Robinson v. Murphy. EVIDENCE. ROBINSON V. MURPHY. Objection to.-Bill of Exceptions.-An exception to the admission of evidence cannot be made available where it is not shown by a bill of exceptions what the ground of objection was. SAME.-Covenant Against Incumbrances.-Breach of.-Taxes.-On the trial of can action for breach of the covenant against incumbrances in a warranty deed, to recover an amount which the grantee has been compelled to pay as taxes constituting a prior incumbrance, there must be proper evidence of the listing and appraisement of the property, and of the action of the proper authorities in fixing the rate of taxation, where it is not fixed by law. APPEAL from the Howard Circuit Court. DOWNEY, J.-This was an action by Murphy against Robinson for a breach of the covenant against incumbrances in a warranty deed. The alleged breach is, that at and prior to the date of the deed there were legal, valid, and subsisting liens against, and incumbrances upon, the real estate conveyed by the deed, the same then being subject to taxation, for state, county, township, and road purposes, including appropriation by the board of commissioners for the payment of bounties to volunteers for the United States army, and being also legally subject to taxation by the corporation of the city of Kokomo for the year 1865; that there was legally assessed and audited against said real estate for the year 1865, for state, county, road, township, and school purposes, including appropriation by the board of county commissioners for the payment of bounties to volunteers for the United States army, the sum of fifty dollars; and that there was also legally assessed and audited against said real estate a tax by the corporation of the city of Kokomo for the years 1864, and 1865, eight dollars, which amounts, with the interest, amounted, in March, 1868, to sixty dollars and forty cents; that the defendant had not paid said taxes; that the plaintiff was compelled to and did pay the same, to save the property from sale. A copy of the deed was made part of the complaint. There was a demurrer to this complaint, which, we think, Robinson v. Murphy. was correctly overruled. This disposes of the first error assigned. There were several paragraphs of the answer, but as all the matters which were well pleaded in the special paragraphs were admissible under the issue formed by the general denial, there is no question with reference to the answer which we need to consider. This disposes of the second alleged error. At the trial, the court permitted the plaintiff to prove, by parol, "that at the June term, 1865, of the board of commissioners, there was assessed and levied a tax against Robinson and another on the real estate in question, for the year 1865, for county purposes, and school, road, township, and special school, for said year, and also one dollar and eightyfive cents on the hundred dollars worth of property as a bounty tax for said year 1865; and that at the time of payment of said taxes they amounted to fifty-five dollars and twenty-five cents." The introduction of this evidence was objected to by Robinson, and we can easily imagine what might have been urged as an objection to it, but the bill of exceptions does not tell us what the objection was. If the objection was that the evidence was secondary, and it had been so stated to the court, the force of the objection might have been acknowledged, and the primary evidence produced. See 2 Davis' Ind. Digest, 485, sec. 108. The exception is not well taken. The next alleged error is, that the court erred in overruling the motion of the defendant for a new trial. The fourth reason assigned for a new trial was, that the finding of the court was not sustained by sufficient evidence. We think this position is well taken. There is a lack of evidence to show that the taxes were a valid and subsisting lien on the property, at the time of making the deed. There is no evidence of the listing and appraisement of the property, or, with the exception of the parol evidence above recited, any evidence of the action of the proper authori 33 484 0153 87 1153 231 Leobold v. The State. ties in fixing the amount or rate of taxation for county, township, road, and school purposes. It is urged by the attorney for the appellee that the law gives a lien from the first day of January in each year for all taxes due from the owner, &c. This is true; but how are we to measure the amount for which the lien is given? When the valuation of the property is shown, and the rate per cent. of the levy, the amount can then be determined. The rate of state tax is fixed by law, but we cannot from anything that is shown fix even the amount of that, for the value of the real estate is not shown. The judgment is reversed, with costs, and the cause remanded.. J. W. Robinson, for appellant. C. N. Pollard, for appellee. LEOBOLD V. THE STATE. OBTAINING MONEY BY FALSE PRETENSE.-Character of Pretense.-Query, whether a representation made by one that he is the owner of an extensive hat, cap, and fur establishment of the value of five thousand dollars, in a certain city in another state, is such a pretense as would induce a person of ordinary caution to loan the person making such representation the sum of ten dollars. SAME.-Indictment.-An indictment for obtaining money by false pretenses must allege to whom the money belonged. APPEAL from the Wayne Criminal Circuit Court. WORDEN, J.-This was an indictment against the appel lant for obtaining money by means of false pretenses. Motion to quash overruled, and exception. Trial, conviction, and judgment over respective motions for a new trial, and in arrest. The indictment, after the usual preliminary matter, Leobold v. The State. charges, "that Joseph Leobold, late of said county, at said county, on," &c., "did then and there unlawfully, feloniously, designedly, and with intent to defraud Franklin Newby, falsely pretend and represent to said Franklin Newby that he, the said Joseph Leobold, was then and at that time the owner of an extensive hat, cap, and fur establishment in the city of Dayton, in the State of Ohio, of great value, to wit, of the value of five thousand dollars, by means of which false pretenses and representations the said Joseph Leobold did then and there feloniously obtain from the said Franklin Newby the loan of ten dollars in money, with intent then and there feloniously to cheat and defraud him, the said Franklin Newby. Whereas, in truth and in fact, the said Joseph Leobold was not then and there the owner of a hat, cap, and fur establishment in said city of Dayton, contrary," &c. In the case of The State v. Magee, 11 Ind. 154, it was held, that the pretenses must be of some existing fact, made for the purpose of inducing the prosecutor to part with his property, and to which a person of ordinary caution would give credit. In the case before us the pretense was, to be sure, of an existing fact, and may have been made for the purpose of inducing Newby to part with his money under the belief that the defendant was pecuniarily responsible; but some of the members of the court are inclined to the opinion that it was not such a pretense as to obtain credence from a person of ordinary caution, to the extent of inducing him to part with money or property. This point, however, need not be determined, as there is another objection to the indictment which is fatal. No ownership of the money obtained is alleged in the indictment. This is essential, as has been heretofore determined by this court. The State v. Smith, 8 Blackf. 489. That it was money obtained in this case, instead of other property, can make no difference, that we can perceive, in respect to the necessity of an allegation of ownership. The case of Regina v. Norton, 8 C. & P. 196, cited in The State v. Smith, supra, was a Weston v. Lumley. case of the obtaining of money, in which it was held that an allegation of ownership was essential. The indictment was bad, and the motion to quash should have prevailed. The judgment below is reversed, and the cause remanded, with instructions to the court below to quash the indictment; and the clerk of this court is directed to make the proper order for the return of the prisoner. W. A. Peelle and H. C. Fox, for appellant. 33 486 134 584 33 486 143 302 33 488 148 8 33 486 164 456 WESTON V. LUMLEY. BILL OF EXCEPTIONS.-Motion to Strike Out.-Where a motion to strike out a paragraph of a pleading is overruled, the Supreme Court will not examine as to the correctness of the ruling, if an exception thereto be not saved by a bill of exceptions. SLANDER.-Pleading.-Code.-Under our code, a defendant in an action for libel or slander may, in one paragraph of his answer, deny the allegations of the complaint, and in another paragraph plead în confession and avoid ance. EVIDENCE.-Record.-Certificate.-A transcript of certain proceedings before a board of county commissioners was offered in evidence, the certificate of the auditor attached to which did not state that it was a full, true, and complete transcript of the record, but stated merely that it was "truly copied from the records," &c. Held, that the certificate was defective, and that the transcript was not ad- SAME.-Slander.-On the trial of an action for slander by A. against B, |