May Term, 1854. TAYLOR V. DODD. Friday, TAYLOR V. Dodd. An answer without oath contained a material admission against the defendant. After depositions had been taken, the defendant, who seemed not before to have known the extent of his admission, filed his affidavit and the affidavits of his solicitors, to the effect that as the answer was not under oath, it had been loosely prepared, and signed by the defendant without reading, and that the admission was a mistake of his solicitors and contrary to the fact; whereupon he asked leave of the Court to amend his answer so as to deny the thing so admitted, which the Court granted. Held, that the leave to amend was correctly given. APPEAL from the Tippecanoe Court of Common Pleas. STUART, J.-Taylor filed his bill in chancery against Dodd, alleging that owing to some embarrassments, he had sold Dodd ten acres of land, specifying the terms and price; but alleging the sale to be conditional only, Taylor having three months to redeem. It is not denied but that the price, 1,000 dollars, was paid by Dodd. But it is insisted, as a breach of the trust coupled with the conditional sale, that before the expiration of the three months, Dodd sold to one Bramble for 1,900 dollars; and that Dodd was thus incapable of reconveying, and refused to account to Taylor for the profit, deducting the purchase-money, interest and expenses. Dodd's amended answer denies all the material allegations in the bill relating to the trust. The cause came to final hearing on the bill, answer, depositions, &c. The decree of the Court was in favor of the defendant, dismissing the bill at complainant's costs. It is assigned for error 1st. That the Court permitted Dodd to make a material amendment, after the depositions were taken and the cause ready to be set down for hearing. 2d. That the decree should, on the evidence, have been for the complainant. The amendment to the answer was a very material one. The complainant required answer without oath. Among other things, the answer admitted the allegation in the bill that Taylor had three months to redeem. Dodd filed an affidavit for a continuance, to which Taylor filed written objections, giving great prominence to the above admission. It would seem that this was the first Dodd knew of the extent of the admission. He then filed his own affidavit, and the affidavits of his solicitors, to the effect that as the answer was not under oath, it had been loosely prepared, and signed by Dodd without reading; that the above admission was a mistake of his solicitors, and contrary to the fact. On these affidavits, he moved the Court for leave to amend the answer, so as to deny the trust and the allegation of time to redeem. The Court permitted the amendment. This is one of the errors complained of. We think the ruling of the Court correct. Coquillard v. Suydam, 8 Blackf. 24. Whether the result was reached by a direct amendment to the answer on file, or by an amended answer, or by a supplemental answer, seems to us immaterial. The substance and effect are the same. The depositions fall far short of supporting the case made in the bill. Even taking the answer, not under oath, as a sort of general issue, where one witness and strong corroborating circumstances are not necessary, the depositions do not raise even a slight presumption in favor of Taylor. Davis v. Stonestreet, 4 Ind. R. 101. Per Curiam.—The decree is affirmed with costs. J. Pettit, S. A. Huff, J. M. La Rue and B. O. Deming, for the appellants. W. C. Wilson and D. Mace, for the appellee. May Term, 1854. THE NEW- ROAD COM- V. PICKENS. THE NEW-ALBANY AND Salem RailrOAD COMPANY v. PICKENS. By an instrument in writing the subscribers agreed to take the number of shares, of 50 dollars each, annexed to their names, in the capital stock of the New-Albany and Salem Railroad Company, to extend the road from Bloomington to Gosport, and pay the same in fifteen instalments of, &c., per share, the first instalment to be paid on, &c., and one instalment every two May Term, 1854. THE NEW ALBANY AND PANY V. PICKENS. Monday, months thereafter till the whole was paid. The defendant subscribed his name, and put opposite thereto "4 shares, 200 dollars." There was a provision in the charter of the company that the company should have power "to demand at such time and in such proportion as they shall see fit, the sums of money due by stockholders on their respective money subscriptions of stock, under pain of forfeiture of the shares of their stock, and all previous payments," &c., "or sue therefor, and recover the amount due in an action of assumpsit, at their option." In a suit by the company for instalments due, Held, that the time for the payment of the instalments having been fixed by the contract, no demand of payment was necessary before suit. Held, also, that it was not incumbent upon the company, before suit, to elect either to exact a forfeiture or sue for the money, and notify the defendant thereof. Held, also, that a readiness to extend the road from Bloomington to Gosport was not a condition to the payment of the instalments. ERROR to the Putnam Circuit Court. DAVISON, J.-Assumpsit. The declaration alleges that the defendant, on the 27th of September, 1849, made a certain note in writing in this form: "We, the subscribers, agree to take the number of shares, of fifty dollars each, annexed to our names, in the capital stock of the NewAlbany and Salem Railroad Company, for the purpose of extending said road from Bloomington to Gosport, and pay the same in fifteen instalments of three dollars and thirtythree cents per share; the first of which instalments is to be paid on the 1st of July, 1850, and one instalment every two months thereafter until the whole is paid." To this note the defendant subscribed his name, and opposite thereto annexed four shares, 200 dollars. It is averred that on the 1st of April, 1852, eleven instalments on each share of the stock subscribed by the defendant, in all amounting to 146 dollars and 52 cents, were due and payable, &c.; of all which, &c., the defendant had notice, &c., by means whereof, &c. Demurrer to the declaration sustained, and judgment given for the defendant. Two objections are relied on in support of the demurrer. 1. That the declaration does not allege a demand of payment of the instalments. 2. There is no averment of readiness on the part of the company to construct the road from Bloomington to Gosport. The defendant cites a section in the plaintiff's charter which provides that the company shall have power "to demand at such time and in such proportion as they shall see fit, the sums of money due by stockholders on their respective money subscriptions of stock, under pain of forfeiture of the shares of their stock, and all previous payments thereon, to the said association, or sue therefor, and recover the amount due in an action of assumpsit, at their option." Acts of 1842, p. 7, s. 19. This provision confers upon the corporation power to demand money due by stockholders at such time, &c., as the company shall see fit; but in this case, the contract itself, in point of law, dispenses with the necessity of such demand. The note sued on shows specifically the amount of each instalment and the time of payment. The rule is well settled, if not elementary, that where the time of payment is fixed, no demand of payment before suit is required. But it is said, "that the company must make their election either to exact a forfeiture or sue for the money, and of that election the defendant was entitled to notice." No reason or authority has been adduced in support of the position just stated, nor do we know of any. The defendant was clearly in default, by his failure to pay the instalments within the periods stipulated. The plaintiff was bound to pursue one of the remedies pointed out in her charter. She has done so by the commencement of this suit. There is nothing in the transaction that required the company to notify the defendant of the remedy she was going to adopt. The second objection is also untenable. The entire consideration for the defendant's promise was the four shares of capital stock in the company, and it is to be intended that he had become a stockholder to that amount. It is true, the contract, upon its face, states that the money subscribed was to be applied in the construction of the road between certain designated points; but the language used, viz., “for the purpose of extending the road from Bloomington to Gosport," raised no condition to the payment of the instalments. May Term, 1854. JENNINGS V. LORING. It appears to us that the defendant, over his own default in furnishing means for the purpose, would have no right, in his defence to this action, to set up the plaintiff's want of readiness to commence the work. 9 Johns. R. 217.— 11 Ired. 53. Per Curiam.-The judgment is reversed with costs. Cause remanded, &c. J. Cowgill, for the plaintiffs. J. A. Matson, for the defendant. Monday, JENNINGS v. LORING and Others. A new trial will not be granted on account of newly discovered evidence which is merely cumulative. The omission to assess nominal damages, where there is a mere naked technical right to recover, is not a ground for a new trial. APPEAL from the St. Joseph Circuit Court. STUART, J.-Trespass for an alleged false imprisonment of Jennings. Plea, the general issue. ment for the defendants. Verdict and judg The evidence is all made part of the record. The plaintiff, Jennings, had sold a lot of blacksmith's tools to one of the defendants, who was dilatory about paying for them. Jennings, impatient of the delay, broke into the shop and took the tools. Loring filed an affidavit and took out a warrant against Jennings for larceny. The defendants are Loring, Ruple, the justice who issued the warrant, Liggit, who served it, and Colt, who was a witness on behalf of the state. The warrant was returned before another justice of the peace, the charge investigated, and Jennings acquitted. Hence this action against the several parties who acted in the prosecution. Among the reasons assigned for a new trial, was that of newly discovered evidence. The affidavit of the witness |