Holland et al. v. The State, ex rel. Fenton.

appellee. The court overruled a motion for a new trial, rendered judgment on the finding.

and

The error assigned consists in overruling the motion for a new trial.

The case made is this: In 1863, Holland was appointed the guardian of the relator, and soon afterward received four hundred dollars of his ward's money. In 1867, the guardian presented to the Clark Common Pleas his report, showing the amount of money by him received, the amount paid out, and the balance in his hands, which, by the order of the court, he paid into court, and resigned his trust, and was by the court discharged as such guardian. In his report, the guardian asked and obtained a credit for the sum of three hundred dollars, for so much money paid to James M. Phillips for boarding and lodging his said ward.

The object of this suit is to recover from the guardian and his surety the said sum of money so paid to Phillips, with interest and ten per cent. damages.

The court rendered a judgment for four hundred and fiftyone dollars and fifty cents and costs.

It appears from the evidence, that the claim was unjust and fraudulent on the part of Phillips, who was a brother-in-law of the relator. It further appears, that the claim was presented to the court, who ordered the guardian to pay the same, and the same was paid in open court, and the voucher of Phillips was presented and allowed by the court, and the guardian discharged. There was no appeal to the circuit court.

The settlement so made by the guardian has not been revoked or reopened, but remains in full force and unappealed from. In such case, no action can be maintained upon the bond of the guardian. Such final settlement, unless revoked, reopened, or appealed from, is conclusive upon the parties. In case of appeal, the settlement may be set aside for mistake or fraud. In this action, the settlement cannot be attacked. There was a failure of proof. Sec. 116, 2 G. &. H. 518; Reed v. Reed, 44 Ind. 429; Barnes v. Bartlett, 47 Ind. 98.

The judgment is reversed, with costs; and the cause is

Hammond v. The State.

remanded, with directions to grant a new trial, and for further proceedings in accordance with this opinion.

HAMMOND V. THE STATE.

From the Elkhart Circuit Court.

R. M. Johnson and J. D. Osborn, for appellant.

C. A. Buskirk, Attorney General, W. C. Glasgow, Prosecuting Attorney, and J. A. Simmons, for the State.

DOWNEY, J.-This was a prosecution, on an affidavit and information, against the appellant, charging that he did unlawfully sell, barter, and give to a person named "one gill of intoxicating liquor," the person whose name is given being then and there in the habit of getting intoxicated.

The first point made is, that the court erred in overruling a motion made by the defendant to quash the affidavit and information. The ground of objection is, that the affidavit and information do not allege that the liquor was intoxicating.

Counsel say: "It is true that the language of the affidavit is 'one gill of intoxicating liquor,' but this, we submit, is scarcely equal to saying that the liquor was intoxicating," etc. The difference is between saying that "the liquor was intoxicating," and saying that it was "intoxicating liquor." To us the words convey the same idea. There is nothing in the objection.

The next question is upon the refusal of the court to grant a new trial, which was asked on the ground of newly-discovered testimony. With some hesitation, we have come to the conclusion that the new trial should have been granted.

The judgment is reversed, and the cause remanded, with instructions to grant a new trial.

Alexander et al. v. The State.

ALEXANDER ET AL. v. THE STATE.

CRIMINAL LAW.-Indictment.-Billiard Table.-Minor.-An indictment under sec. 1 of the act of March 8th, 1873, Acts 1873, p. 30, which does not allego that a game was played, and state the name of the person with whom the minor played the game, or allege that such name is unknown, is bad. But it is not necessary in such indictment to negative the exception contained in sec. 3 of said act. That the case comes within such exception, is to be shown by the defendant.

From the Wells Circuit Court.

A. N. Martin, for appellants.

C. A. Buskirk, Attorney General, for the State.

BUSKIRK, C. J.-This is a prosecution under the first section of the act of March 8th, 1873. See Acts 1873, p. 30. The court below overruled motions to quash the indictment, and in arrest of judgment. Trial, and judgment against appellants.

These rulings are assigned for error.

The indictment charges that the appellants, on, etc., and at, etc., were the owners, and had the care, management, and control, of a certain billiard table, and then and there unlawfully allowed, suffered, and permitted one Charles Shaffer, who was then and there a person under the age of twenty-one years, to play billiards at and upon said table. It was held by this court, in Zook v. The State, 47 Ind. 463, that the above statute made it unlawful to permit a minor to play a game on any of the instruments therein specified, and that to render the indictment good, it was necessary to allege the name of the person with whom the game was played, or to aver that such name was unknown.

Under that ruling, the indictment under examination is bad, because it does not charge that a game was played, or give the person with whom it was played, or aver that such name was unknown.

name of the

It is also insisted by counsel for appellants that the indictment is bad, because it does not negative the exception contained in the third section of said act. The exception being

Darter et al. v. Brown et al.

in a different section, the pleader was not required to negative it. In such case, it was for appellants to show that the case came within the exception.

The judgment is reversed, with costs; and the cause is remanded, with directions to the court below to sustain the motion to quash the indictment.

DARTER ET AL. v. BROWN ET AL.

REPLEVIN.-Pleading.-- Bailment.-Property in the defendant is a good answer in replevin, whether it be an absolute property or the qualified property of a bailee in the thing bailed; and such answer forms an issue without a reply; and a reply may be struck out on motion, or, which is the same in effect, a demurrer thereto may be sustained.

From the Montgomery Circuit Court.

P. S. Kennedy and W. T. Brush, for appellants.
R. B. F. Pierce, for appellees.

DOWNEY, J.-This was replevin by the appellants against the appellees, for a lot of canvased hams, and a lot of hams not canvased. The defendants answered by a general denial, and also a special paragraph setting up a lien on the hams, in consequence of having slaughtered the hogs, from which the hams were taken, and cured and canvased the hams.

The plaintiffs replied in five paragraphs, the first of which was a general denial, and the others special.

The defendants demurred to the second paragraph of the reply, and their demurrer was sustained. This ruling of the court is the only error assigned.

Property in the defendant is a good answer in replevin, and makes an issue without a reply. Landers v. George, 40 Ind. 160. It can make no difference whether the property which

Debreuil et al. v. Davis.

the defendant has in the goods be the absolute property, or only a qualified property, such as is set up in the special paragraph of the answer. He may defend on either. A bailee of goods has a qualified property in the thing bailed; and a bailce, having a lien on the goods bailed, may defend his possession against the claim of the owner.

The second paragraph of the reply might have been struck out on motion. The defendant got rid of it, however, by demurrer, which is, in substance, the same. Landers v. George, supra. See, on the general subject, Thompson v. Sweetser, 43 Ind. 312, and Sparks v. Heritage, 45 Ind. 66. The judgment is affirmed, with costs.

DEBREUIL ET AL. v. DAVIS.

From the Lake Circuit Court.
E. C. Field, for appellants.
T. J. Merrifield, for appellee.

DOWNEY, J.-The errors assigned in this case are as fol

lows:

1. That the verdict of the jury is contrary to law in finding for the plaintiff against the defendant Debreuil, on the first paragraph of the complaint.

2. That the verdict of the jury was contrary to law in finding for the defendant Mitchell, on the second paragraph of the complaint.

3. That the court, in overruling the demurrer to the plaintiff's complaint, committed error of law, which was excepted to at the time by the defendants.

4. The verdict of the jury was not sustained by the evidence.

The first, second, and fourth alleged errors might have been