Larue v. Russell and Others. grant of the possession of Raccoon creek did not give a right to overflow the adjoining land, and that the subsequent language was intended as a limitation and restriction. of this possession, and not as an enlargement thereof. Under the grant, the appellant's grantors have erected a dam to the hight of seven feet, and the jury have permitted it to remain at that hight. Nothing more can be claimed under the language of the grant. The judgment is affirmed, with costs, and five per cent. damages. D. E. Williamson and A. Daggy, for appellants. J. E. McDonald, A. L. Roache and D. Sheeks, for appellee. 26 386 126 476 LARUE v. RUSSELL and Others. SEPARATION OF WITNESSES.-It is error for the court, under an order for the INSTRUCTION. On the trial below the court instructed the jury that if they APPEAL from the Franklin Circuit Court. FRAZER, J.-This was an action of trespass, quare clausum fregit. Answer, 1. General denial. 2. That the parties were joint tenants, and that the defendants entered the close by leave of the plaintiff. Reply, general denial. There was a jury trial at the August term, 1865, and a verdict for the Larue v. Russell and Others. defendants, and judgment on the verdict over a motion for a new trial. A bill of exceptions informs us that "the cause came on for trial upon the issues joined, whereupon the plaintiff offered divers witnesses to sustain his part of the issue, but before said witnesses were permitted to be examined, upon defendant's motion, the court ordered the plaintiff's witnesses to be separated, and required the plaintiff to go out of the court room and remain out until he was examined as a rebutting witness." This proceeding is probably without a precedent. The right of a party litigant to be present during the trial of his cause, that he may be heard in his own behalf, has been so long accorded by universal custom, and is so obviously necessary for the security of private rights, that the refusal to entertain the cause at all would scarcely be a greater error than the denial of this privilege. Besides, it is secured by plain and positive statute. 2 G. & H., § 765, p. 325. The court below also erred in instructions to the jury. A party peaceably in possession of lands may maintain trespass for an injury to his possession, though the trespasser have a better title to the lands. This principle was contravened. The court recapitulated certain facts in evidence, and informed the jury that if they believed those facts they must find for the defendants, excluding from consideration other evidence tending to explain and avoid the effect of the facts thus recapitulated. This also was error. The judgment is reversed, with costs, and the cause remanded for a new trial. W. Morrow, R. M. Goodwin and W. H. Hay, for appellant. A. C. Hanna, for appellees. Hull v. Green. HULL V. GREEN. PRACTICE. AMENDMENT.-Where a variance between the evidence and the pleadings would have been amendable in the court below, it will be deemed to have been amended in the Supreme Court. SAME. Where the whole evidence is not in the record, the Supreme Court will assume that such facts were in proof as will support the action of the court below, if such a state of facts was possible. APPEAL from the Noble Common Pleas. FRAZER, J.-This was a suit to recover upon a promise to pay money, the consideration of which was alleged to be the conveyance of certain real estate by the plaintiff to the defendant. The plaintiff had judgment, and the defendant appeals. It appeared in evidence that the consideration for the promise was the land, a quantity of wood, timber and rails, and thirty-one sheep. Was the variance fatal? It might have been cured by amendment below, and cannot, therefore, be available here. Warbritton v. Cameron, 10 Ind. 302. It appeared in evidence that the conveyance originally executed by the plaintiff to the defendant did not embrace about twelve acres of the land intended to be conveyed. The plaintiff thereupon, at the trial, at once executed a deed for the omitted lands, and was permitted to read it in evidence, the defendant objecting. This, it is claimed, was erroneous. The whole evidence is not in the record, and we must therefore presume that such facts were in proof as will support the action of the court below, if such facts are possible. If the twelve acres had been omitted from the conveyance by mistake of the draughtsman, and the purchaser entered into the possession and enjoyment of the whole, then his title was good in equity, and he could have compelled a correction of the deed. If the plaintiff had offered to make the correction before he sued for the purchase money, Burr v. Wilson. then there could be no doubt of the propriety of this evidence. Such evidence would not have been fatally variant from the complaint, would have been admissible under it, and the complaint might have been amended so as to avoid the variance. It follows that we cannot reverse the case upon this point. The judgment is affirmed, with costs. BURR v. WILSON. PROMISSORY NOTES.-FAILURE OF CONSIDERATION.-Suit upon a promissory note. Answer, that the consideration of the note had failed, in this, that said note was given for a part of the price of a grain warehouse, &c., purchased by defendant of plaintiff; that at the time of said sale plaintiff had an agency for another party to buy grain on commission at said warehouse, and by the terms of the sale was to transfer said agency to defendant, which he had failed to do, &c., and that if said agency had been transferred defendant could have made, during that grain season, $400, the amount of the note sued on. Held, that as the agency was for no determinate period, and depended upon the will of another, there was no method by which its value could be estimated, and hence the answer was bad. APPEAL from the Henry Common Pleas. RAY, J.-Complaint upon a promissory note executed by Wilson to the appellant and a third person, who transferred his interest by indorsement to the appellant. Answer in two paragraphs. The first admits the execution of the note, but alleges a failure of the consideration thereof, in that a purchase had been made by the appellee, Burr v. Wilson. for the sum of $700, from the persons to whom the note was made payable, of a lot of ground and a warehouse situated thereon, and sixty-eight wheat sacks, and also an agency for the purchase of wheat upon a commission of five cents per bushel, which agency was to be transferred to the appellee. The paragraph avers that $400 had been paid upon the execution of the deed for the real estate, and that the note in question was given for the residue of the price, but that the wheat sacks had not been delivered to the appellee, nor had the agency for the purchase of wheat been transferred, nor had any other agency been procured for the appellee. The value of the wheat sacks is alleged to have been $78, and it is claimed that if the agency for the purchase of wheat had been procured for the appellee, in fulfillment of the contract, that he would have realized the sum of $400 during that season. A demurrer filed to this paragraph of the answer was overruled. It is urged by the appellant that the damage for the failure to transfer the agency for the purchase of wheat cannot be estimated, and that therefore the paragraph, while attempting to answer the complaint in full, only in fact answers it as to part of the sum demanded. We think this objection is well taken. There is no averment in the answer that the agency was to continue for any fixed period. Its continuance was to depend upon the will of a person who was no party to the contract set out in the answer. The payees of the note would have complied with their contract had they procured the transfer of the agency to the appellee, even if the agency had been terminated, without any fraud on the part of the payees, immediately after such transfer. The continuance of the agency was a matter over which the payees of the note had no control, and about which, by the terms of their contract, they assumed no responsibility. There is no method by which the value of an agency thus uncertain in its duration can be determined. The second paragraph of the answer, to which a demurrer was also overruled, is subject to the same objection, |