the fact that there are three such claims made by the same party will not be taken notice of, as of course, and in a collateral way, for the purpose of affecting the jurisdiction. Ziegenhager v. Doe, 1 Ind. 296. Per Curiam.-The judgment is reversed with costs. Cause remanded, &c. J. B. Julian, for the state. O. P. Morton and J. M. Wilson, for the appellees. Nov. Term, 1854. CALKINS V. EVANS. CALKINS V. EVANS and Another. The answer of the defendant in chancery, under oath, can be overcome only by at least one witness and strong corroborating circumstances. In chancery, the conclusions of the Court on the evidence presented, are entitled to the same weight as the verdict of a jury. The verdict of a jury will not be set aside by the Supreme Court, unless it is clearly wrong. December 4. APPEAL from the Tippecanoe Court of Common Pleas. Monday, STUART, J.-Calkins had borrowed of Evans, as school commissioner, 408 dollars, and executed a mortgage to secure it. This loan, he alleges, was paid, and the bill seeks an account, and that the mortgage be satisfied, &c. The mortgage was dated March 22, 1840, and the alleged payments were as follows, viz.: March 12, 1841, 78 dollars and 25 cents; January 23, 1842, 90 dollars; March 22, 1843, 70 dollars and 26 cents; March 30, 1846, the balance, 130 dollars and 13 cents. It is alleged that 8 dollars and 35 cents of the first payment, and the whole of the second payment, 90 dollars, were never credited on the books of the school commissioner, nor in any other way. In his answer, Evans admits that the first payment was 70 dollars, and denies the second payment totally. All the other payments are admitted. The answer is under oath, and the whole amount in controversy is 98 dollars. The Court, on final hearing, dismissed the bill. Calkins appeals. Nov. Term, 1854. CALKINS V. EVANS. The controversy is narrowed down to this: Is the evidence in the record sufficient to overcome the sworn answer of Evans denying the payment of the 98 dollars? To do this, Evans's answer must be contradicted by at least one witness and strong corroborating circumstances. The opinion of the presiding judge is given at length in one of the briefs, as a part of the argument. But the view we take of the case renders it unnecessary that we should examine the positions assumed in the analysis of the evidence. The conclusions of the Court below, on the final hearing, are not to be distinguished from the verdict of a jury. Had this been a verdict instead of a finding by the Court, we could not, under the well-settled practice of this Court, disturb it, even though we should be of opinion that had we tried the cause, we might have come to a different conclusion. One feature may be thought to distinguish this case from ordinary trials at law. The evidence is all written, in the form of depositions. The witnesses do not appear before the Court below. So that the test of credibility afforded by the appearance and manner of the witness is as much wanting in that Court as in this. We have, therefore, the same identical basis on which to form our judgment of the evidence, its weight, force and credibility, that the Common Pleas had. There is not even a shade or tint of variation. We are not aware, however, that this distinction has ever been allowed. It will be readily seen that the same thing might also occur in a case at law, where the whole evidence was the depositions of foreign witnesses. Whether, in a case of great hardship, this distinction might not be made available as an exception to the rule, it is not necessary to decide. The facts of the case at bar do not require it. The answer of Evans is so nearly counterbalanced by one witness and corroborating circumstances, that a verdict of a jury either way ought not, in our opinion, to have been disturbed. When the Court, either by operation of law or by the agreement of the parties, has been substituted for a jury, its conclusions are entitled to the same conside ration and respect. Such finding is not to be lightly set Nov. Term, aside. It must remain as the measure of the rights of the parties, unless it is clearly wrong. Per Curiam.-The decree is affirmed with costs. R. C. Gregory, for the appellant. H. W. Chase, for the appellees. 1854. SHILLING V. THE STATE. Indictment for keeping a tippling house, &c. The indictment charged that S., APPEAL from the Franklin Circuit Court. Monday, DAVISON, J.-The indictment in this case alleges that December 4. Shilling on, &c., at, &c., did keep a certain tippling house, wherein spirituous liquors were sold, without license, to be drank in and about the same; which tippling house was then and there kept by him in a disorderly manner, to the annoyance, &c., contrary, &c. Verdict for the state. Motions for a new trial and in arrest overruled, and judgment on the verdict. This indictment is predicated on s. 68, c. 53, R. S. 1843, and the charge is in the language of the statute. But it is said that the indictment is defective, because it does not set forth the particular acts which composed the disorderly manner in which the tippling house was kept. As a general rule, the essential facts which constitute the offence should be specifically and certainly stated in the indictment; but there is a class of cases to which that rule does not apply. Whenever the charge consists of a series of acts, they need not be specially described, because they are not the offence itself, but merely go to make up the Nov. Term, 1854. Аввотт V. MUIR. evidence of the offence. Thus it is sufficient to charge a person generally with "keeping a house of ill fame, a disorderly house, or a common gaming-house." 1 Chitty Crim. Law 171.-The State v. Bougher, 3 Blackf. 307. Indeed the law, in order to avoid prolixity, allows general pleading in all cases where the subject comprehends a multiplicity of matter and a great variety of facts. The various acts of quarreling, fighting, profanity, &c., which often occur in and about tippling houses, and render them disorderly, make up the evidence of the manner in which they are kept; and, that evidence need not, in our opinion, be stated in the pleadings. We think the present is one of the cases in which the law regards it sufficient to charge the offence in the language of the statute which creates it. 3 Blackf. 307. Per Curiam.-The judgment is affirmed with costs. G. Holland, for the appellant. O. B. Hord, for the state. Monday, ABBOTT V. Muir. The declarations of the assignor of a promissory note not negotiable by the law merchant, if made before the assignment, are admissible in a suit by the assignee against the maker. APPEAL from the Ripley Circuit Court. DAVISON, J.-Muir sued Abbott, in assumpsit, on a promissory note for the payment of 400 dollars. The note was dated September 5, 1850, payable to one Elkanah Burroughs one year after date, and by him, on the 8th of July, 1851, assigned to Muir. Pleas, 1. The general issue. 2. Failure of consideration. 3. Fraud. 4. That the note was obtained by duress of imprisonment. Issues. Verdict for the plaintiff. New trial refused, and judgment on the verdict. The defendant, upon the trial, offered to prove by one 1854. SCOBEY V. Ross. John Burroughs, that Elkanah Burroughs, the payee and Nov. Term, assignor of the note, before its assignment, and while he was the holder and owner of it, stated to the witness that "just before the note was executed, the defendant had committed a rape on his, the assignor's wife, and in consideration of compounding a criminal prosecution for that crime, and that no prosecution for the same should be had, and to prevent the same, the defendant gave the note." But the Court refused to allow the witness to give the above statements in evidence, on the ground that the assignor himself was competent to prove them. The evidence should have been admitted. It is now a settled rule, that such declarations by the assignor of a note, like the present, not negotiable by the law merchant, if made before the assignment, are admissible against the assignee in a suit between him and the maker. These admissions, it is said, "derive their value and legal force from the relation of the party making them to the property in question, are to be taken as parts of the res gestæ, and may be proved by any competent witness who heard them, without calling the party by whom they were made." 1 Phill. Ev. 394.-1 Greenleaf Ev. 231.-Byles on Bills 333. But in this Court the present is not an open question. It has been directly met and decided in Blount v. Riley, 3 Indiana 471. Upon the authority of that case, the judgment of the Circuit Court must be reversed. Per Curiam.-The judgment is reversed with costs. Cause remanded, &c. G. Holland, for the appellant. W. S. Holman, for the appellee. SCOBEY V. Ross. A. employed B. and C., attorneys, to collect a decree in A.'s favor of 500 dollars, and agreed in writing to pay them for their services 150 dollars of the 5 445 149 635 5 445 158 483 |