Musselman v. The State.

is bad for a misjoinder of causes of action. It is enough to say that the demurrer was not for a misjoinder of causes of action, but, that the complaint did not state facts sufficient. The court below erred in sustaining the demurrer to the second paragraph of the complaint.

Judgment reversed, with costs; cause remanded, with directions to overrule the demurrer to the second paragraph of the complaint, and for further proceedings.

P. S. Kennedy, R. H. Galloway, and J. McCabe, for appellant.

J. M. Butler, for appellee.

MUSSELMAN v. THE STATE.

PRACTICE.-Appeal.—Criminal Law.—In a criminal case, the defendant may appeal, only when the judgment below is against him.

APPEAL from the Cass Common Pleas.

FRAZER, J.-This was an information against the appellant for barratry. The court, of its own motion, continued the cause until the next term, though the defendant objected and insisted upon his constitutional right to a speedy trial. At the next term, a nolle prosequi was entered, and he was discharged. He appeals to this court, merely, as it is said, to settle the question as to whether the court should have given him a trial at the first term. This interesting question cannot, however, be solved in this cause by this court, for the reason that it is beyond our reach. In a criminal case, a defendant may appeal, only when the judgment below is against him. 2 G. & H. 425, sec 148.

Appeal dismissed at appellant's costs.
P. H. Ward, for appellant.

Thompson v. The Honey Creek Draining Company.

THOMPSON V. THE HONEY CREEK DRAINING COMPANY.

DRAINING ASSOCIATION.-Suit on Assessment.—Pleading.—In a suit to enforce an assessment on lands under the ditching law, the exhibit annexed to the complaint, and referred to therein as the appraisers' schedule of assessment, consisted merely of a number of columns containing separately the name of the defendant, the description of each tract of land, the value per acre of each tract, and the total assessment on each tract, the columns being headed,"Name of Owner," "Description," &c., and the amount of the last column being placed at its foot.

Ield, that the exhibit was insufficient, and rendered the complaint bad on de

murrer.

APPEAL from the White Common Pleas.

This was a suit by the appellee against the appellant to enforce an assessment on lands of the defendant, under the ditching law.

It is alleged in the complaint, that the "appraisers made out a list of all lands affected, and assessed to each tract of land, separately, the amount of benefit or injury, and made out a schedule of the same, with the assessment on each tract of land therein described, separately; and that they did append thereto their affidavits, that the same was a true assessment in all respects, to the best of their judgment and belief; a copy of which schedule of assessment is filed herewith, marked 'D,' and made a part of this complaint."

The instrument annexed to the complaint and marked "D" consists merely of a number of columns containing separately the name of the appellant, the description of each tract of land, the value per acre of each tract, and the total assessment on each tract, the columns being headed, "Name of Owner," "Description," &c., and the amount of the last column being placed at its foot.

A demurrer to the complaint for want of sufficient facts was sustained, and the appellant excepted.

FRAZER, J.-The exhibit "D" annexed to the complaint is the instrument upon which the action was founded. It amounts to nothing, and is wholly insufficient. It is with

Blair and Others v. Vierling.

out signature or the affidavit which the statute imperatively requires to give it validity. Besides, it does not even purport to be what the complaint avers. The demurrer to the complaint should have been sustained.

Judgment accordingly, with costs.

R. W. Sill, S. A. Huff, and B. W. Langdon, for appellant. S. E. Perkins, O. F. Baker, and S. E. Perkins, Jr., for appellee.

BLAIR and Others v. VIERLING.

LIQUOR LAW.-License.-Change of Venue.-Appeal.-Where an appeal has been taken to the circuit court or court of common pleas from the decision of the board of county commissioners in a proceeding to obtain a license under the temperance act of 1859, resisted by remonstrance, a change of venue may be granted, as in other "civil actions." No appeal lies to the Supreme Court from the judgment of the court to which such change is taken.

APPEAL from the Daviess Circuit Court.

GREGORY, C. J.-The appeal in this case must be dismissed. In The State v. Vierling, at this term, ante, p. 99, it was held that the change of venue was properly granted from the Gibson to the Daviess Circuit Court.

This was a proceeding commenced before the commissioners of Gibson county, to obtain a license under the temperance act of 1859, to retail intoxicating liquors by a less quantity than a quart at a time. By the act of March 17th, 1861, the judgment of the circuit court, in such cases, is final, and without appeal therefrom. Acts 1861, p. 143, sec. 2.

Appeal dismissed, with costs.
FRAZER, J., was absent.

D. F. Embree, for appellants.

A. C. Donald and C. A. Buskirk, for appellee.

Schneider o. Rapp.

EVIDENCE.

SCHNEIDER V. RAPP.

Cross Examination. —Alteration of Written Instrument.-On the trial of an action on a promissory note given for a quantity of barley sold by the payee to the maker, where the question at issue was, whether the note was executed for the sum specified therein or was made for a sum one hundred dollars less and altered by the payee to the greater sum, the maker, called as a witness by the plaintiff, testified that the signature was his, but, over the plaintiff's objection, further testified that the note had been so altered by the payee after its execution; that the maker could not read English writing; that the note was written by the payee and by him read to the maker as for the smaller sum; whereupon, the payee on his own behalf testified that the sum of one hundred dollars was to be paid in cash on the barley; that when he was writing the note, the maker said he could not then pay the one hundred dollars, whereupon he wrote the note for the larger sum. On cross examination, the payee was asked, whether, when he wrote the note, and before it was signed, he stated to the maker that it was for the smaller sum, and whether he did not so read the note to the maker, which question being objected to as not proper cross examination, the court refused to permit it to be answered.

Held, that such refusal was error.

APPEAL from the Ripley Circuit Court.

Suit by Rapp against Schneider, who is the appellant in this court.

The complaint is in two paragraphs. The first is on a promissory note, alleged to have been executed by Schneider to Rapp, for two hundred and ninety-two dollars and seventy-four cents, dated April 15th, 1867, and due five months after date.

The second paragraph is also on a promissory note, executed by Schneider to Rapp for two hundred and ninetyseven dollars, dated April 15th, 1867, payable twenty days after date.

Schneider answered in two paragraphs. The first is to the first paragraph of the complaint, and is verified by affidavit. It alleges, that the note named in that paragraph was executed for the sum of one hundred and ninety-two dollars and seventy-four cents; that the plaintiff wrote the note and read it to the defendant for that sum; that since the execution and delivery of the note, the word "one" has been

Schneider v. Rapp.

altered and changed on the face of the note, thereby making it call for two hundred and ninety-two dollars and seventy-four cents, instead of one hundred and ninety-two dollars and seventy-four cents; and that the note is not the act and deed of the defendant, and he never executed the same.

The second paragraph is to both paragraphs of the complaint and alleges, that said notes were given in consideration of two hundred and eighty-seven bushels of barley, sold by the plaintiff to the defendant, to be used for brewing; that the plaintiff, at the time of said sale, warranted said barley to sprout, "fit to make good beer;" that the defendant subjected said barley to the proper process for sprouting, but that it did not and would not sprout; that it was old and unfit for brewing, and was wholly worthless; but that if it had been good barley and had sprouted, as warranted, it would have been worth five hundred and fifty dollars; and he claims damages in the sum of five hundred dollars.

Reply in two paragraphs, first, the general denial; second, that the notes were executed three weeks after the last lot of barley was delivered, and after the defendant had used a part of each lot sold; that the defendant, when he executed the notes, knew that said barley was damaged, and it was then agreed between the parties that the plaintiff should deduct from the price thereof the sum of fifty dollars, in full satisfaction of the damages for the injured condition of the barley, which he then did, and said notes were executed for the residue.

A trial of the issues, by a jury, resulted in a verdict for the plaintiff for the whole amount of both notes.

A motion for a new trial, made by the appellant, was overruled, and judgment was rendered on the verdict.

ELLIOTT, J.-The questions presented to this court upon the record before us arise upon the ruling of the court in overruling the appellant's motion for a new trial.

A bill of exceptions shows that on the trial of the cause