Ryors et al. v. King. the indorsement of the note he acquired the legal title. Nothing is better settled than that a mere equity can not prevail against the legal title. Equities being equal, the law must prevail. Judson v. Corcoran, supra. The effect of the decision in the present case is, that the assignee, by indorsement of a promissory note, takes it subject to the latent equities in favor of a third person, of which he had no notice. I do not believe it is the law. I think the legislature has gone far enough when it provided that the assignee shall take subject to a set-off and defence in favor of the maker against the original payee or assignor. I do not believe we have the power to impose additional burdens to those fixed by the legislature. The most of the cases cited in the opinion of the majority of the court relate to the sale of personal property and the equitable assignment of choses in action. In my opinion, the judgment of the court below should, for the reasons stated, be reversed, with directions to render judgment in favor of the appellant upon the special findings of the jury. RYORS ET AL. v. KING. PRACTICE. Judgment by Consent.-Appearance by Attorney.-Where a judgment purports to have been rendered by agreement of the parties, made by their counsel, and without service of summons, the defendant can not, on appeal to the Supreme Court, question the authority of counsel to appear for him, without having first sought relief in the court below. From the Monroe Common Pleas. P. C. Dunning and A. Ryors, for appellants. DOWNEY, J.-In this case the transcript of the record shows the filing of a complaint upon a promissory note, by the appellee against the appellants, on the 22d day of March, 1872. There is in the transcript the following: Ryors et al. v. King. "We, Alfred Ryors and James W. Cookerly, the within named defendants, hereby enter our appearance to the within action, hereby waiving the issuing of process and the service of process, and hereby enter our appearance to said action, as we might or could if duly served with due process of law, this 22d day of March, 1872." Signed by the defendants. Afterward, on the 8th day of April, 1872, being the seventh judicial day of the term of the court, this order was made: "Come now the parties by their counsel, and by agreement of parties, judgment is to be rendered in this cause, in favor of the plaintiff and against the defendants, for the sum of three hundred and ten dollars and fifty cents. It is therefore considered by the court that the plaintiff, David H. King, recover of the defendants, Alfred Ryors and James W. Cookerly, the sum of three hundred and ten dollars and fifty cents, the amount agreed upon by the parties herein, as also his costs and charges herein laid out and expended, assessed at — dollars, all collectible without valuation or appraisement laws." The following errors are assigned in this court: 1. The court erred in taking cognizance of said cause, no summons having been issued, etc. 2. In assuming jurisdiction of the cause, the record showing that no such action had been legally commenced. 3. In rendering judgment in the cause, there being at the time no action in said court between the appellants and the appellee. 4. Because the record does not show said judgment to have been rendered by the agreement of the parties, through their counsel, and fails to show who appellants' counsel were, or that said counsel were properly and legally authorized to make such agreement, or appear in said cause on appellants' behalf, as required by the law of this State. According to the former decisions of this court, the objection urged against the judgment can not be originally made in this court, but should be first presented to the court in which the judgment was rendered; and an appeal taken to this Fisher v. Hamilton. court, without having first moved in the matter before the court where the judgment was rendered, has been dismissed. Jarrett v. Andrews, 19 Ind. 403; Dougherty v. Andrews, 19 Ind. 406. Following these authorities we must dismiss the appeal. The appeal is dismissed, with costs. FISHER V. HAMILTON. PRACTICE.-Demurrer.-Harmless Error.-A defendant can not be harmed by sustaining a demurrer to a paragraph of his answer, where the evidence admissible thereunder is admissible under a remaining paragraph of the answer. SAME. The delivery of a promissory note being an essential part of its execution, in an action on a note, the sustaining of a demurrer to a paragraph of answer denying its delivery can not harm the defendant where there remains a paragraph of general denial of the execution of the note sworn to. MOTION FOR NEW TRIAL.-"Error of law occurring at the trial," is too general and indefinite as a statement of a cause in a motion for a new trial From the Shelby Common Pleas. E. II. Davis and C. Wright, for appellant. G. H. Voss, B. F. Davis, and J. A. Holman, for appellee. DOWNEY, J.-There are three errors properly assigned in this case: 1. Sustaining the demurrer of the plaintiff to the first paragraph of the answer of the defendant. 2. Sustaining the demurrer of the plaintiff to the second paragraph of the answer. 3. Refusing to grant the defendant a new trial. The action was by the appellee against the appellant, and was upon a promissory note made by the defendant to the plaintiff, on the 9th day of September, 1867, for four hundred Fisher v. Hamilton. dollars, at six months, payable at the banking house of the plaintiff, in Shelbyville, Indiana. The averments in the first and second paragraphs of the answer of the defendant amount to a denial of the delivery of the note by the defendant. The fourth paragraph of the answer was a general denial of the execution of the note, sworn to by the defendant. As the question relating to the delivery of the note, which was an essential part of the act of execution, was fully involved in the issue on the fourth paragraph, the sustaining of the demurrers to the first and second paragraphs could not have harmed the defendant, and can not be a cause for reversing the judgment. Authorities on this point are not deemed necessary. If there is any question as to the effect of the first and second paragraphs of the answer, and if it should be claimed that they are answers of want of consideration, still, as the third paragraph of the answer was a paragraph alleging in general terms a want of consideration, the same rule would apply. A trial by jury having terminated in a verdict for the plaintiff for three hundred and fifty dollars. the defendant moved for a new trial for these reasons: 1. The verdict is not sustained by sufficient evidence. 2. It is contrary to law. 3. Error of law occurring at the trial. 4. Error in the assessment of the amount of the recovery, the same being too large. The overruling of this motion, which is the third error assigned, is the only remaining question for consideration. We can not, in view of the evidence given, disturb the judgment for lack of evidence to sustain the verdict. Nothing is urged under the second cause for a new trial. Counsel argue questions concerning the rejection of evidence offered by the defendant, and also concerning the instructions of the court, but these were not mentioned in the motion as causes for a new trial, and can not, therefore, be considered by us. The third reason stated, that is, "error of law occurring at the trial," is entirely too general and indefinite to enable us The Fort Wayne, etc., R. R. Co. v. McDonald. to consider any question under it. There is no ground, that we can see, for the statement that the damages were excessive, and this ground is not urged in the brief of counsel for appellant. The judgment is affirmed, with costs. THE FORT WAYNE, JACKSON, AND SAGINAW RAILROAD Co. v. McDonald. CONTRACT.-Pleading.—A complaint in the general form for work and labor done is not demurrable because it sets out the manner of the employment and the character of the work done with unnecessary particularity, when the facts stated do not show a special contract, or increase the liability of the defendant beyond such general employment. ASSIGNMENT OF ERRORS.-To enable the Supreme Court to review questions of evidence, the overruling of a motion for a new trial must be assigned as error. From the Allen Common Pleas. J. Morris and W. H. Withers, for appellant. S. E. Sinclair, W. G. Colerick, and H. Colerick, for appellee. BIDDLE, J.-Suit by the appellee against the appellant. The complaint contains two paragraphs. The first paragraph is for work done on the appellant's line of railroad, specially stated; the second paragraph is for work done, money paid, and money had generally. Separate demurrers to each count were filed and overruled, and exceptions taken. Answer: 1. General denial. 2. Payment. 3. Payment by a third person. 4. That the liability to the appellee, if any, was not due VOL. XLVIII.-16 |