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the Court, to enable him to procure the testimony of the May Term, witnesses.

The Court refused the motion, proceeded to hear the cause, and rendered a final decree for the complainant.

It is contended that this was a suit in chancery; that depositions were to be taken; and that the defendant, in accordance with a rule of practice in that Court, was entitled to a continuance. An act in force when the continuance in this case was refused, provides that "the practice and proceedings" in suits for divorce, &c., "shall be the same as in other cases in chancery," with these exceptions: 1. The defendant as to so much of the bill as contains the alleged cause of divorce, may answer the same without oath, &c., by a general denial, &c. 2. The defendant, in his or her answer, may allege any cause or causes of divorce against the complainant. 3. On the hearing, &c., of any bill for a divorce, or such answer in the nature of a cross bill, the default of either party to answer the same, or a failure to appear, shall in no case dispense with proof of the allegations made by the parties respectively. 4. Witnesses may be examined orally in Court, and testimony received in such hearing or trial, as in trials at common law. R. S. 1843, c. 35, s. 45.

It appears by the affidavit that the witnesses whose testimony was desired, were non-residents. They could not, therefore, be brought before the Court for an oral examination. Nor was there any mode in which the defendant could have availed himself of their evidence, unless he took their depositions. None of the exceptions above cited relate to the taking of depositions, and it seems to us that the ordinary practice in chancery suits was applicable to the case made by the affidavit. By that practice the defendant was not bound to file his answer until the first day of the term to which the original process was returnable; nor could he take depositions until it was filed. R. S. 1843, c. 46, ss. 21, 67. The record shows that the defendant was not in default. His answer was filed within the proper time. And having shown by affidavit that he could support his defence, if time was allowed to take certain

1854. PHILLIPS

V.

PHILLIPS.

May Term, depositions, we think the Court should have granted the 1854. continuance. See section 64 of the above chapter, and

THE STATE 6 Blackf. 542.

V.

BRYANT.

Per Curiam.-The decree is reversed with costs. Cause remanded, &c.

J. P. Usher, for the plaintiff.

T. H. Nelson, for the defendant.

Friday,
June 2.

THE STATE for the use, &c., v. BRYANT and Another.

Trespass quare clausum fregit. The declaration was filed in the name of the
state for the use of the inhabitants of congressional township No. 21, &c.,
and contained two counts, in which the defendants were charged with having
broken and entered into a school-house belonging to district No. 7 in said
township, &c. After a demurrer had been sustained to one count, and
issues of fact had been formed upon the other, the plaintiff moved for leave
to amend the declaration by striking out the words "for the use of the
inhabitants," and inserting in their stead the words "for the use of school
district number seven." The Court having allowed the amendment, the
plaintiff afterwards asked leave to amend the writ so as to make it conform
to the declaration, but the Court overruled the motion, and the suit was
dismissed, on the motion of the adverse party, for the variance.
Held, that the amendment of the declaration was properly allowed.
Held, also, that leave to amend the writ ought to have been granted.

ERROR to the Tippecanoe Circuit Court.

DAVISON, J.-This was an action of trespass quare clausum fregit. The declaration was originally filed in the name of the state, for the use of the inhabitants of congressional township number 21, in range number 3, &c. It contains two counts, in each of which the defendants were charged with having broken and entered a certain school-house belonging to district number 7, in township number 21, of range number 3, &c. Two pleas were pleaded to the first count, which led to issues of fact. To the second count there was a demurrer sustained.

At this stage of the proceedings the plaintiff moved for leave to amend the declaration, by striking out the words "for the use of the inhabitants," and inserting in lieu

1854.

AKER

V.

thereof "for the use of school district number seven." May Term, Leave was granted, and the declaration amended accordingly. This amendment, however, produced a variance between the declaration as amended and the writ; and on THE STATE. account of that variance the defendants moved to set aside the declaration. Pending that motion the plaintiff asked leave to amend the writ so as to conform with the amended declaration. This the Court refused; but the defendant's motion was sustained; the declaration was set aside; and judgment given against the plaintiff.

The Circuit Court very correctly permitted the plaintiff to amend her declaration; and we think an amendment of the writ should also have been allowed. An act in force at the time of these proceedings, provided that "the Court in which any action is pending may give leave to amend any process, pleading, or proceeding in such action, either in form or substance, for the furtherance of justice." R. S. 1843, c. 40, s. 228. That provision evidently applied to the case before the Court. From the amendment of the writ no injustice could have resulted to the defendants. They had filed pleas to the merits, upon which issues of fact were raised. No doubt they were sufficiently apprised of the commencement and pendency of the suit. It appears to us that the "furtherance of justice" required the Court to grant leave to amend the writ. 8 Blackf. 5.-1 Ind. R. 17, 54.-3 Ind. R. 216.

Per Curiam.-The judgment is reversed with costs. Cause remanded, &c.

D. Mace, for the state.

AKER V. THE STATE.

June 2.

APPEAL from the Randolph Court of Common Pleas. Friday, STUART, J.-This cause, brought here on an agreed state of facts, presents the same question decided in Maize v. VOL. V.-13

May Term, The State, 4 Ind. R. 342. For the reasons there given, the 1854.

SNYDER

V.

THE STATE.

same judgment follows.

Per Curiam.-The judgment is affirmed with costs.
B. McClelland, for the appellant.

R. A. Riley, N. B. Taylor and J. Coburn, for the state.

Saturday,
June 3.

SNYDER V. THE STATE.

An information for retailing spirituous liquor which does not allege a price for which the liquor was sold, is bad on motion to quash.

To convict a defendant of a misdemeanor, it must be proved in what county the offence was committed.

APPEAL from the Decatur Circuit Court.

STUART, J.-Catharine Snyder was charged with selling liquor without license. Motion to quash overruled. Trial and conviction.

The Court erred in overruling the motion to quash. The facts set out do not constitute a sale. Price is an essential element in the idea of sale and should be alleged. The same point has been repeatedly held in this Court. Divine v. The State, 4 Ind. R. 240.

On other grounds, the conviction is wrong. The evidence is all in the record. It does not appear in what county the offence was committed.

Per Curiam.-The judgment is reversed with costs. Cause remanded, &c. (1).

J. Gavin, for the appellant.

(1) The judgment in another case of Snyder v. The State, was reversed, on this day, for the reasons given in this case.

May Term, 1854.

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WAKEFIELD V. THE STATE.

WAKEFIELD

V.

The judicial powers of justices of the peace are wholly statutory, and must be THE STATE. strictly pursued.

Justices of the peace, by the R. S. 1843, have not jurisdiction of riots.

ERROR to the Bartholomew Circuit Court.

STUART, J.-Indictment for a riot, against Wakefield, O'Neil, Gilbert, and others. Plea, not guilty. Trial by jury, upon which Wakefield, who alone was on trial, was convicted and fined 5 dollars.

It appears by bill of exceptions, that Wakefield offered in evidence the transcript and proceedings had before a justice of the peace for the same identical riotous acts, whereby it appeared that there had been a trial by jury, verdict of guilty, and fine of 5 dollars, but no judgment; the justice having, on motion, discharged Wakefield, on the ground of want of jurisdiction.

The only question argued is, whether the justice had
jurisdiction; for it is conceded on all hands that if he had,
the record was in substance sufficient to show a former
conviction. The jurisdiction of the magistrate is therefore
the only point made and decided in the case.

Justices of the peace have jurisdiction in cases of assault
and battery, affrays, and other breaches of the peace, with
power to fine to the extent of 20 dollars. R. S. 1843, c.
55, s. 6. The phrase "other breaches of the peace," does
not seem to mean much-certainly can not be taken to
mean offences where a higher fine, accompanied with im-
prisonment, may be inflicted. If it has any practical mean- «
ing, it must be such offences as would be adequately pun-
ished by fine alone, and not exceeding 20 dollars. Henry
v. Hamilton, 7 Blackf. 506. The 55th chapter treats "of
the powers and duties of justices of the peace in criminal
cases and proceedings." But, clearly, offences of the grade
of riot, punishable by fine and imprisonment, were not
included nor intended to be. For in c. 53, art. 2, s. 59, the
offence of riot is defined, and the punishment prescribed is

Saturday,
June 3.

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