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BROWN

Y. PERRY.

The answer, if good in other respects, is fatally defective Nov. Term,

1859. in setting up facts which at most could only bar 100 dollars, in bar of a much larger claim. The plea professes to answer the whole cause of action, but sets up facts that at most would bar only a part. Rose v. The North River Bank, 11 Ind. R. 268.- Conwell v. Finnell, id. 527.

The cause was tried by the Court, on the issues formed, and there was a finding and judgment for the plaintiff for 45 dollars, over a motion made by defendant for a new trial.

Two further errors are assigned, viz.: Overruling the motion for a new trial; and rendering judgment for the plaintiff for costs.

It appears by a bill of exceptions that there was a contract between the parties (which does not appear to have been in writing), by which the house rent mentioned in the complaint was to be at the rate of 30 dollars per an. num, and that the defendant should have "pasture for his cows and horses at a reasonable rate.” It is objected by the appellant that there could be no recovery under the complaint for the house rent and pasturage, because there was a special contract in reference to them, and the complaint is in general assumpsit. This objection is not well taken. For aught that appears, the agreement had been fully executed on the part of the plaintiff. The inference to be drawn from the statements in the bill of exceptions is, that the defendant had occupied the premises for the full time agreed upon, and had had the benefit of the pasturage stipulated for.

Indebitatus assumpsit will lie to recover the stipulated price due on a special contract not under seal, where the contract has been completely executed, so that only a duty to pay the money remains; and it is not necessary, in such case, to declare upon a special agreement.” Chit. on Pl., 10 Am. ed., 310, note 3, and authorities there cited. This rule has been recognized as applicable to pleadings under the code. Kerstetter v. Raymond, 10 Ind. R. 199.

It further appears by the evidence offered by the plaintiff, that the matters for which the suit was brought had been,

Vol. XIV.-3

1859.

BROWN

v.

Nov. Terin, by the agreement of the parties, submitted to arbitrators,

who had awarded to the plaintiff the sum of 45 dollars.

The appellant insists that the suit will not lie upon the PERRY. original causes of action, but that they are merged in the

award, upon which alone the suit should have been brought.

It is probable that had the arbitration and award been pleaded by the defendant, the plea would have defeated the action on the original cause, and compelled the plaintiff to count upon the award. But no such plea was filed, nor was any issue formed under which the defendant could avail himself of the defense. The arbitration and award constitute new matter which should have been pleaded specially. “All defenses, except the mere denial of the facts alleged by the plaintiff, shall be pleaded specially.” 2 R. S. p. 42, § 66.

The general denial filed in the case does not enable the defendant to avail himself of this defense. “Under a mere denial of any allegation, no evidence shall be introduced which does not tend to negative what the party making the allegation is bound to prove." Id., p. 45, § 91.

The circumstance that these facts appear by the evidence offered by the plaintiff, cannot alter the case. The evidence of the arbitration and award appears to have been entirely irrelevant to the issues, and cannot, we think, either benefit or prejudice either of the parties.

Leaving out of view any evidence as to the award, the finding is abundantly sustained by the evidence. The bill of exceptions shows that the defendant was indebted to the plaintiff in the sum of 20 dollars for money lent; and for the rent of the house, &c., and for pasture for cows and horses, in the sum of 25 dollars, "after deducting all of said defendants credits, offsets, payments, and counterclaims proven in the action,” making the whole amount due the plaintiff, after making the deductions mentioned, the sum of 45 dollars.

No point is made in the brief of counsel as to the judgment against the appellant for costs, therefore the error assigned in that respect, will not be further noticed.

We find no error in the proceedings requiring a reversal Nov. Term,

1859. of the judgment.

Per Curiam.—The judgment is affirmed with 10 per ent. HOWARD damages and costs.

R. Hill, for the appellant.
W. Singleton, for the appellee.

V. BURKE.

HOWARD v. Burke.

A bill of exceptions filed after term without leave, is no part of the record.

APPEAL from the Decatur Court of Common Pleas. Saturday,

January 14, WORDEN, J.-Action of repleven for twenty hogs, by 1860. the appellant against the appellee. Trial by jury and verdict for defendant. The plaintiff moved for a new trial, on the ground that the Court gave improper, and refused proper instructions to the jury. The motion was overruled and judgment entered on the verdict. The correctness of the instructions given and refused, presents the only question in the case.

The instructions refused, and those given, are not properly before us. They form, in this case, no part of the record. They are not made a part of the record in the manner provided for in § 324 of the code, nor are exceptions taken in the manner provided for in the following section. They do not indeed appear in the record at all. They are contained in a bill of exceptions which was filed in the vacation of the Court, after the term at which the proceedings were had. This bill of exceptions is entirely unavailing, and cannot be deemed a part of the record.

The statute provides that “time may be given to reduce the exception to writing, but not beyond the term, unless by special leave of the Court. 2 R. S. p. 115, § 343. Here no “special leave” to file the bill after the term, appears to have been obtained, and a bill filed after the term without

Nov. Term, such leave, cannot be deemed a part of the record of the 1859.

cause.Lawton v. Swihart, 10 Ind. R. 562.

Per Curiam.—The judgment is affirmed with costs.
THE STATE.

W. Cumback, for the appellant.
J. Garin and O. B. Hord, for the appellee.

KEELY

KEELY V. The State.

By our statute, larceny consists in the feloniously stealing and taking away

the personal goods of another. The general doctrine is, that the felonious
quality consists in an intent to defraud the owner for the use and benefit of
the thief; but there may be larceny without anticipated benefit to the thief.

The felonious intent must exist at the time of the taking.
An application for a new trial, in order to obtain evidence, based upon the fact

that the witness was a railroad hand, and the party did not know where to
send for him or his deposition, for the trial had, is within the case of Gibson
v. The State, 9 Ind. R. 264.

Saturday, January 31, 1860.

APPEAL from the Marion Court of Common Pleas.

Perkins, J.-Prosecution in the Common Pleas for larceny. Conviction, and sentence for two years to the state prison.

The evidence was substantially as follows:

On the night of the 19th of October, 1859, Keely the appellant, and Kerr and Radcliff, were at the house of one Josephine Hudson, in Indianapolis, a house of ill-fame of the worst character. Keely and Radcliff had drank to excess. Radclif, before the party proposed to leave the house, became dead drunk, so that he could not be aroused, and Keely and Kerr departed, leaving him lying senseless on the floor. About an hour afterwards Keely returned and again made an attempt to arouse Radcliff and take him away, but was still unable to accomplish his purpose. He then informed Josephine Hudson that he would take Radcliff's pocket-book and keep it till morning, when he would give it to him or his friends for him. Josephine objected, and tried to prevent Keely's taking the pocket-book.

V.

A long struggle ensued over the body of Radcliff, which Nov. Term, resulted in Keely obtaining the pocket-book, and in the

1859. partial awakening of Radcliff. Josephine then informed KEELY him that Keely had taken his money, but Keely denied it. The State. Loud talk followed; several other persons were in and about the house, among them two policemen, who were attracted to the disputing parties; Keely denied to them all that he had the pocket-book, and started for home. The policemen followed and overtook him; he told them he had the pocket-book, and gave it to them. They thereupon threw him into jail for larceny.

By our statute, larceny consists in the feloniously stealing and taking away the personal goods of another. 2 R. S. p. 403. The felonious quality consists in an intent to defraud the owner for the use and benefit of the thief. Such is the general doctrine; but there may be larceny without anticipated benefit to the thief. To constitute larceny under the statute, the felonious intent must exist at the time of the taking. 4 Wend. Blacks. 321, note.2 Wat. Archb. 366, 337, note.

The case of Norton v. The State, 4 Mo. R. 461, was decided upon a statute of that state making bailees, who fraudulently converted goods bailed, &c., guilty of larceny. See, also, as to the English embezzlement act, 1 Wend. Blacks. 428, note 16.

In the case at bar, it is difficult to discover in the evidence, proof of a felonious intent at the taking. It would rather seem that the intent was to prevent the property from being stolen, as, if not taken by a friend, it undoubtedly would have been by others. The only evidence tending to show a felonious intent, is the denial afterwards that he had the pocket-book. But it is not unreasonable to suppose that Keely well perceived that if the pocket-book was returned to Radcliff, or given to Josephine, or others about the house, it would hardly escape the fate of larceny before morning, and that his best way to secure it for Radcliff when he should become himself, and get out of bad company, would be to deny that he had the pocket-book and hurry home with it.

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