Anderson v. Meeker.

by them during the summer and fall of 1865; that they failed to deliver the logs, whereby he was damaged, &c. The general denial was pleaded.

As to the measure of damages, the court told the jury, that if the plaintiff had made out his case, he was "entitled to recover the amount of profits he has proven he would have made on the sawing of the unfurnished logs if they had been furnished."

This is not, we think, the rule of damages which the law provides in such cases; there being evidence that he need not have allowed his mill to remain idle, other employment having been offered. It would give more than compensatory damages, and the case was not of a nature to warrant this. So the jury were afterwards told in another instruction.

The court erred also in refusing the third, fourth, sixth, and seventh instructions asked by the appellants.

Judgment reversed, with costs; and cause remanded for a new trial.

J. N. Sims, H. Y. Morrison, and T. H. Palmer, for appellants.

J. Claybaugh and L. McClurg, for appellee.

ANDERSON v. MEEKER.

PLEADING. Consideration.-Suit on a note against the maker. Answer, that the defendant received no consideration for the note.

Held, that the answer was bad on demurrer.

APPEAL from the Fountain Common Pleas.

RAY, J.-Suit on note against the appellant. A paragraph of answer was filed, which alleged, "that defendant received no consideration for said note." A demurrer was

Schlict v. The State.

sustained to this paragraph, and the ruling thereon presents the only question for our consideration.

The issue tendered by the paragraph was personal. If the note, which was executed by appellant, had a consideration to support it, that was sufficient, whether received by the appellant or some one else with his consent.

The judgment is affirmed, with costs.

M. M. Milford, for appellant.
J. Buchanan, for appellee.

SCHLICT V. THE STATE.

LIQUOR LAW.-Sunday.-Section 8 of the act to regulate the license and sale of intoxicating liquors, &c., (1 G. & H. 616) as amended in 1865 (Spec. Sess. 197), prohibits the sale on Sunday of any quantity of intoxicating liquor by a licensed retailer, and is not in conflict with the Constitution of the State.

SAME.-Evidence.-On the trial of an information under this section, charging, that the defendant was licensed under said act to sell intoxicating liquors in a less quantity than a quart at a time, it appeared in evidence that the defendant, at the time of the sale charged (the fall of 1867), was engaged in the sale of intoxicating liquors by the "small;" and there were given in evidence two orders of the board of county commissioners, one made at the December term, 1866, and the other at the December term, 1867, granting license to the defendant to sell intoxicating liquors by retail.

Held, that this evidence did not show that the defendant was licensed, and was not sufficient to justify a finding against him.

APPEAL from the Ripley Common Pleas.

ELLIOTT, C. J.-Schlict, the appellant, was tried on an information for selling intoxicating liquors on Sunday, found guilty, and fined forty dollars and costs.

The information was based on the 8th section of the act to license and regulate the sale of intoxicating liquors, &c., as amended in 1865 (Acts Spec. Sess. p. 197), and alleged, that the appellant was licensed under said act "to sell intox

Schlict v. The State.

icating liquors in a less quantity than a quart at a time." A motion for a new trial was made, urging several reasons therefor, one of which was, that the finding of the court was contrary to the evidence. The motion was overruled, and that ruling assigned for error.

The evidence is before us, and the first objection urged to its sufficiency is, that it does not show that the quantity of liquor sold was less than a quart at a time. The objection is not well taken; the statute prohibits the sale, by licensed retailers, of any quantity of intoxicating liquor on Sunday.

It is also insisted, that the evidence does not show that the appellant was licensed to retail intoxicating liquors, at the time of the sale charged in the information.

The prosecuting witness testified, that at the time of the sale charged in the information, being in the fall of 1867, the appellant "was engaged in the sale of intoxicating liquors by the small." The attorney for the State also gave in evidence two orders of the board of county commissioners of Ripley county, one made at the December term, 1866, and the other at the December term, 1867, granting license to the appellant to sell intoxicating liquors by retail. This was all the evidence tending to prove that the appellant was licensed. We think it was not sufficient to justify the finding. After the grant of license by the board of commissioners, the statute requires the applicant to execute a bond in the sum of five hundred dollars and pay to the county treasurer the sum of fifty dollars, and provides that upon the execution of the bond "and the presentation of the order of the board of commissioners granting him license, and the county treasurer's receipt for the fees, as aforesaid, the county auditor shall issue a license to the applicant," &c. It is the license so issued, and not the order of the board granting a license, that authorizes the applicant to sell by retail. A license may be authorized by the board and yet not be taken out; and hence the order of such grant does not, of itself, prove that a license was issued.

Green v. Ayers.

The court therefore erred in overruling the motion for a new trial.

The objections urged to the validity of the statute under which the prosecution was had, as being in conflict with the Constitution of the State, are without foundation.

For the error stated above, the judgment is reversed, and the cause remanded for a new trial.

E. P. Ferris, for appellant.

H. M. Spalding and D. E. Williamson, Attorney General, for the State.

GREEN V. AYERS.

APPEAL.-Vacation of Highway.-Where, in a proceeding to vacate a highway on the ground that the same is not of public utility, viewers are appointed who report in favor of the petition on the ground stated therein, and, upon objection being made to the vacation, other viewers are appointed, who report against the public utility of the vacation, no appeal lies to the circuit court from the decision of the board of county commissioners overruling a motion, made by one of the petitioners, to set aside the appointment of such other viewers.

APPEAL from the Hendricks Circuit Court.

RAY, J.-Appellant and others filed their petition before the board of commissioners for the county of Hendricks, to have a certain highway vacated, on the ground that the same was not of public utility. Viewers were appointed, who reported in favor of the petition upon the ground stated. The appellee objected to the vacation of the road, and other viewers were thereupon appointed, who reported that it would not be a matter of public utility to have the highway declared vacant. Thereupon the appellant moved the court to set aside the appointment of the last set of

Hubble v. Osborn.

viewers, and, upon the overruling of his motion, appealed to the circuit court, where his appeal was dismissed.

This ruling was correct. There was no decision of the board of county commissioners which in any way determined the petition of the appellant. What they would have decided, we cannot anticipate.

The judgment of the circuit court in dismissing the appeal is affirmed, with costs.

C. C. Nave, for appellant.

C. Foley and L. M. Campbell,.for appellee.

HUBBLE v. OSBORN.

EVIDENCE.-Number of Witnesses.—A party cannot lawfully be limited by the court to one witness upon a vital point in issue.

SAME.-Resulting Trust.-Suit by A. against B. and C. for possession of certain real estate purchased by the plaintiff at sheriff's sale on an execution in favor of the plaintiff issued upon a judgment against B., the legal title at the time of such sale standing in the name of C., to whom it had been conveyed by D. The plaintiff claimed, that B. had paid the purchase-money, and, to defraud his creditors, particularly the plaintiff, to whom he was then largely indebted, procured the conveyance to be made by D. to C. It was claimed in defense, that in making the purchase B. acted as the authorized agent of C., who was not present, and that B. advanced the purchase-money in pursuance of an agreement with C. by which he was to so advance it as a short loan to C., who soon afterwards repaid the money. On the trial, B. testified to this effect, and C. testified to the same facts, except as to the fact of the loan, concerning which the court refused to allow him to testify.

Held, that this refusal was error.

RESULTING TRUST.-Fraud.-Presumption.-In such suit the court instructed the jury, that if B. was indebted to plaintiff in a large sum at the date of the deed from D. to C., and B. contracted for and paid for said land out of his own moneys, and had the same conveyed by deed to C., "such conveyance is presumed fraudulent as against the plaintiff, and a trust results in