Topf and Another v. King. and the demurrers to both paragraphs should have been sustained. Upon the trial, the court instructed the jury that, "In estimating the value of the agency to buy wheat, they might ascertain the amount of wheat the defendant would have bought on commission from the time of the purchase of the agency up to the time the defendant commenced. business at that warehouse under another agency to buy wheat." Without attempting any careful criticism upon the instruction, it is sufficient ground for reversal that it fixes a time for the continuance of the agency, which is not authorized by the terms of the contract. The judgment is reversed, with costs, and the cause remanded for further proceedings in accordance with this opinion. T. B. Redding and J. H. Mellett, for appellant. TOPF and Another v. KING. APPEAL.-REVENUE STAMP.-No writ or process is required on appeal from a justice of the peace, and hence no stamp is necessary under the revenue law. PRACTICE. OBJECTION TO PROCESS.-When the defendant appears and answers, without objection to the sufficiency of the process, it is too late afterwards to object that the summons was not stamped. COSTS.-Where on a trial before a justice the defendant recovered judgment for $6, and on appeal the plaintiff had judgment for $30, Held, that the plaintiff was entitled to recover costs before the justice as well as on appeal. APPEAL from the Vanderburgh Common Pleas. ELLIOTT, J.-King sued the appellants on an account before a justice of the peace. The amount demanded exceeded Topf and Another v. King. $100. The defendants answered by a denial, set-off and counter-claim. Before the justice the defendants recovered a judgment for $6 01. King appealed to the Court of Common Pleas. In the latter court the defendants moved to dismiss the appeal because the papers on appeal were not stamped with a fifty cent revenue stamp, which motion the court overruled. There was no error in this. The act of congress requires that "writs or other process on appeals from justices' courts," &c., shall be stamped with a fifty cent stamp. In this State no writ or other process is required on an appeal from a justice of the peace; none was issued in this case, and hence no stamp was required. The defendant then moved to dismiss the action, for the reason that the original summons issued by the justice was not stamped with a fifty cent revenue stamp, which motion the court also overruled, to which the defendants excepted. The purpose of the summons was to notify the defendants of the pendency of the suit and to require them to appear thereto. They did appear and answered the action, without making any objection whatever to the summons, and it was too late to object to it afterwards. Whether the process was valid, or void for the want of a revenue stamp, was immaterial after the defendants had appeared, answered the action and gone to trial without objection. It is not, therefore, necessary that we should determine whether the summons was void for the want of a stamp, the amount claimed therein being more than $100. We think the court committed no error in refusing to dismiss the action. In the Common Pleas Court the plaintiff below recovered a judgment against the appellants for $29 75. The appellants then moved the court to tax the plaintiff with the costs before the justice, the appellants having recovered a judgment against him in that court, but the court overruled the motion and rendered judgment against the appellants for all the costs, both before the justice and in the Common Pleas Court. This was right. Section seventy of the justices' act provides that costs shall follow the judgment in the Paxton v. Dye. Court of Common Pleas, or Circuit Court," with two exceptions, which are stated in the section. 2 G. & H. 597. This case is not within either of the exceptions, and hence the costs follow the judgment. The appeal, in legal effect, abrogated the judgment before the justice, and the whole costs of the case should follow the judgment in the appellate court. The judgment is affirmed with costs, and ten per cent damages. P. Maier, for appellants. S. C. Stinson, for appellee. PAXTON V. DYE. WITNESS.-IMPEACHMENT OF.-A bill of exceptions stated that E, a witness who testified on the trial on behalf of the defendant, "having testified to certain facts relevant and pertinent to the issue," was asked on crossexamination, for the purpose of laying the foundation for his impeachment, “Did you say to F on, &c., at, &c., that the goods were sold and paid for in good faith?" to which the witness answered in the negative. F was then called and stated "that E had said that he was called to witness the sale, and that he was present and saw the whole settlement." The defendant then offered evidence to prove the good moral character of E. Held, that the evidence was not admissible. 1. Because there had been no impeachment, the testimony of F not being inconsistent with that of E. 2. Because it did not appear that the contradiction, if any, was concerning a material matter testified to by E in his examination in chief. APPEAL from the Wayne Common Pleas. 26 393 144 468 26 393 154 672 156 296 FRAZER, J.-Replevin. Answer, 1. General denial. 2. Property in one Fassett. 3. That one Fender sued out a writ of attachment against the property of Fassett, which Paxton v. Dye. was placed for service in the hands of the defendant, as sheriff, who by virtue thereof seized the property in question, it being the property of Fassett. Reply, general denial. The evidence is not in the record. The defendant appeals from a judgment rendered against him over a motion for a new trial. A bill of exceptions shows that the defendant called one Sell as a witness, who "having testified to certain facts relevant and pertinent to the issue," was asked on cross-examination by the plaintiff the following question, for the purpose of laying the foundation for his impeachment: "Did you say to D and G in Abington, a short time after this suit was brought, that you knew nothing about any fraud, that you had always understood that the goods were paid for and sold in good faith, and that you had never learned anything to the contrary, or anything of that kind?" to which he answered in the negative. D and G were afterwards called as witnesses for the plaintiff, and testified that they heard Sell say "that he was called to witness said sale; that the sale was made by Fassett to Dye, and that he, Sell, was present and saw the whole settlement." The defendant then offered to prove the good moral character of Sell, but the court excluded the evidence, and therein it is claimed that there was error. The proposition of the appellant, that when a witness has been impeached, either by general evidence or by particular questions, he may be supported by general evidence of good character, may be conceded, and the question in this case will then be, was the witness thus impeached? He was not contradicted by the impeaching witnesses. Their answers were not at all inconsistent with his, as it seems to us. There was therefore no impeachment. The attempt was a failure, and the rule already stated was not violated by the court, in its refusal to receive the evidence offered. But if the witness had been directly contradicted, it does not appear by the record that it was as to a matter concerning which he had testified in chief, and we understand that the contradiction, to amount to an impeachment, must be Patten v. Stewart. by statements of the witness inconsistent with material evidence given by him in the body of his testimony, and which statements he does not admit that he made. The judgment is affirmed, with costs. W. A. Bickle and W. A. Peele, for appellant. N. H. Johnson, J. B. Julian and J. F. Julian, for appellee. PATTEN v. Stewart. SHERIFF'S SALE -NOTICE.-Where after notice has been given of a sale of real estate on execution, the sale is enjoined, it is not proper to give oral notice of an adjournment to another day, and after the dissolution of the injunction to sell without a new publication. In such case the notice required by the statute must be given de novo. APPEAL from the Vigo Circuit Court. FRAZER, J.-Ejectment. There was a special verdict, finding, amongst other things, that the plaintiff had become the purchaser of the lands at sheriff's sale, under a decree of foreclosure in his favor against the defendant, that public notice that the sheriff's sale would take place at &c., on the 13th of February, 1864, was given by the sheriff for three weeks in a newspaper of general circulation in the county, and by posting notices in three places in the township where the lands were situated; that on the day thus appointed for the sale, it was forbidden by injunction until February 17; that the sheriff, at the instance of Stewart, the plaintiff, without offering the property for sale, adjourned the sale until July 18, giving no notice thereof except by ringing the court house bell, and stating the adjournment; that on the 17th the injunction was continued in force until the 20th, and on the 18th a similar adjournment of the sale |