Gordon v. Norman.

conferred upon said corporations. Previous to the passage of said act it had been repeatedly held that a consolidation, without the consent of the stockholder, released him, &c. McCray v. The Junction Railroad Company, 9 Ind. 358; Booe v. The Same, 10 Ind. 93.

The judgment is reversed, with costs. Cause remanded. J. Brownlee, for the appellants.

GORDON V. NORMAN.

PRACTICE IN SUPREME COURT.-Where there is evidence which tends to sustain the finding of the Court below, this Court will not reverse the judgment of that Court for alleged error in refusing a new trial on account of insufficiency of the evidence.

APPEAL from the Howard Circuit Court.

Per Curiam.-Action by the appellee, who was the plaintiff, against Gordon, upon a note for the payment of 800 dollars. The note bears date October 18th, 1857, and was payable on or before the 25th of December, 1859, to one Brittain Larue, who assigned it to the plaintiff. Defendant answered that the note was given to Larue for a part of the purchase money of a tract of land, which is described, and which was sold by him to the defendant. It is averred that Larue, at the time of the sale, represented to defendant that there was of cleared land upon the tract between forty-five and fifty acres; and defendant, relying upon the representation so made, and believing it to be true, was induced to and did purchase said land at the price and for the sum of 3,000 dollars; when in truth there were but thirty acres of cleared land

Wright et al. v. Macey et al.

on said tract when it was so purchased, which Larue, at the time of said sale, well knew. And defendant, in fact, says that, by reason of the false representation so made, he has been damaged 300 dollars, which he claims to have deducted from the amount due on the face of the note. Plaintiff replied by a denial. The Court tried the issues and found for the plaintiff the full amount of the note and interest, &c. New trial refused and judgment.

The only error upon which the appellant relies for a reversal is, that the finding is not sustained by the evidence. We are not inclined to reverse upon that ground; because, having looked into the evidence, which is to some extent conflicting, we find that there was evidence which tended to support the finding of the Court, and that being the case, it was for the Court, sitting as a jury, to reconcile the conflict, and having done so, we will not disturb its conclusions.

The judgment is affirmed, with costs and 3 per cent. damages.

N. R. Lindsay, for the appellant.

WRIGHT et al. v. MACEY et al.

REFEREES-PRACTICE.-Where a controversy pending in Court is referred, by order of the Court, to three referees, the parties may agree to receive a report from one or more of them.

APPEAL from the Marion Circuit Court.

HANNA, J.-This was a motion by Macey for leave to amend the report of referees.

It appears, by the record, that prior to the 14th of Novem

Wright et al. v. Macey et al.

ber, 1860, the parties had agreed to a reference of the matters in controversy in a suit, then pending in said Court, to three persons named. Two of them met, heard the evidence, and agreed upon the terms of a report. One of them had to go to Cincinnati, but it was agreed he should sign the report upon his return. These facts appear from affidavits and oral testimony heard on said motion. The report was filed, and judgment rendered thereon on the 14th of November aforesaid, with the signature of but one of said referees. In May, 1862, this motion was made and an order entered that the signature of the other referee should be affixed to said report then, and should operate as if made on said 14th of November, 1860.

It is argued that the powers of the referees ceased upon the return into Court of the report, and that therefore the action of the Court was erroneous.

The original order of the Court, directing the reference and report, is not in this record, and we can not therefore say whether the report was to be made at the first term after the reference or not; nor need we inquire in the right of the Court to permit the referee to affix his signature, for the reason that the only effect it could have, in favor of the party seeking to have it so affixed, was to render the report and judgment based thereon valid, in the event the Court had the right to make the order. We think it sufficiently appears that, without such signature, said report, &c., were valid. It is shown that it was filed by agreement of the attorneys of the parties with the one signature to it, and that judgment was entered therefor, so far as we are informed, without objection. Although three persons were by agreement of parties originally appointed in this case, yet, as only two of them appeared, it is shown that, by agreement of said parties, they took upon themselves the burden of the reference. When the report was made out, we suppose the parties could under the statute,

Cook's Adm'r v. Gibson.

(sec. 351, 2 R. S., page 117,) agree to a report from a still smaller number than two. That appears to have been done

here.

Per Curiam.-The judgment is affirmed, with costs.

B. K. Elliott, C. Hamlin and J. Cowgill, for the appellants. Wm. P. Fishback, for the appellees.

Cook's Adm'r v. GIBSON.

TRESPASS JURISDICTION.-The wrongful taking or detention of personal property is a trespass, in the general sense of the word, and, under § 15 of the justice's act, an action for such trespass, in the form of an action of replevin, may be brought, either in the township where the defendant resides, or where the trespass was committed, and process served throughout the county.

APPEAL from the Marion Common Pleas.

HANNA, J.-This suit was commenced before a justice of the peace for the recovery of the possession of personal property, to-wit: one horse, of the value of 50 dollars. The complaint contained an averment, "that said property is unlawfully detained by one William Gibson in said county, and as affiant is informed and believes in Warren township therein.” There was a written motion to dismiss, "for want of jurisdiction," which was overruled. In the Common Pleas the motion was renewed and sustained.

The appellee contends, here, that although it was averred in the complaint that the property was unlawfully taken and detained, yet the plaintiff was really seeking to recover the value thereof only, and therefore the dimissal was correct.

There is nothing in the record informing us whether the

Ross' Adm'r v. Kumler.

objection was to the jurisdiction of the justice over the person or the subject matter. The appellant argues as if the action of the Court had been influenced by a supposed want of jurisdiction of the subject matter. The inference from the argument of the appellee would seem to be that the Court was controlled by the idea that there was no jurisdiction of the person. As to the first, it has been settled by the case of Jocelyn v. Barrett, 18 Ind. 128; and as to the other, there is nothing in the record which would preclude the existence of the fact that the defendant was, perhaps, a resident of the township where the suit was brought, even if it was a case of assumpsit.

The question is not therefore necessarily before us, whether this is an action of that character, or whether advantage could be taken by motion of the supposed defect.

Per Curiam.-The judgment is reversed, with costs. Cause remanded.

Rand & Hall and Joseph T. Roberts, for the appellant.
Colerick & Jordan, for the appellee.

Ross' Adm'r v. KUMLER.

APPEAL from the Clinton Circuit Court.

Per Curiam.-The appellee, who was the plaintiff, brought an action against Henry Ross, John Ross and Pierson Ross, who were the defendants. The object of the suit was to subject certain real and personal property to the payment of a judgment in favor of the plaintiff and against Henry Ross, who, it is alleged, conveyed said property to John and Pierson Ross, with intent to defraud his creditors. The Court tried