the gravest concern, is erroneous; for the doubt may arise from the want of evidence, and, in order to justify a conviction, the evidence must be such as to produce in the minds of prudent men such certainty that they would act upon the conviction produced, without hesitation, in their own most important affairs.1 2. SAME-REFUSAL, WHERE NOT APPLICABLE TO EVIDENCE. Instructions, correct as abstract propositions of law, are properly refused where there is no evidence to which they can be applicable. 8. HOMICIDE-MURDER-EVIDENCE-THREATS. On the trial of a prosecution for the murder of the successful suitor of a lady by one who has been rejected, evidence of the lady that the accused had threatened to kill any one else whose company she received, is admissible. 4. CRIMINAL LAW-APPEAL-REVERSAL FOR TECHNICAL ERROR. Although instructions, technically incorrect as abstract propositions of law, may have been given, if it clearly appears that no prejudice could have resulted to the defendant therefrom, and that the same verdict must have been returned in any event, the supreme court will not reverse. Appeal from Madison circuit court. Robinson & Lovett, for appellant. Pierse & Gerard and D. W. Wood, for appellee. MITCHELL, J. At the June term, 1885, the grand jury of Madison county, by a formal indictment in two counts, made presentment to the circuit court that on the twenty-fourth day of April, 1885, Luther T. Brown had feloniously and with premeditated malice murdered Eli F. Cummins. In the first count it was charged that the mortal wound had been inflicted with a knife. In the second, with a stone. The accused, having pleaded not guilty, was tried by a jury. He was found guilty, as charged, of murder in the first degree, and his punishment fixed at imprisonment for life. Over a motion for a new trial, judgment was rendered upon the verdict. To reverse this judgment the record is brought here on appeal, with an assignment that the court erred in 18ee note at end of case. *Rehearing denied. |