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Aylesworth and Others o. Brown and Another.


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by such observations of the judge. It is fair to assume that this was done, in the absence of any indications to the contrary; nor indeed do we feel at liberty to say that the unwarranted repetition of the same question to the witness, and compelling the court to act upon it, by persistence, upon objection being made, did not, in the present instance, relieve the remark of the court from just criticism.

It is assigned for error, that the court overruled a demurrer by the defendants separately to the complaint. This was before Meredith ceased to be a plaintiff in the cause. One defect in the complaint relied upon is, that it does not show what persons composed the firm of Barbee, Brown & Co., and how the right of action accrued to the plaintiffs as surviving partners. We understand that these facts are alleged. It is true that this is not done in the body of the complaint, where it more properly belonged, but in naming the parties plaintiffs. We cannot commend this method of stating facts, nor have we any disposition to encourage it. But it is sufficient under the code, though awkward.

The regular and formal method of practice would probably have required, after Meredith retired from the case as a plaintiff, and Thomas Barbee was allowed to become a plaintiff, that the complaint should have been amended by striking out the name of the former and inserting that of the latter. This formal amendment to the complaint was not made, unless the petition of Barbee to be admitted as a plaintiff be regarded as such amendment. It was signed by Barbee's attorneys and by the attorneys of the other plaintiffs, and after the court ordered that he be admitted as a plaintiff, he was treated as such in all the proceedings, including the final judgment, without objection. Nor, indeed, is any question as to his being actually a party plaintiff raised upon the record before us, except upon the theory that the order of the court permitting him to become such was void. We do not deem it void, or even erroneous, as has been already seen. Taking it that he was a plaintiff, then, as the parties regarded him, the complaint as it

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Aylesworth and Others v. Brown and Another.

stood showed no right of action in him. It is alleged, that the late firm of Barbee, Brown & Co., had been composed of three persons, of whom Thomas Barbee was not one. If the petition upon which Thomas Barbee was granted permission to appear as a plaintiff be regarded as itself an amendment of the complaint, it introduces the fact that Thomas Barbee was also a member of that firm. Can it be regarded here as such amendment? The majority of the court are clearly of opinion that it may be so regarded in this court, under the circumstances. With some hesitancy, I concur. This method, however, of amending a complaint is not commended, and if it appeared by the record that the defendants had in any manner sought below to take advantage of such informality specifically, possibly the question would be a more serious one for the appellees.

The remaining question in the case, and the only one in the whole record affecting its vital merits, arises upon a written instrument. Barbee, Brown & Co. held a judgment against Frederic Geiger and James Fallis for $6,115.63. Geiger paid one-half thereof, and thereupon the instrument was executed to him, and contains the following covenants by the judgment plaintiffs, viz: “that they (Barbee, Brown & Co.) will henceforth pursue the legal and equitable remedy on said judgment against said James Fallis alone, and not against said Frederic Geiger, looking to said Fallis alone for the full and final payment and satisfaction of said judgment, without, however, intending to prejudice or interfere with the rights and liabilities of said Fallis and Geiger to cach other on account of said judgment.” The inquiry is, whether this operated as a release of Fallis from liability upon the judgment.

The general proposition is familiar, that the release of one of several joint debtors is a release of all the others; and the appellant contends that that proposition is applicable in

this case.

This is not technically a release. By its terms it is merely a covenant not to pursue Geiger, and it is made clear by

The Jeffersonville, Madison, and Indianapolis R. R. Co. v. Avery.

its words, that it was not intended to release Fallis. It is only by implication and to avoid circuity of action that it would be construed to release Geiger. The cases seem to be uniform that such an instrument could not operate to release Fallis. The sole object which courts can have in the construction of instruments would be outraged by declaring this to be a release of both debtors. The law should not be subject to such a reproach. The cases upon the subject have been collected by Judge STORER in a valuable opinion in the Am. Law Register for May, 1869, vol. 8, p. 270, Bailey v. Berry. See, also, 1 Par. Con. (5th ed.) 28-9, and

notes; Chit. Con. (10th Am. ed.) 862–3.

Judgment affirmed, with costs.
J. Buchanan, for appellants.
11. M. Milford, for appellees.

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Co. v. AVERY.

CHANGE OF VENUE.Rule of Court.-A rule of the circuit court requiring an

application for a change of venue on account of local prejudice to be made at least one day before the day for which the cause is docketed for trial, is

reasonable and within the express power of such court to adopt. SAME.- Where it is clearly made to appear that some act performed within

the excluded time has excited such prejudice, or that such feeling already cxisting was undiscovered by reasonable effort, the case presents such special circumstances as to exclude the application of such rule intended for gen

eral convenience. RAILROAD.--Injury to Animals.-Fences.-- Where an animal was killed by the

cars of a railroad company at a point where the road was securely fenced to within ten feet, on one side of the track, and within twenty steps, on the other, of a public crossing, “but the fences did not extend to the cattleguard at the public crossing; if they did it would stop the cattle from going on the track;"

The Jeffersonville, Madison, and Indianapolis R. R. Co.v. Avery.

Held, that the company was not relieved from liability by the fact that the

road was securely fenced at the point where the animal was killed.

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APPEAL from the Clark Circuit Court.

RAY, J.-Suit commenced before a justice of the peace for an animal killed by the cars of appellant at a point on the road which was not securely fenced. Appeal to the circuit court. Affidavit and motion for a change of venue on account of local prejudice, made on the day the cause was docketed for trial. Motion overruled, on the ground that the application was not made in time under the 45th rule of the Clark Circuit Court, which required such applications to be made “at least one day before the day for which the cause is docketed.”

We held in Redman v. The State, 28 Ind. 205, a rule that such applications should not be made after the day the cause is docketed for trial, was a reasonable one, and within the power of the court to enforce. In this case the time is limited to one day less, but the appellant has not availed himself of even this limitation; for his application is made upon the very day the case is set for trial on the docket. In view of the fact that prejudice so general in a county as to prevent a party from securing a fair trial must result either from some special act, real or fancied, exciting the prejudice of the public, or from some long continued course of conduct which has created and developed such feeling in the community, and that a prejudice so general cannot be concealed in ordinary cases, and the known abuse to which the statute is liable, the inconvenience to the court, the suitors, and the attending witnesses, caused by the uncertainty which must otherwise exist in regard to the proceedings of each day, we are inclined to hold a rule which in its general application can deprive the parties of no right, as a reasonable regulation, “expediting the proceedings and decisions of causes,”—"diminishing costs and remedying imperfections that may be found to exist in the practice"-reasonable and within the express power of the court to adopt. 2 G. & H. 8.

The Jeffersonville, Madison, and Indianapolis R. R. Co. v. Avery.

There may be cases where the enforcement of such a role would be in conflict with the statute. When such a case is presented, effect must of course be given to the language of the law. Where it is clearly made to appear that some act performed within the excluded time has excited such prejudice, or that such feeling already existing was undiscovered by reasonable effort, the case will present such special circumstances as to exclude the application of a rule

a intended for general convenience. The statute authorizes a change of venue. It also requires the circuit court “to adopt rules for conducting the business therein, not repugnant to the laws of this state, and in everything relating to simplifying and expediting the proceedings and decisions of causes, diminishing costs, and remedying imperfections which may be found to exist in practice.”

When a circuit judge, acting under this requirement of the statute, has adopted general rules, it would be improper for us at the instance of a suitor in a special case to declare such rules “repugnant to the laws of this State” when such suitor has suffered no injury from their application in his case.

A prejudice existing against a railroad company, preventing a fair trial of the questions whether the road was or was not fenced at a particular point, and whether a horse was of a certain value, and where and by whom he was killed, might ordinarily be discovered before the day set for the trial. If there were special reasons why it could not be known in this case, the affidavit does not declare them.

We are indeed assured that the appellant suffered no injury in the present case from the enforcement of the rule, as the issues were submitted to the court for trial without the intervention of a jury from the prejudiced locality.

We regret that corporations are compelled so often to appeal to us for relief from findings which rest, not upon the evidence, but upon the prejudice of the jury. These real grievances render almost inexcusable the appeal where no actual wrong has resulted. This remark applies with equal force to the point presented upon the evidence.

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