The Indianapolis, Pittsburgh, &c., R. R. Co. v. Brucey. THE INDIANAPOLIS, PITTSBURGH AND CLEVELAND RAILROAD COMPANY V. BRUCEY. RAILROADS-PLEADING.-A complaint against a railroad company for stock killed by the machinery of the company, will be bad, even after verdict, if it fail to aver negligence, or that the road was not fenced. APPEAL from the Hancock Common Pleas. HANNA, J.-Suit commenced before a justice, to recover the value of two cows, killed by the rolling stock of said company. The complaint averred that the said cows were unlawfully killed, &c., but did not aver negligence, nor that the road was not fenced. There was no objection taken to the complaint before the justice, nor until after trial on appeal. The evidence is in the record, and shows that the road was not securely fenced. The evidence on that point was objected to as irrelevant to the issue, but admitted. A motion in arrest, for want of sufficient complaint, was overruled. These two rulings, perhaps, properly present the point urged here, namely, that the suit was not properly commenced, under the statute of 1853, in reference to the liability, in the absence of negligence, of roads not fenced. The real question presented, then, is, whether the complaint, filed before the justice, was sufficient after verdict. This question has been already passed upon by this Court. The objection that there was a want of jurisdiction, or of a cause of action, may be raised on appeal. The President, &c. Co. v. Smith, 19 Ind. 42. Per Curiam.-The judgment is reversed, with costs. Cause remanded. John Davis, for the appellant. David S. Gooding, for the appellee. The State ex rel., &c. v. Wilkins' Adm'r. THE STATE ex rel. &c. v. WILKINS' Adm'r, &c. EXECUTION CLERK.-Where, in the entry of a judgment, by agreement of the parties, it is ordered by the Court that an execution shall issue thereon, but shall not be levied of the defendant's property for a specific period, except in a certain event, it does not thereby become the duty of the Clerk to issue such execution without directions so to do from the plaintiff, his agent or attorney. APPEAL from the Vigo Circuit Court. WORDEN, J.-This was an action by the appellant against the appellees. The suit was brought upon the official bond of Wilkins, deceased, given by him as Clerk of Vigo county. The breach alleged is, that in January, 1861, the relators recovered a judgment in the Vigo Court of Common Pleas, against one John C. Walter, by agreement, as follows: "It is therefore considered, that the plaintiffs recover of the defendant the sum of 328 dollars and 70 cents in damages, together with the costs and charges in this suit, amounting to 10 dollars and 60 cents; and, by agreement of parties, it is ordered that execution issue herein; but the same shall not be levied of defendant's property for 180 days from this date, unless it shall be necessary to continue and perfect a lien on defendant's property." It is alleged, that, at the time the judgment was rendered, Walter had sufficient property, subject to execution, to pay the same, and continued to have for a reasonable time thereafter; "that the Clerk wholly failed and neglected to issue execution during his continuance in office, and that, in June, 1861, Walter became wholly insolvent, whereby the relators lost their debt." A demurrer was correctly sustained to the complaint. As a general proposition, the Clerk of a Court is not required nor authorized to issue an execution upon a judgment, without the authority or direction of the party in whose favor it The Ohio and Mississippi R. R. Co. v. Burton. is rendered, his agent or attorney. Lewis v. Phillips, 17 Ind. 108. But, it is claimed, that, in this case, it was the duty of the Clerk to issue the execution without further direction, inasmuch as it was ordered by the Court that an execution issue therein. Such, in our opinion, is not the effect of the order of the Court. The effect of the order was to give the plaintiffs therein leave to issue execution, but that a levy be withheld for 180 days, unless a levy became necessary in order to continue or perfect a lien. It was not intended by the order to require an execution to be issued in favor of the plaintiffs, whether they wished it or not. It was altogether optional with them to have the execution issued, or to forego it. If they desired it issued, they should have given the Clerk directions accordingly, as in other cases. Per Curiam.-The judgment below is affirmed, with costs. THE OHIO AND MISSISSIPPI R. R. Co. v. BURTON. CONSTRUCTION OF EVIDENCE.-The decision herein turns wholly upon the construction of the evidence. See opinion at length. APPEAL from the Lawrence Common Pleas. DAVISON, J.-Burton sued the railroad company, alleging in his complaint that the defendant, on the 8th of January, 1862, at or near Georgia, on the line of her road in the county of Lawrence, without leave, unlawfully took 398 cross ties belonging to the plaintiff, of the value of 98 dollars and 70 cents, wherefore he has sustained damage to the amount of The Ohio and Mississippi R. R. Co. v. Burton. 100 dollars, for which he demands judgment, &c. The defendant answered by a denial. The Court tried the issues and found for the plaintiff, 82 dollars and 25 cents. New trial refused and judgment, &c. The only question to settle is, does the evidence sustain the finding? Upon the trial the plaintiff, having been sworn as a witness, testified thus: "Prior to December, 1861, I had some talk with Baldwin, the road-master of the defendant's railroad, by which I was to deliver any quantity he might choose, of good merchantable cross ties, on the line of the road, at such times and places as was convenient, and the defendant was to pay me therefor, on such delivery, 25 cents per cross tie. The ties were to be paid for on delivery. I accordingly delivered 102 cross tries, on the line of the road at the town of Georgia, and 229 on said line one mile distant from Georgia. After the delivery of the ties, and during the month of January, 1861, William Moffatt, an engineer of the defendant, took away on the defendant's cars 102 of the ties, and afterwards, in January, 1862, he, Moffatt, took away 229 of said ties, without my consent, and without paying for the same. After the removal of the ties I saw a portion of them laid down and used on the track of the defendant's road. The defendant did not, when the ties were delivered, or at any time since, pay me for them, or any part of them. This was all the evidence. If the delivery of the cross ties on the line of the road was absolute, so as to vest the property in the defendant, then the plaintiff can not recover. His action should have been in form ex contractu and not ex delicto. But does a proper construction of the evidence show an absolute delivery to the defendant? The plaintiff, in his testimony, says that he delivered the ties on the line of the road and that defendant took them away without his consent, and without paying for them. Now, is that anything more than saying that he placed the ties on the line of the road, intending Cox v. Hutchings. to deliver them when paid for? He does not say that he delivered the ties to the defendant, and hence it may be readily inferred that he considered them, while on the line of the road, and until he was paid, his property. The lower Court has, it seems to us, construed the evidence correctly, and we are not inclined to disturb its conclusions. Per Curiam.-The judgment is affirmed, with 5 per cent. damages and costs. N. F. Malotte, Thos. R. Cobb and Theo. Gazlay, for the appellant. Gideon Putnam, for the appellee. Cox v. HUTCHINGS. NEW TRIAL-SURPRISE.-Under the law allowing parties to testify, where the plaintiff simply swears to the truth of his complaint, it is doubtful whether the defendant can in any case have a new trial on the ground alone that he was surprised by such testimony of the plaintiff. NEW TRIAL.-NEWLY DISCOVERED EVIDENCE.-A new trial will not be granted on the ground of newly discovered evidence, where such evidence is merely cumulative, or where it might not change the result on another trial. PRACTICE. An application for a new trial shall be verified. APPEAL from the Montgomery Circuit Court. PERKINS, J.-Complaint for a new trial. Two grounds are assigned: 1. Surprise at the testimony of the plaintiff, Hutchings. 2. Newly discovered evidence. The case in which the new trial is asked was this: |