Nov. Term, plicable in this case. Here, the note, had it even been 1856. SHAW V. WOOD. made in Ohio, stipulated for a waiver of appraisement laws. Our laws authorize notes with such stipulations, and judgments upon them accordingly. It was not shown that the laws of Ohio were different. See Little v. White and another, 3 Ind. R. 544. Perhaps the waiving would have been operative in this State, even had the laws of Ohio been different. Besides, in this case, the note seems to have been made payable in Indiana. No point is made on the informality in its execution. To try the cause, a jury was summoned from among the bystanders, the regular panel having been discharged. The statute of 1852 authorizes such a proceeding, and the statute of 1853, which is merely supplementary to that of 1852, does not repeal or vary the latter, touching this point. See Laws of 1853, p. 82. But one more point is made by counsel in the brief filed. It is this: When the jury returned their verdict, the Court, on inspecting it, discovered a clerical error in computing the amount due on the note, and suggested it to the jury. The Court made a computation, and handed the paper containing it to the jury, telling them to examine it, and to go over the computation again themselves, and if they found their former one erroneous to correct it. The jury then calculated anew the interest upon the note, deducted payment, &c., and returned a verdict different by some seven dollars from the first. This was done in the jury box. We think there was no error in this. See Noble v. Epperly, 6 Ind. R. 468; Hall v. The State, at the present term (2). Per Curiam.-The judgment is affirmed with 2 per cent. damages and costs. B. McClelland, for the appellants. S. Colgrove O. P. Morton, for the appellees. (1) Post, the last case at this term. (2) Ante, 439. KEY and Wife v. ADDICKS and Others. APPEAL from the Perry Circuit Court. Nov. Term, 1856. WOODRUFF V. THE STATE. Tuesday, Per Curiam.-Complaint to foreclose a mortgage executed by Key and wife to secure the note of L. D. Stick- 1857. ney & Co., of which firm Key was a partner. The decree is against the defendants, Key and wife, for the amount of the note and interest; and in case the mortgaged premises should fail to satisfy the debt, then that the plaintiffs have further execution against the defendants, Key and wife, to satisfy the same. The personal judgment against Mrs. Key, is erroneous. She is in court for the sole purpose of concluding her marital rights in the mortgaged premises. Having executed the mortgage with her husband, she is a proper party for that purpose. But she is not a debtor, nor in any other sense a party to the suit. The decree should be against Key alone,-ordering the mortgaged premises and all the rights of Key and wife therein to be sold, &c.; and in case the proceeds should not be sufficient to satisfy the debt, then that further execution go to be levied of Key's property only. The judgment is reversed with costs. manded, &c. B. Smith, for the appellants. Cause re WOODRUFF v. THE STATE. A. and B. were prosecuted for nuisance. A. plead guilty. B. went to trial, on plea of not guilty, and was convicted. The Court taxed the costs to A. up to the severance. Held, that there was no error in this. Nov. Term, 1856. ODELL V. JENKINS. Tuesday, January 27, 1857. APPEAL from the La Grange Court of Common Pleas. Per Curiam.-Woodruff and Farrington were prosecuted for a nuisance. On the trial, Woodruff plead guilty. Farrington went to trial on the plea of not guilty, and was convicted. The Court taxed the costs of the cause up to the time of severance against Woodruff. He excepted and appeals. The costs were correctly taxed. Had there been no severance, the conviction of both would have carried the entire costs; and the officer could collect them from either. Up to the time of severance, the costs of process, witnesses, &c., were essential to enable the State to prosecute. When Woodruff plead guilty, the Court must render judgment; for Farrington might have continued his case till the next term. The Court could not suspend judgment against Woodruff till Farrington was tried. By the severance they stood as separate cases. Each conviction carried all the costs up to the severance, and then the separate costs of each. Perhaps the payment of the costs by one of the parties up to the severance, might, if properly presented, be a discharge of the other. The judgment is affirmed with costs. J. M. Flagg, for the appellant. D. C. Chipman, for the State. ODELL and Others v. JENKINS. An appeal from the order of a county board vacating a road, cannot be taken by a person who was not a party to the proceeding, unless he make himself a party by affidavit that he is interested or aggrieved by Nov. Term, the decision. 1856. APPEAL from the Shelby Circuit Court. ODELL V. JENKINS. Per Curiam.-The proceeding was commenced before Tuesday, January 27, the board of commissioners in March, 1853, to vacate a 1857. road. Odell and others were the petitioners. The road law of 1849 was then in force. As there was no remonstrance, an order to vacate was granted. Laws of 1849, p. 106, ss. 36, 37, 38. Jenkins appealed to the Circuit Court; but he does not appear in the record as a remonstrant, nor does he file an affidavit that he is interested in or aggrieved by the decision. The fifty-seventh section authorizes an appeal by any person considering himself aggrieved by the decision of the board, within sixty days, and that the action of the appellate court shall be final; but it is silent as to the mode in which the person aggrieved shall make himself a party. Id. p. 108. In the Circuit Court, Odell and others, appellees below, moved to dismiss the appeal because Jenkins had not made himself appellant by affidavit or otherwise. The Court overruled the motion, and the appellees below excepted, &c., and now appeal. We think the Court erred in overruling the motion. The fifty-sixth section of the road law of 1849, is the same as the fifty-sixth section of the road law of 1843. R. S. 1843, p. 333. Both these sections, while respectively in force, are to be taken in connection with the thirty-seventh section of the article relating to the duties of the county board. R. S. 1843, pp. 186, 187. That section. provides that if the person aggrieved by the decision, and appealing therefrom, be not a party to the matter or proceeding, the appeal shall not be allowed, unless he make himself a party by affidavit setting forth explicitly the nature of his interest in the subject-matter. Jenkins not appearing to be a party to the original proceeding, and not having made himself a party, in conformity to the statute, was not entitled to prosecute an Nov. Term, appeal. His right to appeal should appear affirmatively from the record. Stayton v. Hulings, 7 Ind. R. 144. 1856. THE STATE V. SWAILS. The motion to dismiss the appeal for want of a proper appellant in the Circuit Court, was correctly made, and should have been sustained. The judgment is reversed with costs, and the Circuit J. Harrison and M. M. Ray, for the appellants. Tuesday, January 27, 1857. THE STATE v. SWAILS. If to the intent to commit a felony the present ability to commit it be not joined, the offense is not complete. Where A. fired a gun at B. at the distance of forty feet, with intent to murder him,-A. believing that the gun was loaded with powder and ball, though in fact it was loaded with powder and a light cotton wad, held, that there was no assault with intent to commit murder. APPEAL from the Decatur Circuit Court. Per Curiam.-Indictment for shooting at one Lee with intent to commit murder. Trial by jury, and verdiet of acquittal. The only question raised is upon an instruction given to the jury. The instruction is in these words: "If you believe, from the evidence, that at the time the defendant fired the gun at said Lee, it was not charged with any thing but powder and a light cotton wad,-Swails being at the distance of forty feet from Lee at the time, and that at that distance the life of Lee was not at all endangered or put in jeopardy by the act of Swails in discharging the gun at him, in consequence of the manner in which it was loaded; the de |