AND INDIAN ROAD CO. V. Nov. Term, brought in certain cases where the plaintiff has a right 1856. of action. It operates indirectly to produce that effect, THE MADISON and this does no more; for it does not absolutely forbid APOLIS RAIL- the defendant the right of appeal. The Supreme Court of the United States, in the cases of Bronson v. Kinzie, WHITENECK. 1. How. 311, and McCracken v. Hayward, 2 id. 608, admitted the difficulty of so marking the line between rights and remedies as to declare at what point a statute ceased to be directory of the remedy, and began to impair the obligation of a contract; and they resorted to the expedient of comparing the statute with the contract, and by a general view of the subject, determining that the former affected the latter in such a manner as to impair its obligation. On such a view of the subject, authorities could scarcely be found to sustain any conclusion, and each case would furnish its own rule. Is the clause in this statute giving double damages, designed to discourage the bringing of unimportant suits, where justice is not the object really sought; or was it designed to keep parties out of court who have merits? I incline to believe the latter is its character; and, therefore, that it conflicts with the above quoted section of the bill of rights. In some of the cases brought upon this law, now pending in this Court, recoveries were had in the first instance to the amount of several hundred dollars, and on appeal these damages were doubled. Admit that the defendant had not merits in the appeal sufficient to reduce the recovery 20 per cent,-still there might be grave questions whether the company was liable at all, which, if the defendant is to have, in the language of the constitution, "justice completely and without denial," it might be indispensable to have determined by a higher tribunal; and if the inflicting of double damages was designed to prevent the pursuit of a substantial remedy by due course of law, it would seem that the constitution was violated. This is very different from the question of practice so fully discussed. Practice, in general, involves no princi ETTE, &c. ple; it merely directs the mode of asserting a right; but Nov. Term, 1856. here an important principle is involved, intended, in this instance, to operate only upon certain corporations,-but THE LAFAYwhich, if valid, may be extended to all other persons. On this ground, I am inclined to hold that the judgment of the Court of Common Pleas is wrong, and ought to be reversed. Per Curiam.-The judgment is reversed with costs. Cause remanded, &c. F. M. Finch and J. Slater, for the appellant. W. M. Dunn and J. A. Hendricks, for the appellee. V. MARTIN. THE LAFAYETTE AND INDIANAPOLIS RAILROAD COMPANY v. MARTIN. APPEAL from the Marion Circuit Court. Per Curiam.-Suit against the Lafayette and Indianapolis Railroad Company, to recover for a cow killed upon the track of the road. The facts of the case bring it precisely within the decision in The Madison and Indianapolis Railroad Company v. Whiteneck, at the present term; and like judgment is given (1). H. C. Newcomb and J. S. Harvey, for the appellant. (1) Ante p. 217. Monday, Nov. Term, 1856. POWELL V. GRIMES. Monday, SHAW and Another v. GALLAGHER and Another. APPEAL from the Randolph Court of Common Pleas. Per Curiam.-The judgment in this case is reversed, and the cause remanded to be dismissed, for want of jurisdiction. Fisher v. Prewitt, 7 Ind. R. 519, is in point. A proceeding in court by confession of judgment, is for the enforcement of a private right, and is, consequently, by virtue of section 1, p. 27, 2 R. S., an action in the courts of Indiana. The courts in this State have, by statute, jurisdiction in all actions, suits, and cases,— terms used in the statutes synonymously, or nearly so. If there is some proceeding, not embraced by those terms, by what statute has any court jurisdiction of it? B. McClelland, for the appellants. C. H. Test and W. A. Peelle, for the appellees. Monday, 8b 252 134 604 POWELL v. GRIMES and Another. ERROR to the Switzerland Circuit Court. Per Curiam.-Suit upon a note. Defenses, fraud, want and failure of consideration. Trial. Verdict for plaintiff. New trial granted. Verdict and judgment for defendants. Instructions given on second trial were not excepted to. The case is here upon an alleged error in granting a new trial, and upon the weight of evidence on the second trial. This Court would very reluctantly set aside the granting of a new trial. Perhaps a case might occur in which it would do it; but where the Court below conducting the trial, is not satisfied with its fairness, we should be slow to differ with it. We cannot in this Nov. Term, case. On the weight of evidence, the judgment on the second trial must be affirmed with costs. A. Brower, for the plaintiff. J. Sullivan, for the defendants. 1856. HUCKSTEP V. O'HAIR. HUCKSTEP v. O'HAIR and Another. The Supreme Court will not, unless a very strong case is presented, disturb a judgment of the Circuit Court in a matter depending upon the weight or effect of evidence. APPEAL from the Ripley Circuit Court. Per Curiam.-Action for the recovery of real estate. The question arose as to whether a conveyance was fraudulent; and the declarations of a person other than the grantee were offered in evidence againt the grantee, though he was not present when they were made. The Circuit Court thought it had not been shown that a conspiracy or combination existed between the two, and refused the evidence. Whether such combination had been shown was peculiarly a matter to be judged by the Circuit Court; and it would require a very strong case to induce this Court to disturb the judgment of the Circuit Court in a matter depending upon weight or effect of evidence. This, certainly, is not such a case. The judgment is affirmed with costs. D. Kelso, for the appellees. Monday, December 1. 8 253 137 295 Nov. Term, 1856. KEEN V. YOUNKMAN. Monday, TILFORD V. ROBERTS. ERROR to the Morgan Circuit Court. Per Curiam.-Money paid on an executory contract which the recipient of the payment fails to fulfill may be recovered back. Patterson v. Coats, 8 Blackf. 500. Payment may be made in any thing which the creditor will accept as payment. Louden v. Birt, 4 Ind. R. 566. The count for money had and received, &c., is sus tained by proof that the defendant had received property which might be presumed to have been converted into money. Helvey v. The Board, &c., 6 Blackf. 317. On the evidence, the judgment in this case is right: and it is affirmed with 5 per cent damages and costs. L. Reynolds and J. L. Ketcham, for the plaintiff. L. Barbour, A. G. Porter and W. R. Harrison, for the defendant. Monday, December 1. KEEN v. YOUNKMAN, Administrator. APPEAL from the Ripley Court of Common Pleas. Per Curiam.-Suit for money had and received, &c. Answer in denial. Cause submitted by agreement. Judgment for the plaintiff. The evidence sustains the judgment; and the whole case was triable under the general denial. On the filing of the complaint, the defendant demurred to it; but before the demurrer was acted upon, he answered over. The answer was a waiver of the demurrer. The judgment is affirmed with 10 per cent. damages and costs. J. W. Gordon, for the appellant. E. Dumont and O. B Torbett, for the appellee. |