Hughes v. The Lake Erie and Pacific R. R. Co. is not available. And the second is also unavailing, for the reason that it does not appear to have been supported by an affidavit showing its truth. 2 R. S. (G. & H.) pp. 212, 215, §§ 352, 355. The judgment is affirmed, with 5 per cent. damages and costs. J. N. Evans, for the appellant. HUGHES V. THE LAKE ERIE AND PACIFIC R. R. Co. JURISDICTION-RAILROADS.-The Circuit Court and Courts of Common Pleas have concurrent jurisdiction in actions for the assessment of damages for lands taken by railroad companies, and where proceedings for such purpose have been commenced in one of said Courts, and appraisers appointed thereby, and an award made and returned by them, the other Court can not then deprive it of jurisdiction. APPEAL from the Wayne Circuit Court. PERKINS, J.-On the 10th of November, 1862, the Lake Erie and Pacific Railroad Company filed, in. the office of the Clerk of the Wayne Common Pleas, an appropriation of a parcel of the land of Evan Hughes, for the track of her railroad. Afterwards, the Judge of said Common Pleas appointed appraisers to determine and report the value of the land appropriated. Hughes was present by attorney at the appointment of appraisers. Afterwards, on the 12th day of December, 1862, the appraisers filed their award in the office of the Clerk of the Wayne Common Pleas. At the next term of the Wayne Circuit Court, Hughes, by his attorneys, claimed to have the award reviewed in that Court upon exceptions previously filed with the Clerk. The Circuit Court refused to take jurisdiction. 21 175 163 290 The State v. Hays. There are two statutes for the assessment of damages in cases like the present. Both give concurrent jurisdiction to the Circuit and Common Pleas Courts, and in a proceeding in either, the owner of the land is entitled to a jury trial in such Court before final judgment. The Lake Erie, &c., Co. v. Heath, 9 Ind. 558. The statutes are found, one in 1 G. & H. p. 509; the other in 2 G. & H. p. 315. The proceeding in this case was instituted under the former of the two statutes; and having been commenced in the Common Pleas, that is, the appropriation having been filed in that Court, the appraisers appointed by it, and the award having been returned to that Court, the jurisdiction of that Court attached, of which the Circuit Court could not, by attempting to assume jurisdiction, deprive it. The ruling of the Court below was right. Per Curiam.-The judgment is affirmed, with costs. THE STATE V. HAYS. "BANK BILLS"-"BANK NOTES."-The terms, "bank bills" and "bank notes," are synonymous in their popular sense, and, under SS 58 and 59, 2 G. & H. 403, they must be held to be identical in their legal signification. CRIMINAL LAW AND PRACTICE.-An indictment which describes the property stolen as "three bank bills of the description and denomination following, viz: one five dollar bank bill on the Hartford Bank of Connecticut, of the value of five dollars," &c., is sufficient as to the description of the property. APPEAL from the Wabash Circuit Court. The State v. Hays. DAVISON, J.-The indictment, in this case, charges the defendant with having stolen "three bank bills, of the description and denomination following, viz: one five dollar bank bill on the Hartford Bank of Connecticut, of the value of five dollars; one two dollar bill on the Bristow County Bank, Taunton, Massachusetts,, of the value of two dollars; and one one dollar bill on the Merchants' and Manufacturers' Bank, Pittsburgh, Pennsylvania, of the value of one dollar." Plea, not guilty. Verdict and judgment for the defendant. The record contains a bill of exceptions, which shows, that "during the progress of the trial, the State offered in evidence a paper, which is, in part, in the words and figures following:" "5 Hartford Bank. 5 "Will pay five dollars to the bearer on demand. Hartford, September, 1860. "H. A. DIKON, Prest." "JAS. BOLTEN, Cashier. An objection to the admission of this paper in evidence. was sustained by the Court, and the State excepted. The paper offered in evidence is plainly within the description of a bank note. Is it also a bank bill? In other words, are the terms, "bank note" and "bank bill," synonymous? If they are, then the instrument offered in evidence is sufficiently described in the indictment, and should have been admitted. 2 R. S. (G. & H.) p. 403, §§ 58, 59. Webster, in his Dictionary, says: "Bank Bill-In America, the same as bank note." And the Constitution, art. xi, sec. 1, is in these words: "The General Assembly shall not have power to establish or incorporate any bank or banking company, or monied institution, for the purpose of issuing bills of credit, or bills payable to order or bearer, except under the conditions prescribed in this Constitution." Thus, it will be seen, VOL. XXI.-12. Nill et al. v. Brooks. that the word note is not used in this section, and yet it designates a bill "payable to bearer," in such language as plainly makes it descriptive of the instrument proposed as.evidence in this case. And, so far as we are advised, the words, “bank bill" and "bank note," in their popular sense, are used to designate the same identical thing. That being the case, the Court, in its refusal to admit the evidence, committed an error. Per Curiam.-The appeal is sustained. Oscar B. Hord, Attorney General, and T. C. Whitesides, Prosecuting Attorney, for the State. NILL et al. v. BROOKS. PLEADING. When a pleading is founded on a written instrument, the original or a copy must be filed with it. APPEAL from the Allen Common Pleas. DAVISON, J.-Brooks sued Nill and Sturgis for the recovery of certain articles of personal property. The complaint is in the usual form. The defendants answered: 1. By a denial. 2. That the property was, by them, legally purchased of one Daniel Croucher, the owner of it, who delivered possession thereof to the defendants. 3. That George Nill, one of the defendants, became security for Croucher in the purchase of, and for, the same property described in the complaint. And to induce Nill to become such surety, Croucher agreed to give a mortgage thereon, to secure Nill in such suretyship; and, in pursuance of said agreement, Croucher did then and there deliver to Nill a mortgage, as Cornell v. Goodrich et al. but to the agreed on. But by mistake of the parties, the property, in the complaint described, was omitted. It is averred that the plaintiff, with a full knowledge of these facts, and with intent to defraud Nill, obtained from Croucher a mortgage on said property, and, by virtue of it, claims possession, &c. To the second paragraph there was a reply; third there was a demurrer, which was sustained. were submitted to a jury, who found for the plaintiff, and assessed his damage at 130 dollars, the value of the property, &c. New trial refused, and judgment, &c. The errors assigned, so far as relied on in the appellants' brief, are: 1. The sustaining of the demurrer. The issues 2. The insufficiency of the evidence to sustain the verdict. The defence demurred to, as we understand it, sets up a mortgage of the property in dispute, executed by Croucher to Nill, one of the defendants, prior to the date of the title relied on by the plaintiff. But the mortgage, thus set up, does not appear to have been filed with the pleading. Nor is there any averment that it was so filed. The defence, therefore, must be adjudged defective. 2 R. S. p. 44, sec. 78; 13 Ind. 58, 146. We have looked into the evidence, and are of opinion that it fully sustains the verdict. Per Curiam.-The judgment is affirmed, with 5 per cent. damages and costs. Jenkinson & Smith, for the appellants. CORNELL v. GOODRICH et al. PLEADING LIMITATIONS.-Suit to test the validity of a will. The complaint avers, amongst other things, the following facts: The will |