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Marsteller, Administrator, v. Crapp.

March, 1874, to 2,300 carpet dusters at 80c......... 1,840.00 June, 1874, to office building...

35.00

January 22d, 1875, to balance on settlement on

church

77.00

10.08

..$2,202.08."

September, 1875, to 72 brushes at 14c........

"Total........

The defendant answered:

1. In general denial;

2. Payment;

3. Settlement and payment.

The plaintiff replied in denial.

Upon the trial a jury returned a verdict for the plaintiff for one thousand dollars, and, over a motion for a new trial, challenging the sufficiency of the evidence and some of the instructions given by the court, judgment was rendered upon the verdict against the defendant, payable out of the assets in his hands as administrator, as above stated.

"Although both the plaintiff and defendant, together with several other witnesses, testified on the trial, none of them gave a detailed statement of the transactions between the plaintiff and Morley, the decedent, concerning the several items and subjects embraced in the plaintiff's account.

The testimony comes to us, therefore, in a somewhat fragmentary form, and we have much difficulty in making a satisfactory application of some portions of it to the matters seemingly in controversy between the parties. So far as we are able to judge from the evidence the plaintiff's account embraced all items of indebtedness which he claimed to have held against the decedent during the time covered by the account.

The plaintiff in his testimony showed that he had received from the decedent, on the 5th day of January, 1874, $170.79.

Marsteller, the defendant, testified, that, on the 21st day

Marsteller, Administrator, v. Crapp.

of January, 1874, the decedent paid the plaintiff, in a settlement, $580.00; that the decedent, on the 22d day of January, 1875, in another settlement, paid the plaintiff the further sum of $750.00. These last two payments were not denied by the plaintiff in his testimony.

In this condition of the evidence, we are at a loss to understand upon what theory the jury found so large a verdict in favor of the plaintiff. We think the evidence, whether considered as a whole, or in its separate parts, does not fairly tend to sustain the verdict for so large a

sum.

The court, amongst other things, instructed the jury, that, "If you find for the plaintiff, you have the right, if there has been unreasonable [delay] in payment, to allow the plaintiff interest on his claim."

In the first place, as has been seen, there was no charge or claim in the plaintiff's account for interest, nor any general demand which would cover interest.

In the next place there was, in our estimation, no evidence tending to show an unreasonable delay of payment under all the circumstances.

The evidence tended rather to show such an unsettled and uncertain condition of the accounts between the plaintiff and the decedent's estate as made a resort to legal proceedings on the part of the defendant a proper method for their adjustment.

We are, consequently, of the opinion, that the instruction above quoted, although correct as an abstract rule of law, was not applicable either to the issues or the evidence in the cause, and hence may have misled the jury.

In our judgment, the court below erred in overruling the defendant's motion for a new trial.

The judgment is reversed, at the costs of the appellee, and the cause remanded for a new trial.

The State v. Pitzer.

THE STATE v. PITZER.

Criminal Law.—Malicious Trespass.—Indictment.—It is immaterial, in an indictment for malicious trespass, whether the injury complained of be alleged as being to the damage of the property injured or to the owner.

From the LaPorte Circuit Court.

G. Ford, Prosecuting Attorney, and T. W. Woollen, Attorney General, for the State.

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Howк, C. J.-At the September term, 1878, of the court below, the appellee was indicted for malicious trespass. The indictment contained two counts.

In the first count it was charged, in substance, that the appellee, on the 8th day of June, 1878, at LaPorte county, Indiana, "did then and there unlawfully, maliciously and mischievously injure and cause to be injured a certain single harness, the property of Mary D. Everhart, by then and there unlawfully, maliciously and mischievously cutting into pieces said harness, to the damage of said Mary D. Everhart of eight dollars."

In the second count of said indictment, it was further charged, in substance, that the appellee, on the same day and at the same county, "did unlawfully, maliciously and mischievously injure and cause to be injured a certain buggy, the property of one Mary D. Everhart, by then and there unlawfully, maliciously and mischievously cutting and scratching the top, dash-board and painting of said buggy, to the damage of said Mary D. Everhart of twentyfive dollars."

The appellee moved the court to quash said indictment, which motion was sustained, and to this decision the State, by its attorney, excepted, and the court rendered judgment for the appellee.

In this court the State has assigned as error the decision of the circuit court in quashing the indictment.

We have no brief from the appellee in this court, but

Kennedy, Administrator, v. Bebout et al.

we learn from the argument of the prosecuting attorney, that the only objection taken to the indictment in the circuit court was, that it charged the value of the damage done as done to the owner of the property, instead of to the property itself. This objection was considered by this court in the recent case of The State v. Sparks, 60 Ind. 298, in which case it was held to be perfectly immaterial whether the indictment charged that the injury complained of was to the damage of the property or to the damage of the owner of the property. "If either mode of expression is adopted, the indictment would show, with sufficient clearness and certainty, the value of the damage done;' and that is all that the indictment is required to show, under the statute." 2 R. S. 1876, p. 462, sec. 13.

We are clearly of the opinion in the case at bar, that the court below erred in quashing the indictment.

The judgment is reversed, at the appellee's costs, and the cause is remanded, with instructions to overrule the appellee's motion to quash the indictment, and for further proceedings.

KENNEDY, ADMINISTRATOR, v. BEBOUT ET AL.

INSTRUCTION TO JURY.-Personal Opinion of Judge.-Law of the Case.—It is error in a court, while properly announcing a principle of law laid down by the Supreme Court as the law of the case at bar, to supplement it by a statement that, in the opinion of the court giving the instruction, the principle so announced is erroneous.

From the Rush Circuit Court.

J. Helm, Jr., W. Cassady and F. Bigger, for appellant. L. Sexton, C. Cambern and B. L. Smith, for appellees. BIDDLE, J.-This is the same case as that of Goddard v.

Kennedy, Administrator, v. Bebout et al.

Bebout, 40 Ind. 114. Goddard has since died, and it now comes up in the name of his administrator. We need not re-state the issues; they will be found in the reported case, and also the law which governs them. On its reversal and remandment, it was re-tried on the same issues, with the same result a verdict for the appellees, the defendants below. The case is now presented upon exceptions to the instructions given and refused by the court, and upon the insufficiency of the evidence to sustain the verdict.

At the trial the court instructed the jury as follows: "It is not necessary that there should have been an adequate consideration; it is sufficient if there was any at all. The Supreme Court have said, by Judge DoWNEY, in this case, that, if Goddard was induced to part with his money upon the faith of this agreement, it would be a sufficient consideration for it; and, although I do not believe this a true statement of the law applicable to such a contract, yet I am bound by it, and give it to you as the law by which you are to be governed."

This instruction is erroneous. The question was fully considered in the case of Clifford v. The State, 56 Ind. 245; Howk, J., delivering the opinion of the court. The private belief or opinion of the judge can not make law, nor affect it in the least, however wise he may be. Law-to revert to an elementary principle which all are presumed to know is a rule of action established by the supreme power in a state. It is not the belief of the judge. When the Supreme Court has delivered its official opinion upon the law of a given case, it is the supreme law of the State as to that case; and when the case, with the opinion, is remanded for a new trial, it is the duty of the circuit judge to obey it. He may entertain his beliefs or his disbeliefs, as he chooses; they may agree or disagree with the law of the land; but he must keep them separate from the law, while he is giving official instruction to a jury upon

the

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