1852. ALDEN V. BARBOUR. according to our statute and the previous decisions of this May Term, Court, claim a reversal of the judgment of the Circuit Court on account of those rulings, even though erroneous. We think said plaintiff has not been injured. The variance as to the bill of exchange could have worked no prejudice to him. From the description given of it in the declaration, he would not have mistaken the bill, and he could have had, and it seems did have, an inspection of it before pleading. Besides, the variance might have been obviated on the trial below, and the bill given in evidence under the second count. R. S. p. 715, s. 240. Such being the case, this Court is bound to make the amendment, or regard it as made, treat the bill as given in evidence under that count, and affirm the judgment. R. S. p. 638, ss. 84, 85. Saxton v. The State, 8 Blackf. 200 (1). The bill was offered below under the second count. Per Curiam.-The judgment is affirmed with 1 per cent. damages and costs. J. G. Marshall, for the plaintiffs. A. A. Hammond and H. O'Neal, for the defendants. (1) The R. S. 1852 enact that no variance between the allegations in a pleading and the proof is to be deemed material, unless it has actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits. When it is alleged that the party has been so misled, that fact must be proved to the satisfaction of the Court, and it must be shown in what respect he has been misled; and thereupon the Court may order the pleading to be amended upon such terms as may be just. Where the variance is not material in the sense stated, the Court may direct the fact to be found according to the evidence, or may order an immediate amendment without costs. R. S. 1852, vol. 2, p. 46. The Court may, also, at any time, in its discretion, and upon such terms as may be deemed proper, for the furtherance of justice, direct the name of any party to be added or struck out; a mistake in name, description, or legal effect, or in any other respect, to be corrected; any material allegation to be inserted, struck out, or modified to conform the pleadings to the facts proved; when the amendment does not substantially change the claim or defense. Ib. p. 48. VOL. III.-53 May Term, 1852. WOOD WOOD V. COMMONS. V. COMMONS. Thursday, The setting aside of a special plea cannot be complained of when another remains under which the defense set up in the former plea could be proved in bar of the action. A judgment will not be reversed because an erroneous instruction was given to the jury, if it could have done the party complaining no injury. APPEAL from the Union Circuit Court. PERKINS, J.-Case for slander. The declaration alleged that the defendant had said of the plaintiff that "he stole wheat;" and that "he stole grain." Pleas, the general issue and justification. Issues of fact; trial by jury; verdict and judgment for the plaintiff for 150 dollars. The suit was commenced in March, 1850. The ninth plea, being a plea of justification, was, “that heretofore, to-wit, on the 1st day of October, 1849, at, &c., said plaintiff did steal, &c., two bushels of wheat, the property of one John Cromwell, of the value," &c. The tenth was, that, heretofore, to-wit, on the 1st day of July, 1849, said plaintiff did steal, &c., two bushels of wheat, the property of one John Cromwell, of the value, &c. The Court set aside said tenth plea. This is assigned for error. It does not appear that the defendant below was injured by the act complained of. He could have proved a larceny of wheat on the 1st of July, 1849, under the ninth plea, if at all; and that would have made out the defense set up in both of said pleas, viz., the stealing of wheat by the plaintiff below from John Cromwell. The Court gave this instruction to the jury, viz.: "The charge in the declaration is, that the defendant charged that the plaintiff stole wheat; and the defendant must prove that the plaintiff feloniously stole wheat as alleged in some one of his pleas. Proof that he stole flour or any other article would not be sufficient to justify the charges in the declaration." This instruction is complained of, and it did not accurately present to the jury the facts alleged in the plead 1852. EASTMAN V. RAMSEY. ings. The declaration averred that the defendant had May Term, charged the plaintiff with stealing wheat, and with stealing grain. And among the pleas of justification were some alleging that the plaintiff did steal rye and corn; and they were good pleas of justification to the charge in the declaration of stealing grain; for rye and corn are grain, and issues were formed on these pleas. But still the defendant below was not prejudiced by the instruction, because, as applied to the evidence in the cause, it was correct. For though the plaintiff below had sued the defendant for making two charges against him, yet he proved but one, viz., that of stealing wheat. And though the defendant pleaded in justification that said plaintiff had stolen wheat and other grain, thus justifying the whole declaration, yet his evidence on the trial tended to sustain only the plea justifying the charge of stealing wheat, thus reducing the controversy in the case before the jury to a charge and justification thereof of stealing wheat alone. The instruction, therefore, considered in connection with the evidence, was right enough. We may remark that, though wheat is embraced by the general term grain, yet as the charge as to this was of a particular kind of grain, the justification, in plea and proof, was necessarily as particular. In relation to the charge of stealing grain, a justification would be made out by showing a larceny of any kind of grain. Per Curiam.-The judgment is affirmed with 1 per cent. damages and costs. J. S. Newman and J. S. Reid, for the appellant. EASTMAN V. RAMSEY. If A., for a good consideration, promises B. to pay him a debt due from C. to B., the remedy for a breach of the undertaking is at law and not in chancery. May Term, 1852. EASTMAN V. RAMSEY. Thursday, If A., in consideration of property conveyed to him by C., promises C. to APPEAL from the Jennings Circuit Court. PERKINS, J.—Bill in chancery by Abner C. Ramsey against Buell Eastman. Answer, replication, proofs, and decree for the plaintiff. The facts are, substantially, That one Lorain Childs was indebted to said plaintiff, Ramsey, in the sum of 174 dollars; and, to secure the payment of it, agreed to procure and deliver to him the note of Buell Eastman, payable to said Childs and indorsed by him, for said amount; that Childs did procure said note and deposited it with one John P. Ramsey, to be by him delivered to said Abner C. Ramsey, the plaintiff; that said note was offered to said Abner C. and by him refused, whereupon it was taken back by Childs and returned to Eastman, by whom it was destroyed; that, after this, Childs died insolvent without having paid said debt to Abner C. Ramsey, and one John Ramsey became the administrator upon his estate; that Eastman received conveyances of property from Childs, and said he would pay the latter's debts. Childs's administrator is not made a party. Abner C. Ramsey seeks, by this suit, to make Eastman pay this debt of Childs to said Ramsey; and there was a decree to that effect below. We do not see how the decree can be sustained. If Eastman promised Ramsey, for a good consideration, to pay to him this debt of Childs, said Ramsey's remedy upon that promise is by an action at law. Chancery has no jurisdiction. If Eastman had not so promised Ramsey, but, in consideration of property conveyed to him, had promised Childs that he would pay his debt to Ramsey, then the remedy is not by a suit at law or in chancery by Ramsey against Eastman; but the administrator of Childs must sue for a breach of that promise, and Ramsey must look to the estate of Childs for satisfaction of his demand. 1852. INDIANA CEN COMPANY V. DIANA, &c. If, according to another view of the case, the property May Term, of Childs was conveyed to Eastman as a trustee for the payment of the former's debts, then, indeed, equity might TRAL RAILWAY take cognizance of the case, and the plaintiff might, perhaps, under some circumstances, had he joined the ad- STATE OF INministrator of Childs as a party, have obtained a decree for a proportional or full payment of his claim, according as the terms of the trust and amount of property might have justified; and, could he have shown a waste of the trust estate, perhaps, though we decide nothing as to all this, he might have obtained a personal decree for his demand against the trustee. But, in this case, if any property was conveyed in trust, the evidence shows it to have been subject to incumbrances which swept it away, leaving nothing out of which the trustee could realize any amount. If the property was fraudulently conveyed to Eastman, as is also suggested, to hinder and delay the creditors of Childs, then the conveyance was liable to be set aside, but a decree to that effect was not desired. Per Curiam.-The decree is reversed with costs. Cause remanded, &c. H. C. Newcomb, for the appellant. THE INDIANA CENTRAL RAILWAY COMPANY U. THE STATE OF An injunction should not be granted, under the R. S. 1843, till the adverse party has had ten days' notice of the time and place of hearing the application therefor, unless the bill shows an urgent necessity that the injunction should be granted before notice can be given, and that an emergency exists which the complainant could not, by reasonable diligence, have prevented. 3 421 128 277 |