5 286 129 471 Nov. Term, a devise to the children of those to whom the life estate 1854. was given. It is true the latter words, in their legal imTHE WAYNE port, are words of limitation; but the connection in which TURNPIKE they are used obviously shows that the testator intended COMPANY to use them in a restricted sense, to mean their children. COUNTY V. BERRY. In this view, the intention of the testator seems to be obvious. His purpose, no doubt, was to make the children of Gerardus and Margaret the ancestor or stock of a new inheritance; and to carry out that intention, the words "their children, the heirs of their bodies," must be construed to be words of purchase and not of limitation. Therefore the rule in Shelley's case is not applicable. We think the effect of the devise was to vest in the lessors of the plaintiff a remainder in fee. It follows that the judgment must be reversed. Per Curiam.-The judgment is reversed with costs. J. G. Marshall, for the plaintiff. THE WAYNE COUNTY TURNPIKE COMPANY V. BErry. Suit by B. against the Wayne County Turnpike Company, for damages for an injury sustained by him by a fall through the sidewalk of a bridge within the corporation of Cambridge City, alleged to belong to said company, and which was out of repair. The Court allowed the plaintiff to amend his complaint on the trial, by inserting the averment that he was ignorant that the bridge was out of repair. The record showed no abuse of discretion by the Court; and no motion for a continuance or for the taxation of costs was made. Held, that there was no error. The bridge in question was constructed by the White Water Valley Canal Company, across an existing highway which the canal had rendered impassable, and was erected for the restoration of the highway, and became a part thereof. Three or four years after its erection, and while it was yet used as a public highway, said turnpike company was incorporated, with the right of converting said highway into a turnpike, and charging tolls thereon, and burdened with the duty of keeping it in repair. The company received the highway as it was, with its bridges, culverts, &c., subject to existing easements. Held, that, as to the public, the turnpike company was bound to keep the bridge Nov. Term, in repair. Semble, also, that the canal company, and, if the highway was along a street of APPEAL from the Wayne Circuit Court. PERKINS, J.-Leonidas Berry brought suit against The President and Directors of the Wayne County Turnpike Company, to recover damages sustained by him from a fall through a bridge alleged to belong to said company, and which was out of repair. The bridge was within the corporation of Cambridge City. The company put in a general denial of each and all the allegations of the plaintiff's complaint, and pleaded further that the bridge in question had been built, before the organization of the turnpike company, by the White Water Valley Canal Company; also that the defendant knew the bridge was out of repair; and also that it was through a sidewalk of the bridge that the plaintiff fell, which sidewalk was neither built nor owned by the turnpike company. The plaintiff demurred to the plea setting up that the bridge was built by the canal company, and the Court sustained the demurrer; and he averred that the sidewalk was a part of the bridge and was the property of the company. The parties went to trial. During its progress the plaintiff asked leave to amend, by inserting in his complaint the allegation that he was ignorant that the bridge through which he fell was out of repair, and the Court permitted the amendment to be made. The trial resulted in a judgment for the plaintiff for 150 dollars. The appellant contends that the Court erred in granting the plaintiff leave to amend. Sec. 97, p. 48, R. S. 1852, 1854. THE WAYNE V. BERRY. Monday, Nov. Term, vol. 2, seems to give the Court a general discretionary 1854. power as to permitting amendments, but provides that THE WAYNE they shall be at the cost of the party making them, and TURNPIKE that, for good cause shown, they shall entitle the opposite party to a continuance. COUNTY COMPANY V. BERRY. There is nothing in the record exhibiting an abuse of the Court's discretion as to the amendment in question, and no motion for a continuance, or for the taxation of costs, was made. The position of the appellant now under consideration, is, therefore, without foundation. We think the Court committed no error in sustaining the demurrer to the plea that the bridge was built by the canal company. When that company constructed their improvement, they cut across an existing highway, rendering it impassable. The bridge was then erected, not for the use of the canal company, and as a part of her property, but to restore the highway. The bridge was in the place of the removed earth. It became a part of the highway. Some three or four years after said bridge was built, and while it was yet standing and used as a part of the public highway, the turnpike company was incorporated, with the right of converting said highway into a turnpike, and charging tolls thereon, and burdened with the duty of keeping it in repair. Said company received the highway as it was, with its bridges, culverts, &c., and subject to existing easements. We think, as to the public, the turnpike company was bound to keep the bridge in repair. So, also, may have been the canal company; and if said highway was along a street of Cambridge City, that corporation, likewise, may have been bound to keep said street and bridge in a passable condition. We see no reason why it might not happen, that a city, a turnpike, a canal, and a railroad company should, as to the public, be liable for defects in a bridge, so that a person injured might elect as to which he would proceed against, leaving the companies to settle the ultimate liability between themselves. The issue of fact as to whether the sidewalk was a part of the bridge was determined by the evidence in favor of the plaintiff. The proof on the point was, that the bridge was built in 1844 or 1845; "that the draft of it was made by H. C. Moore, engineer on the White Water Valley Canal; that its width, designed for wagons, was twenty-two feet, and each sidewalk five feet ten inches, making the full width thirty-three feet and eight inches; that it was paid for by the canal company and the subscriptions of private individuals;" and that the turnpike company had, on one or two occasions, made some repairs on said sidewalks. Said company might not have been bound to keep in repair the sidewalks to the bridge, because they were originally attached to it; but so long as it did continue and recognize them as a part of the bridge, thus inviting to their use, it was bound to keep them in repair. The declarations of one Peale were admitted in evidence as to some repairs by the turnpike company on said sidewalks, and their admission is said to have been erroneous. We think it was sufficiently shown that he was acting as agent of the company when he made the declarations, to justify their admission in evidence; but if it was not, the declarations were entirely unimportant in the decision of the cause, and, hence, if erroneously admitted, their admission would not furnish a ground of reversal of the judgment. The defendant asked the Court to instruct the jury that if the plaintiff knew of the defect in the bridge, and, nevertheless, passed over it, he could not recover for the injury he received. The Court refused this instruction. It expressed the law in the abstract, but, under the evidence, there was no error in refusing to give it. Instructions should be relevant, and applicable to the evidence in the cause. In this case, there was no evidence tending to show that the knowledge in question did, or might, exist. Indeed, no questions touching the point were asked by either party. The appearance, even, of the sidewalk or bridge, at this time, is not disclosed. When the plaintiff had proved that the sidewalk was, and had for a length of time been defective, that it belonged to the defendant, that VOL. V.-19 Nov. Term, THE WAYNE COMPANY V. BERRY. Nov. Term, in passing it, in the usual course of travel, it broke through, 1854. WRIGHT V. causing him to be precipitated below to his injury, he made out a prima facie case for recovery, and if, in making THE STATE. Out that case, he did not show his own carelessness in the matter, the burden of making the proof was upon the defendant. The proof was not made. On the case, as presented to the jury, a verdict was found for the plaintiff, and we discover nothing in the record that will authorize us to reverse it. See The President, &c., of Mount Vernon v. Dusouchett, 2 Ind. R. 586. Per Curiam.-The judgment is affirmed, with 5 per cent. damages and costs. W. A. Bickle, for the appellants. J. and H. C. Rariden, for the appellee. 5 290 157 176 5 290 0163 463 h163 464 163 465 5 290 168 311 | 168 312 e168 313 WRIGHT V. THE STATE. Where a prisoner has been given in charge, on a legal indictment, to a regular jury, and the jury has been unnecessarily discharged, he has been once put in jeopardy, and the discharge of the jury is equivalent to a verdict of acquittal. The failure to embody in the R. S. 1852 a provision in relation to Circuit Courts similar to section 325, p. 733, R. S. 1843, (which is substantially enacted in relation to Courts of Common Pleas by the act organizing them), is a casus omissus within the meaning of section 172, 2 vol. R. S. 1852, p. 383, and said section 325, p. 733, R. S. 1843, is therefore continued in force. The discharging of a jury before verdict, by the Circuit Court, in a criminal case, against the will of the prisoner, on account of the expiration of the time fixed by law for the continuance of the term, is, under said section 325, unnecessary, and equivalent to a verdict of acquittal. A jury, while engaged in the trial of a prisoner for murder, was discharged against the will of the prisoner, by the Circuit Court, by reason of the expiration of the time fixed by law for the continuance of the term, and the prisoner was remanded to jail to await another trial. The prisoner soon afterwards applied to the judge of the Court of Common Pleas of the county, for a writ of habeas corpus. The writ was granted, and, on the hearing, the foregoing facts having been made to appear, the judge remanded the prisoner to jail to await his trial in the Circuit Court. |