1851. THE WHITE WATER VAL LEY CANAL The replication denies that the existence of the release Nov. Term, mentioned in the plea was fraudulently concealed from the defendant. If the averment in the plea, that the release was fraudulently and collusively concealed from the defendant, was material and necessary, it was, of course, competent for the plaintiff to traverse it. The second plea is without that averment and is, we think, clearly bad. Under the statutory provisions contained in the charter of the plaintiff in error, and in the general law relative to awards, the award of the arbitrators in this case stood in the nature of a judgment of a justice of the peace, and was conclusive if not appealed from. See case between the same parties in 8 Blackf. 528; Parker and Helm v. Henderson, Ind. R. 28 (2); R. S. 1843, c. 44, p. 786. The second plea is in effect, that since the award was made the defendant has discovered evidence which might have produced a different result if it had been before the arbitrators, but of the existence of which the defendant was ignorant until after the time within which an appeal could be taken had elapsed. The discovery of evidence which was unknown to a party at the time of a former trial, may afford grounds for a motion, or a bill in chancery to obtain a new trial, but it certainly cannot be made the basis of a good plea in a collateral suit. The first plea differs from the second only in the averment that the facts, the discovery of which are so pleaded, were fraudulently concealed from the defendant by the plaintiff at the time the case was before the arbitrators. It is unnecessary now to decide whether this averment adds anything to the sufficiency of the plea, though we are of opinion that it does not. It has been heretofore decided by this Court, that, in an action on a judgment, a plea that the judgment was obtained by fraud is insufficient-Hutton v. Denton, November term, 1850 (3)—and also, that, in an action on an award, the award cannot be impeached for misconduct of the arbitrators. The proper remedy in either case is by bill in chancery to HENDERSON. Nov. Term, have the judgment or award set aside. Hough v. Beard, 8 Blackf. 158.-Elliott v. Adams, id. 103. 1851. THE NORTH- V. THE MICHI- RAILROAD The next error assigned is the refusal of the Court to sustain the defendant's objection to the admission of the award in evidence. The ground of objection is, that it was signed by two of the arbitrators only. We think this objection is answered by reference to the statute, which authorizes awards to be signed by a majority of the arbitrators. (4.) The only other question raised by the plaintiff in error is in reference to the rejection of the parol evidence offered as a defense on the trial of the issue submitted. We think, for reasons already given, that evidence was rightly excluded. Per Curiam.-The judgment is affirmed with 1 per cent. damages and costs. J. Rariden, for the plaintiffs. J. D. Howland, for the defendant. (1) Local Laws of 1842, p. 37. (2) 1 Carter's Ind. R. 62. (3) 2 Carter's Ind. R. 644. (4) R. S. 1843, p. 788, s. 9. Monday, THE NORTHERN INDIANA RAILROAD COMPANY and Others v. THE motion to which the following remarks of judge November 24. Smith are applicable, was decided at the last term of the Court, and the opinion of the Court may be found in 2 Carter's Ind. R. 670. Judge Smith, who granted the order extending the operation of the appeal, to discharge which order was the object of said motion, proceeded, on the first day of the present term, to read the following remarks: 1851. SMITH, J.-Motion to set aside an order extending the Nov. Term operation of an appeal, taken from the decision of the president judge of the Laporte Circuit Court granting an injunction. Having, at the time this motion was argued, announced an intention to give, at a convenient opportunity, my views in writing upon the questions raised by it, I will now proceed to do so. On the 28th of August last, the appellees, having previously filed a bill of complaint in the Laporte Circuit Court, applied to the president judge thereof, in vacation, for an injunction to restrain the appellants from constructing a railroad over certain land and across the railroad of the appellees, and from building or using a railroad from Michigan City to the west line of the state, running parallel with the railroad of the appellees. The case is now in this Court on an appeal from the order of the president judge granting such an injunction. The 70th section of c. 37, R. S., p. 636, authorizes an appeal to be taken from any interlocutory order or decree of a Circuit or Probate Court granting or dissolving an injunction; but the 72d section provides that such an appeal "shall not stay the proceedings in the Court below upon such order or decree," for a longer time than thirty days, “unless the Supreme Court in term, or some judge thereof in vacation, shall make an order to the effect that such order or decree be stayed." Two subsequent acts, one passed in 1845, and another in 1849, give authority to any judge of the Supreme Court to order a supersedeas either in term time or in vacation. On the 22d of September, an order, such as is contemplated by the 72d section of the statute above quoted from, was made by me upon the application of the appellants. The members of the Court had, at that time, separated. I was at a distance from my colleagues, and having no opportunity to consult with them, the order was made without any participation on their part. On the 23d of October, the judges of this Court met, at THE NORTH ERN INDIANA V. THE MICHI GAN CENTRAL Nov. Term, the request of the counsel for the appellees, to hear a 1851. THE NORTH motion to have the order so made set aside. The motion ERN INDIANA was based upon the following propositions: RAILROAD 1st. That this Court was still in session, the term which COMPANY commenced in May last not having been ended by a final V. THE MICHI GAN CENTRAL adjournment; and, therefore, a single judge had no authority to make the order in question. RAILROAD COMPANY. 2d. That a rule of this Court required the record to be filed in the clerk's office before the order was made, which was not done. 3d. That the appeal was void, and this Court had no jurisdiction of the cause. Counsel representing the appellants were present when this motion was offered to be made, but they refused to enter an appearance or to consent to its being heard. On the contrary, they, as friends of the Court, insisted that the appellants could not be required to appear and show cause against such a motion at that period of the term. Consequently, a question was raised as to whether the motion of the appellees could then be entertained. There are two terms of the Supreme Court in each year. Each term is to consist of thirty days, unless the business shall be sooner disposed of, and may be enlarged beyond that time if the Court shall deem it expedient and necessary. The practice of the Court is to meet at the court room at the commencement of each term, and continue its sittings there from day to day, so long as the parties or their counsel have any business to bring before it. During these sittings, the docket is called for the purpose of enabling either party to require the appearance of his adversary, and to take such steps as may be deemed requisite or necessary in the absence of his opponent, if the latter fails to appear. Usually, it is not found necessary to continue the sittings of the Court, for these purposes, more than two or three weeks, and the ordinary routine. of business in Court being then terminated, the suitors and members of the bar in attendance from different parts of the state disperse and return to their homes. 1851. THE NORTHERN INDIANA RAILROAD COMPANY V. THE MICHIGAN CENTRAL RAILROAD COMPANY. The judges, however, continue to meet at their cham- Nov. Term, bers to examine the cases submitted, and to consult upon their decisions; and it has been found convenient to enlarge the terms or continue the Court in session for the purposes of receiving petitions for rehearing, rendering judgments on submitted cases, entering orders by the consent of the parties, and hearing and determining such matters as could properly be presented ex parte. It has, indeed, grown to be the practice to keep the Court constantly open for these purposes, and for many years the final order of adjournment at each term has been made on the Saturday preceding the Monday on which the next term commenced. But it has always been understood that, after the Court had ceased to meet at the court room from day to day, no parties could be compelled to appear during the remainder of the term, and no business could be transacted without the consent of all the parties entitled to be heard. There is no rule of Court to that effect, but this understanding has been constantly acted upon both by the Court and bar, and a different course could not now be adopted with propriety. The counsel of the appellees were, therefore, informed that, as the Court could not, consistently with the uniform practice, at that period of the term, require the appearance of the adverse party, a motion upon which such party would be entitled to be heard could not then be entertained; and that, so far as this motion was founded on an alleged want of jurisdiction in this Court, it was, in the opinion of the judges, of that character. The motion being then argued as one of an ex parte nature, it was, after giving the subject a careful consideration, overruled. It is provided in the same chapter of the Revised Statutes before quoted (s. 36, p. 632,) that no writ of error shall "stay or supersede" execution on the judgment of the inferior Court, unless the Supreme Court in term, or a judge thereof in vacation, after inspecting the errors. assigned on the record, shall make an order to that effect; which order shall be indorsed by the clerk of the Supreme |