Gandolpho v. The State. the stolen," &c. It would be difficult to frame any other form of averment that would more fully and directly express guilty knoweldge in the receipt of the stolen goods. The ruling of the court in refusing to require the prosecuting attorney to elect on which count of the indictment he would first put the appellant on trial, is also objected to. There was no error in the ruling. Keefer v. The State, 4 Ind. 246. It is evident from the face of the indictment that all the counts are based on the same larceny. It is claimed that the court erred in refusing to continue the cause on the appellant's motion based on an affidavit. The affidavit was not properly a part of the record, and could only be made so by a bill of exceptions, which was not done; and although the clerk has copied into the record a paper purporting to be an affidavit for a continuance, it is not properly there, and we cannot notice it as a basis of error. It is also insisted that the verdict of the jury is not sustained by the evidence. We cannot say so. The evidence shows that the woollen mills were broken open, and the goods described in the indictment stolen therefrom, on the night of the 31st of August, 1870. It also strongly tends to prove that the appellant was in the vicinity of the mills the evening of the larceny, in company with some of the other parties who had been convicted on an indictment for the larceny. Indeed, one witness, who was also accused of participating in the larceny, testified that the defendant went to the mills that night in company with the parties named; and if his evidence is to be credited it would clearly justify the defendant's conviction of the larceny. The evidence further shows that afterwards, on the 7th or 8th of September, the appellant and one of the other parties, who has since been convicted of the larceny, were in possession of a trunk containing a part of the stolen goods; the appellant claimed the trunk as his, and made a false statement in reference to what it contained. Under such a state of facts, we cannot say that the evidence did Wilson v. Poole. not justify the jury in finding the appellant guilty of receiving the goods, knowing them to have been stolen. The judgment is affirmed, with costs. J. Bundy, for appellant. D. E. Williamson, Attorney General, for the State. WILSON V. POOLE. ABATEMENT.-Practice.-Where an answer in abatement is not verified by affidavit, it seems that it would be proper to refuse to hear an objection to it on that ground after the jury has been sworn to try the cause. SAME.-Amendment.-Reswearing Jury.-Where a plea in abatement had been stricken out for want of verification by affidavit, after the jury had been sworn to try the cause, but before any further step had been taken; Held, that it was too late for the defendant to ask leave to supply the verification. Keld, also, that it was not necessary to reswear the jury to try the remaining issues. SAME.-Pleading.—Evidence.—Action to Quiet Title.-In an action to quiet title to real estate, matter in abatement cannot be given in evidence without having been specially pleaded. CONSTRUCTION OF WRITTEN INSTRUMENT.-Evidence.-A street contractor was permitted, over objection, to testify that his written bid to grade a certain street for one dollar a foot, which was in evidence, meant that he thereby proposed to do the work for fifty cents per front foot of the property on cach side of the street. Held, that this was error; but as the proper legal construction of the writing was the same as the construction given by the witness, the error was harmless. CITY.-Street Improvement.-Precept.-Affidavit.—A lot in a city was sold under a precept for the collection of an assessment for the improvement of a street by grading and graveling, issued upon an affidavit of the contractor stating that, under the estimate made by the city engineer, $83.84 was assessed against this lot, and that the owner, for the space of twenty days after the date of the estimate, had failed and refused, and still refused to pay the same, cxcept the sum of sixty dollars, which he had paid. The contractor's bid for making the improvement was one dollar per foot, and at that price it was contracted and the work was done. The front line of said lot was eighty-two and one-half feet long. Wilson v. Poole. Held, that no appeal from the precept was necessary, in order to raise the question of the authority of the council to issue it; but that it was absolutely void, and the city treasurer could not, under it, pass title by a sale of the property. APPEAL from the Fountain Circuit Court. Suit by the appellee against the appellant, the complaint alleging that the appellee is the owner in fee simple of a certain lot in the city of Attica, and entitled to the possession thereof, a deed of conveyance of which, with warranty, from Alonzo Chandler and Elizabeth Chandler to the appellee, dated March 16th, 1868, is made an exhibit of the complaint; and that the appellant claims title in fee simple to said real estate, adverse to the appellee. Prayer, that the appellee's title be quieted. The appellant answered in four paragraphs, first, the general denial; second, that the appellant is the owner of said lot in fee simple, and entitled to the possession thereof, and holds it by virtue of a deed of conveyance from the city of Attica, under a lien for street improvement that attached August 20th, 1866, a copy of which deed is filed with the answer; and the appellant prays that his title be quieted. No question arising under the third paragraph is discussed in the opinions. The fourth paragraph sets forth that there was another action pending in the same court between the same parties, involving the same issues. This paragraph was not sworn to. The appellee replied by the general denial. Trial by jury. After the jury had been sworn to try the cause, the fourth paragraph of the answer was stricken out on motion of the appellee, to which ruling the appellant excepted. The appellant then asked leave to supply the verification of the fourth paragraph, which the court refused, and the appellant excepted. Verdict for the appellee. A motion for a new trial was overruled, and the appellant excepted. Judgment was rendered on the verdict. FRAZER, J.-This case presents a number of questions of practice. Wilson v. Poole. 1. An answer in abatement was stricken out after the jury was sworn, because it was not verified by affidavit. Was this error? The appellant relies on Bradley v. The Bank, 20 Ind. 528. That case only decides that after a trial it is too late to object that the answer was not verified. We are not aware of any reported case involving the precise point before us, and the industry of counsel has not discovered any. It may happen in the hurry of business in the lower courts (though it should not), that the verification is forgotten by the pleader, and its absence overlooked by his antagonist. The law has no inclination to favor dilatory pleadings, for they do not go to the merits of the case. But it would be trifling to allow a party to speculate upon the result of a verdict, and, after it is found against him, interpose the objection that the answer was not verified. But when no step has been taken beyond swearing the jury, no great inconvenience can result, nor any injury to the opposite party, by allowing the objection to be made. He can at once interpose an application for leave to add the verification, and thus protect himself and save his answer. We are, however, of opinion that the better practice would be to refuse to hear the objection after the jury has been sworn; but inasmuch as the error, if any, was harmless, it is not available in this court. 2. After the answer in abatement had been stricken out, as above stated, the appellant asked leave to supply the verification, but was refused; and this is complained of. He was too late in this application, after the pleading had been stricken from the record. It was then out, and could not be brought back by an affidavit. 3. It is urged that there was error in not reswearing the jury after this pleading was stricken out. There is nothing in this. No single issue had been changed, and no new one had been formed. One issue, existing when the jury was sworn well and truly to try all the issues, had been stricken out, but the oath which had been taken embraced each of those which remained. Wilson v. Poole. The point is without even the slightest technical reason to support it. 4. The witness Hanna was allowed to testify, over the appellant's objection, as to what was meant by his bid in writing. This was error; but it was harmless, for the reason that the writing itself very plainly meant just what the witness swore that he intended by it, and was not, under the law, susceptible of any other construction, as we think. See 3 Stats. (Davis), 99 sec. 69. 5. The appellee was allowed to state as a witness the price which he had actually paid for the lot. This was error; for the appellant had not introduced any evidence whatever which tended to raise any question upon the subject. The tendency of this item of evidence would be to elicit the sympathies of the jury in behalf of the appellee; and so, unless it affirmatively appears that a right result was, beyond question, reached by the verdict, this will reverse the judgment. 6. The precept upon which the lot was sold for the unpaid assessment was issued upon an affidavit of the contrac tor stating that the work was done according to contract, and that, under the estimate made by the city engineer, eightythree dollars and eighty-four cents was assessed against this lot, and the owner, for the space of twenty days after the date of the estimate, had failed and refused, and still refused, to pay the same, except the sum of sixty dollars, which he had paid. The bid of the contractor for grading the street was one dollar per foot, and at that price it was contracted, and the work done. This would of course impose an assessment of only fifty cents per front foot upon the property upon each side of the street. The front of this lot was only eightytwo and one-half feet, and the sum for which it was liable could only be forty-one dollars and twenty-five cents, all of which, and nearly twenty dollars more, had been paid when the precept issued, as appeared by the affidavit. All this information was before the council when the precept was ordered, and by law they and the contractor as well must |