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Ex Parte Tongate.

Ex PARTE TONGATE.

Criminal Law.—Term of Imprisonment.—Where a defendant was sentenced

to an imprisonment in the county jail for ninety days, and until a fine of

one dollar and the costs of the prosecution were paid or replevied; Held, that when the imprisonment for the ninety days had been completed,

that portion alone of the sentence was discharged, and there remained the imprisonment for the fine and costs—that the defendant was not entitled to a credit of fifty cents per day upon the fine and costs from the date when his imprisonment commenced.

APPEAL from the Orange Common Pleas.

Ray, J.–Tongate was sentenced to an imprisonment in the county jail for ninety days, and until a fine of one dolilar and the costs of the prosecution were paid or replevied. At the expiration of the ninety days he applied for a discharge, on the ground that under section 130, 2 G. & II. 421, he was entitled to a credit of fifty cents per day upon the fine and costs from the date when his imprisonment commenced. This application was refused. The ruling was correct. The imprisonment for ninety days was only a part of the sentence, and must be completed before the other portion of the same sentence could begin. It is not like two penalties, imposed for two separate offenses, where both are held to run together. Miller v. Allen, 11 Ind. 389. In this case, when the imprisonment for the ninety days had been completed, that portion of the sentence alone was discharged, and there remained the imprisonment for the fine and costs.

Judgment affirmed, with costs.
H. Heffren, for appellant.

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The Fishback and Elizabethtown Gravel Road Co. v. Wilson.

THE FISHBACK AND ELIZABETHTOWN GRAVEL ROAD COMPANY

v. WILSON.

PRACTICE.--- Finding Beyond the Issue.- Motion for Judgment on Finding.-On

the trial in the circuit court of an action commenced before a justice of thc
peace, to recover upon a stock subscription, the execution of the instrument
not being denied by the defendant under oath, the court found specially for
the plaintiff every point in issue, so that judgment could have been ren-
dered for the instalment sued for, but found further, that after the defend-
ant had exccuted the instrument it had been altered in a material part,
without his knowledge or authority, and, over a motion by the plaintiff for

a new trial, rendered judgment, without further objection, for the defendant. Held, that the motion for a new trial did not raise any question; but a motion

for judgment on the finding should have been made in order to present the

question involved to the circuit court. Held, also, that the question could not be made for the first time in the Su

preme Court.

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APPEAL from the Hendricks Circuit Court.

FRAZER, J.-This suit originated before a justice of the peace. It was to recover calls upon a written subscription for stock of the appellant. The execution of the instrument was not denied under oath, as is made necessary by statute to put that matter in issue. 2 G. & H. 585, sec. 34. A jury was waived, and the court found specially for the appellant every point in issue, so that judgment could have been rendered for the instalments sued for. But the find. ing went beyond the issue, declaring that after the appellee had executed the instrument it had, without his knowledge or authority, been altered in a material part. A motion for a new trial by the appellant upon two grounds, first, that the finding was against the evidence; second, that it was contrary to law, was overruled and an exception taken. Judgment was then, without objection, rendered for the defendant below.

The issues having been found for the appellant, a motion for a new trial by it was not the way to raise any question. A motion for judgment upon the finding should have been made, in order to present to the court below the question to

Allen v. Jerauld.

which our attention is called. As that was not done, the only inquiry that presents itself is, cau the question be made, for the first time, in this court? It would be contrary to the whole current of decisions under the code so to hold. The rule is general and almost universal, that a question cannot be made in this court which has not been made in the court below.

The judgment is affirmed, with costs.
C. C. Nave, for appellant.
L. M. Campbell, for appellee.

ALLEN U. JERAULD.

Parties.-Defect of.-Dcmurrcr.—Answer by way of set-oíi, alleging, " that

before the commencement of this action the plaintiff was, and still is, indebted to the defendant on an account before that time assigned to him in writing by" a third person named but not made a party; copies of the ac

count and assignment being filed therewith. IIcld, that the answer was bad on demurrer expressed in the statutory form,

for a defect of partics defendants.

APPEAL from the Gibson Common Pleas.

Ray, J.—Complaint by appellee on a promissory note executed by appellant.

Answer in three paragraphs. 1. In denial.

2. Set-off, as follows: “That when this action was commenced, the plaintiff' was, and still is, indebted to defendant, on an account, before that time assigned to him in writing by one Sherlow;" copies of the account and assignment being filed therewith.

3. Additional set-off, as follows: “That before the commencement of this action, plaintiff was, and still is, indebted to defendant in a further sum, on an account before that

Gregg v. Matlock.

time assigned to him in writing by said Sherlow;" setting out copies of the account and assignment, and offering to set off the amount due the plaintiff, and asking judgment for the residue.

Demurrers to the second and third paragraphs of the answer were sustained. The grounds of the demurrers were: first, that said paragraphs did not state facts sufficient to constitute a defense to the plaintiff's action; second, that said paragraphs show a defect of parties defendants.

It is objected, that the demurrer for defect of parties defendants does not point out the defect and name the parties who should have been joined. This demurrer is in the statatory form, and as the code expressly requires the assignor of an account to be joined as defendant in the action, and as the name of the assignor appears in the answer and bill of particulars, we do not regard it as proper to reverse the action of the court below where it has taken notice of the defect apparent on the face of the answer and sustained the demurrer.

The judgment is affirmed, with five per cent. damages and costs.

W. M. Land, for appellant. D. F. Embree, for appellee.

GREGG V. MATLOCK.

STATUTE OF LIMITATIONS.--Absence from the State on Public Business.- Vol

unteer Soldier.-Absence from the State as a volunteer soldier or officer in the army of the United States constitutes absence on public business within the meaning of the statute which provides, that “the time during which the defendant is a non-resident of the State, or absent on public business,

Gregg v. Matlock.

shall not be computed in any of the periods of limitation" (2 G. & H. 161, sec. 216). APPEAL from the Hendricks Circuit Court.

Gregg sued Matlock before a justice of the peace, on an account for sixty-eight dollars, for professional services as an attorney.

Answer, the statute of limitations.

Gregg recovered before the justice, and Matlock appealed to the circuit court.

Gregg, by leave of the court, filed an amended reply to the answer, alleging, in substance, that the cause of action accrued to the plaintiff on the day of April, 1862; and that the defendant left the State of Indiana on public business, to wit, as a volunteer in the army of the United States, on the day of August, 1862, and was absent from said State of Indiana, on public business, as an officer in the 70th regiment of Indiana volunteers, in the service of the United States, until the - day of September, 1864, a period of over two years, after the cause of action accrued, and before six years had elapsed; that this suit was commenced before the justice of the peace who tried it, on the 28th of November, 1868, and, dedueting, the time that the defendant was absent from the State on public business as aforesaid, within six years after the cause of action accrued. The court sustained a demurrer to the reply, and, the plaintiff refusing to reply further, rendered final judgment for the defendant.

An exception was taken to the ruling on the demurrer. The correctness of that ruling is the question presented in this court.

ELLIOTT, C. J.-Actions on accounts and contracts not in writing, if not commenced within six years next after the cause of action accrues, are barred by the statute. 2 G.& II. 156, sec. 210. But section 216 provides, that the time during which the defendant is a non-resident of the State, or absent on public business, shall not be computed in any

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