The Board of Commissioners of Miami Co. v. Blake.

Perhaps, therefore, under the act of 1855, the board might, and, it might seem from the case of The Board, &c. v. Potts, 10 Ind. 286, that the board should allow for such service as those for which compensation is claimed in this suit.

But in 1861 the Legislature enacted this law: "That the Board of County Commissioners shall annually allow the clerk and sheriff of their respective counties an annual compensation for extra services as such, not exceeding one hundred dollars each;" but before the allowance is made an itemized and verified account must be filed; and when that is done, "the board may then make such reasonable allowance as they deem proper, but in no event to exceed the sum above named; which allowance shall be in full of all compensation for extra and other services, where no certain fee is fixed by law." 2 G. & H. p. 652. We think this section should be construed to mean, where no compensation is given by law; and thus construed, to cover the claim in the case at bar so far as it originated under it; but however this may be, we think that claim included within the act of 1855, sec. 25, p. 113, which reads thus:

"In all criminal prosecutions, when the person shall be acquitted, no costs against such person, nor against the State or county, for any services rendered in such prosecution by any clerk, sheriff, coroner, justice of the peace, constable or witness, but in all cases of conviction, such fees and costs shall be taxed and collected as in other cases, from the person convicted."

We think a discharge by nolle prosequi should, within the spirit of this section, be regarded, as to the question of costs, as an acquittal. The object of the section was to restore the common law as to costs in criminal prosecutions, so far as the State and county are concerned. It was intended to exempt them from liability for costs in the cases of criminal prosecutions against individuals of the community, whether

Richardson et al. v. Gibson.

the prosecutions resulted in convictions or not. The nolle prosequi, for the purposes of this statute, may be well regarded as embraced by it under the term acquittal. The nolle prosequi, like an acquittal, ends the given case, and at the costs of the State, the party who pays no costs. It can not be entered "except by order of the Court, on motion." 2 G. & H. p. 414, sec. 102. It can scarcely be supposed that it would be ordered in a case where a conviction could be had.

We think we shall carry out the intention of the Legislature and do justice, by thus construing these statutory provisions, and without in the least overstepping the limits prescribed for statutory interpretation and construction.

We think, under the act of 1861, one hundred dollars limits the amount which the county can allow severally to clerks and sheriffs for extra services, and that nolle prosequi in criminal cases are to be regarded as acquittals under the act of 1855, above quoted. See The State v. Swope, 20 Ind. 107. Per Curiam.-The judgment is affirmed, with costs. N. O. Ross and R. P. Effinger, for the appellant. Pratt & Baldwin, for the appellee.

RICHARDSON et al. v. GIBSON.

APPEAL from the Hendricks Circuit Court.

Per Curiam.- William Richardson and his wife conveyed a piece of land to their son, Payton Richardson. William was, at the time, largely indebted to James Gibson, but had partially secured the debt he owed him. Gibson sued and obtained judgment against William Richardson for the debt he owed, and, in the course of his proceedings to make the

Bevins et al. v. Cline's Administrator.

money on it, sold the land conveyed to Payton Richardson, at sheriff's sale, and became himself the purchaser thereof, and then instituted this suit to set aside the conveyance, made by William, of the land to his son, Payton, as fraudulent. On the trial, Payton offered his two co-defendants-William and wife-as witnesses. The trial was before the statute making parties competent witnesses. They were not admitted. The plaintiff obtained a general verdict in his favor on the issues, and had judgment, setting aside the fraudulent conveyance. The fact of partial indemnity did not preclude the plaintiff from looking to the land in question for the making up of any deficiency. We can't see much in the case. It is right on the evidence.

The judgment is affirmed, with costs.

C. C. Nave, for the appellants.

L. M. Campbell, for the appellee.

BEVINS et al v. CLINE's Administrator.

HUSBAND AND WIFE-ADMISSIONS.-In an action by an administrator, on a note payable to his intestate, who, at its date, was a married woman, if failure of consideration, or other defence, is pleaded by the makers, the admissions of the payee of the note, whilst living, if they tended directly to benefit or injure herself, and only collaterally effected her husband, would be competent evidence for the defendants.

STATUTES CONSTRUED EVIDENCE.-In section 3, of the act of 1861, (2 G. & H. p. 168,) the term, "confidential communications," seems to be limited to matters confided to attorneys, physicians and clergymen, and does not include communications between husband and wife, and the right to waive objections to their disclosure, therefore, does not apply to the latter.

Bevins et al. v. Cline's Administrator.

APPEAL from the Bartholomew Circuit Court.

PERKINS, J.-Suit by John Prather, administrator of the estate of Eliza J. Cline, deceased, against the makers of a note of the following tenor:

"$800. On the 25th day of December, 1855, we promise to pay Eliza J. Cline eight hundred dollars, waiving relief laws of Indiana, for value received, this June 29th, 1854.

"C. BEVINS,

"L. H. SHUMWAY."

The defendant answered, setting up a failure of consideration, in this, that John Cline and Eliza J. Cline, who was John's wife, were the equal owners, as joint tenants, of a tract of land; that they united in the sale of it to Charles Bevins, one of the makers of the note sued on, (Shumway being his surety,) and made a joint deed for the same; that, as the consideration of the sale and conveyance, Bevins gave 800 dollars cash in hand, and the note in suit, which, for certain private personal reasons, the answer alleges, was made payable to Eliza J., the wife of John, though it avers the same to be the joint property of the two. It further avers that, at the same time, and as a part of the contract, said John and Eliza J. Cline executed to said Bevins their joint bond of indemnity against the failure of the title to any of the land deeded; and that, in fact, John Cline's interest in the land was subsequently sold on execution, &c. Bevens v. Prather, 13 Ind. 392.

The plaintiff replied:

1. The general denial of the answer.

2. "That, at the time of said sale and conveyance of the land to Bevins, said John Cline and Eliza J. Cline, with the knowledge and consent of said Bevins, made an equal division of the proceeds of the sale, said John taking and receiving,

Bevins et al. v. Cline's Administrator.

as and for his share, and interest in said land, eight hundred dollars in cash, being half of the price of the land, and said Eliza J. Cline taking and receiving, with the consent of her husband, said note for eight hundred dollars, as and for her share, being the remaining half of the price of the land, said note being taken as her separate property," &c.

A demurrer to this reply was overruled, and exception taken.

The cause was tried by the Court, who found for the plaintiff the amount of the note and interest.

A motion for a new trial was denied. The evidence is in the record. It consisted of the note, the deed from Cline and wife to Bevins, a judicial record, and certain parol evidence. The judicial record was the judgment of avoidance of Bevins' title as far as derived from John Cline. The deed was the

joint warranty deed of John and Eliza J. The parol evidence was this; Reason Prather testified that the price of the land in question was 1,600 dollars; that 800 dollars was paid to John for his interest, and the note of 800 dollars was given to Eliza J. for her interest. Bevins assented to such apportionment of the purchase-money. Walter Prather testified that Eliza J. left the note with him for collection, taking his receipt in her name for it; that after her death he handed it over to her administrator.

On the trial, the defendants offered themselves as witnesses, to prove the truth of the matters set up in their answer, but the Court held them incompetent under the code. They then offered to prove, by a competent witness, the admissions made in her lifetime, by Eliza J. Cline, the payee of the note sued on, touching those matters, "but the Court rejected the evidence of said admissions, on the ground that the said Eliza J. was the wife of said John Cline, and was, for that reason, incompetent," &c.

Preliminary to a discussion of the questions to be decided, a