Carmichael v. Shiel.

crime. Ausman v. Veal, 10 Ind. 355. Whether the words used in this case did refer, as the hearers all understood, to such a transaction, should, we think, have been left to the jury. In the event that all the hearers did so understand the words, the case might be considered as though Mr. Carmichael had included the evidence on the trial, which had just been heard by the bystanders, in his charge of stealing the dishes; as though he had said, I want you to bring back the dishes you stole from my house in the manner and under the circumstances which have just been explained to this audience on your (Margaret's) trial. See Pritchard v. Loyd, 2. Ind. 154, and Thompson v. Grimes, 5 Ind. 385. If, however, the hearers did not so understand Mr. Carmichael, but, on the contrary, understood him to make the renewed charge, independent of the facts developed on the trial, and upon what he might assume to know beyond the facts developed, then the words might constitute a slanderous charge.

Per Curiam.-The judgment below is reversed, with costs. Cause remanded.

Newcomb & Tarkington, for the appellant.1

Wm. P. Fishback, J. D. Howland, and Lucien Barbour, for the appellee.2

(1) The appellant, by counsel, argues: Where words, in themselves actionable, are spoken of a subject-matter which, in itself, is not a crime, or where there are circumstances given by the speaker, or known to the hearers, which show that no crime had been in fact committed, no action can be maintained for the speaking of the words. Abrams v. Smith, 8 Blackf. 95: Van Rensselaer v. Dole, 1 Johns. Cas. ⚫239; Thompson v. Bernard, 1 Campb. R. 48; Dexter v. Taber, 12 John. R. 239.

(2) The learned argument of the counsel for the appellee consists mainly of a review of the facts, and an effort to reconcile them with admitted principles of law, favorable to the interests of the appellee,

Fidler v. Fidler.

FIDLER V. FIDLER.

PRACTICE IN SUPREME COURT.-Where there is evidence tending to sustain the finding and judgment below, this Court will not disturb the judgment where the case is brought here upon the evidence.

APPEAL from the Floyd Circuit Court.

HANNA, J.-It appears, in this case, that John Fidler, two months after the death of his wife, was married to Rachel, the plaintiff herein; that he had, for several years, been a sober and religious man; that, for several days preceding this marriage, he had been drinking, a part of the time drunk; that during that time, say for two weeks, immediately preceding the marriage, he was at plaintiff's house, who set liquor before him; that the plaintiff was requested by his friends not to marry him until he sobered up; that she would not consent, although the marriage was postponed from Monday until Wednesday, because he was drunk; that Tuesday night he was still drunk; that Wednesday morning, when married, he was in his shirt sleeves, looking dirty, &c.; that he was drinking for several days afterwards; that, when he became sober, he left her, and in little more than a month thereafter, she applied for a divorce. The Court granted it with 250 dollars alimony.

The pleadings and evidence appear to have presented the questions of the validity and fairness of the marriage contract. The Court, in passing upon the matters thus presented, must necessarily, in the conclusion arrived at, have determined those questions in the affirmative; at all events, the first. Whether we would have come to a like conclusion on the evidence, it is not necessary to say; but the Court, having so found, we do not see that we can, under our repeated rulings, disturb the judgment.

Per Curiam.-The judgment is affirmed, with costs.

John H. Stotsenburgh and Thos. M. Brown, for the appellant. Willett Bullitt, for the appellee.

Ickes v. Kelley.

ICKES V. KElley.

PRACTICE-CHANGE OF VENUE.-It is too late to apply for a change

of venue after the trial has been commenced.

For the other points decided herein, see the opinion at length.

APPEAL from the Vigo Circuit Court.

HANNA, J.-This was an action for the unlawful detention of "a certain coal bank, commonly called Thrall's Coal Bed, being about two acres of land, wherein the same is situated." Suit was commenced before a justice. The transcript shows that the parties appeared, and, after the plaintiff had introduced a part of his evidence, to-wit: title deeds, the defendant filed an affidavit, that he believed the plaintiff was not the real owner of said land, but one Mattingly, or one Thralls, and moved to certify the case to the Circuit Court, which was overruled. He then filed an affidavit, alleging prejudice, &c., in the justice, and praying a change of venue, which was refused, on the ground that the application came too late. Judgment against the defendant.

On appeal, the defendant moved to dismiss, because the complaint contained no cause of action; because of the refusal of the justice to certify the cause, or to grant a change of venue. Motion overruled. Trial, finding and judgment for the plaintiff, over a motion for a new trial. The errors assigned are based upon the rulings in refusing to dismiss, and in overruling the motion for a new trial.

Upon the first point there was no error. The complaint sets out facts showing the right of the plaintiff to possession, and averring that the defendant entered peaceably into possession, but was holding by force and without right. There was no answer filed, and the affidavit filed did not put in issue the title to real estate. Under the statute, the application for a change of venue came too late-after the trial had commenced.

Ickes v. Kelley.

Upon the second point, the amount of damages assessed for the detention, &c., was sixty-two dollars. The basis on which the damages were calculated, does not clearly appear. The record contains the evidence, and shows the amount of coal taken out, the value thereof at the mines before and after it was taken out, and the cost of transportation to market, and the value at that market. No evidence appears as to the use of any part of said two acres of land, or the improvements thereon, except the coal bed, nor that the same was of any value. It is evident, therefore, that the general ground upon which the damages were assessed, was the detention and use of the coal bed, and not the two acres of land; but it does not appear whether, in estimating the damages, the value of the coal in the mines, or at the market, after deducting the expenses, was taken into consideration. It is urged that the former is the measure of damages, and not the latter. The latter could not have been strictly adhered to in the assessment, as the evidence shows it would have given a sum much greater than that for which judgment was rendered. We are not prepared to say, from the record, that the judgment was for too great a sum.

It is also objected, that the judgment is erroneous, because it is for the recovery of the possession of the two acres of ground as well as the coal bed. The evidence shows that Mattingly leased, for one year, his farm, with the right to dig coal—this bed being thereon-to this defendant, in February, 1862, and that in March, 1862, said defendant released the right to dig coal, under said lease to said Mattingly, who, in September following, transferred two acres of land, including said coal bed, to Kelley.

It is possible that, if the trial had been had during the possession of said defendant, under his lease, the judgment, as to parts of said two acres of land, might have been erroneous. But however this may be, there does not, in this respect, ap

Richards, &c. v. Stogsdell et al.

pear to have been any error that should reverse the judgment, for two reasons: First, there was no motion below to correct the judgment, or be relieved therefrom in any form. Secondly, the evidence shows, as before stated, that the occupation of the two acres of land, other than the coal bed, could not have entered into the assessment of damages; and as to the judgment for the possession thereof, at the time of trial, the defendant's time had expired, and he was no longer in possession.

Per Curiam.-The judgment is affirmed, with 2 per cent. damages and costs.

Thomas J. Forrest, for the appellant.

Scott & Pierce and John E. Risley, for the appellee.

RICHARDS, &c. v. STOGSDELL et al.

PAYMENT OF TAXES.-The payment of taxes in an illegal and void currency is a nullity, and the tax collector might, notwithstanding such payment, proceed to collect them as in other cases. SAME-ACTION.-But the tax collector does not, by reason of a void payment to him of taxes on his duplicate, acquire any personal right of action against the person making such payment, for the recovery of the amount of taxes so attempted to be paid.

SAME. A tax collector, in order to avail himself of the remedy given him by section 193, 1 R. S. 1852, p. 145, must proceed within the time limited in said section.

APPEAL from the Owen Circuit Court.

WORDEN, J.-In 1857 and 1858 George Dittemore was treasurer of Owen county. Certain taxes were due from the