Cox v. Hutchings. Hutchings sued Cox for 431 dollars, which he alleged the latter owed him for money and services expended and performed by the former, (Hutchings,) in purchasing hogs for the latter, (Cox.) Cox answered, the general denial, and a special denial, that Hutchings purchased the hogs in question for himself, not for Cox, the defendant. The cause was tried after the act making parties competent witnesses came into force. Hutchings was a witness and simply swore to the truth of his complaint, simply swore to his cause of action which had been put in issue by the answer. How the defendant could be surprised, in a legal sense, by the testimony of a party to his cause of action, on which a direct issue, and the only issue in the cause had been formed, is not easily perceived. Cox does not say, in his complaint in this case, whether he swore to the contrary of Hutchings on the trial or not. See the cases as to surprise cited in 2 G. & H. p. 212, notes 3 b, c, d. As to the second ground, newly discovered evidence, the complaint is fatally defective, for the reason that the evidence given upon the trial had is not shown. It is a settled general proposition that a new trial will not be granted on account of newly discovered evidence where such evidence is merely cumulative, or where it might not change the result on a new trial. To enable the appellate Court, therefore, to determine whether the Court below rightly denied a new trial-(the Court that heard the evidence) that evidence must appear in the record. 2 G. & H. p. 213, note 1. If the application for a new trial is made by motion in term time, to the Court that tried the cause, the evidence, on taking an appeal, is put in the record by bill of exceptions. Walpole v. Atkinson, 18 Ind. 434. If the application is made afterwards by complaint, perhaps to a Court that did not hear the original trial, the evidence must, at Howard v. Barbee et al. least, according to averment, appear in the complaint, and again before the Court, on the trial, and again in a bill of exceptions after the trial, should there be an appeal to an appellate Court from the judgment upon the trial of the merits. Stanley v. Peoples, 13 Ind. 233; McKee v. McDonald, 17 Ind. 518: Crawford v. Martin, 10 Ind. 370; Glidewell v. Daggy, at this term. 2. Whether the complaint for a new trial should necessarily be verified, is not clear from the authorities. It was so held in McDaniel v. Graves, 12 Ind. 465; but doubted in Allen v. Gillum, 16 id. 234, though without noticing the previous case. We think the complaint should be sworn to. The oath may be some check on groundless applications; but if the objection is not taken of want of verification till after the trial it will be waived. Per Curiam.-The judgment must be affirmed, with costs. HOWARD v. BARBEE et al. The act of March 17, 1861, (see acts 1861, p. 49,) is construed to require the party, to whom a change of venue is granted, to perfect the same within the time therein limited, and to pay all costs of such change, if perfected, and to pay all costs up to the time when it should have been perfected, if it is not; but, in any event, such change must be perfected within a reasonable time after the order, or the right thereto will be deemed to have been waived, and the cause will remain upon the docket as if no change had been granted. Howard v. Barbee et al. APPEAL from the Tippecanoe Common Pleas. HANNA, J.-The only point urged in this case, is, that the Court had no jurisdiction to try it. The suit was pending at the June term, 1862, of said Court, at which term a change of venue was granted to the countyof Carroll, because of alleged odium attaching to the person and defence of the defendant, and the Clerk was ordered to transmit the papers upon payment of costs, &c. At the next (December) term of said Court, the plaintiffs' attorney filed a written statement, reciting the said order, &c., and alleging, that, in September and October, a term of the Carroll Common Pleas had been held, at which said case could have been tried, if the change had been perfected, but that the same had not been done by said defendant, and asking that the case might be docketed, &c. An affidavit was filed by the defendant, resisting said motion, in which he stated, that ten days before the said December term, and several times afterwards, he had applied to pay the costs and perfect said change, but the Clerk would not receive said costs, nor transmit the papers, &c., and he was then ready to perfect the same, &c. The Court ordered the case docketed, and that it stand for trial at said term, &c. It will be seen, that near six months intervened between the order to change the venue and this order to re-docket the case. The paper filed by the plaintiff also alleges the fact, (of which we would take judicial notice,) that, in the meantime, a term of the Carroll Common Pleas had passed. These facts bring the case within the decision of Rogers v. Stevens, 8 Ind. 465, which is decisive of this, unless a different rule should result from the enactment of the statute of 1861, (sess. acts 1861, p. 49,) which provides, that, in changes granted for the cause herein alleged, the "Clerk shall forthwith transmit the papers, and a transcript of the proceedings, to the Clerk of Howard v. Barbee et al. the Court to which the venue is changed, the party applying for a change first paying the costs thereof, *** and the action shall stand for trial at the first term, *** and if a party, applying for a change of venue, shall fail to perfect the same ten days before the first day of the next term of the Court to which the change is taken, *** said party shall pay all the costs made in the case up to the time of such failure." The Court did not fix the time within which the change should be perfected. What is the effect of this statute? Does it authorize the transmission of the papers upon the application of the party seeking the change, notwithstanding his neglect to perfect the same, as therein directed, provided he will pay all the costs that have arisen up to the time of such failure? The law existing previous to the passage of the act now under consideration, provided, that the person obtaining the change should pay the costs occasioned thereby before the papers were transmitted, and, until that was done, the change could not be considered as perfected; and, in the case before cited, it was decided by this Court, that a delay for an unreasonable time to perfect the change, after an order had been granted, would be treated as a waiver of the right to it under the order. In that case, although the papers were filed with the Clerk of the Court to which the change was granted by the first day of the term, yet, as it was not done in time for a trial at that term, and considerable time had intervened, it was held that the delay had been unreasonable, and the right to take the change under the order had closed. This statute was amended, as above shown, in view of said decision, and perhaps in view of, and to remedy a practice, which had to some extent prevailed, of obtaining an order for a change, which would operate as a continuance, and then failing to perfect the same; or perfecting it at so late a date, although within a reasonable time, as to prevent a trial at the Smith et al. v. Wiley et al. first term after obtaining the change. We think it was the purpose of this act to compel the person, who should thus delay a trial, to pay costs, and, by this means, prevent more delay. But we do not believe it was the intention to give the right to a change, after a reasonable time had elapsed, to perfect it after the order had been made. Per Curiam.-The judgment is affirmed, with 2 per cent. damages and costs. McDonald & Roache, for the appellant. SMITH et al. v. WILEY et al. LIMITATIONS.-Where infant wards, soon after the appointment of their guardians, remove from this State, and continue to reside abroad, the statute of limitations does not run against them until they return. 2 G. & H. 161, § 216. APPEAL from the Switzerland Circuit Court. HANNA, J.-The appellants were, in 1834, the wards of Wiley, who was their guardian, and as such applied, in November of that year, to the proper Court, for leave to sell the real estate of his said wards, that the proceeds might be vested in other lands. It is averred that the Court ordered the sale of said lands, and appointed one Kelso a commissioner to make said sale; that he sold, without giving notice to said guardian, and in 1836 reported said sale, and that he had paid the amount of money and notes to said guardian; and that the sale was not confirmed, nor any one appointed to make a deed; but that in 1839 a deed reported by said Kelso, who |