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The Board of Commissioners of Bartholomew County v. Wright.

burse to such townships the sums so advanced and not directly to support the poor.

The next point made is upon the sixth and seventh paragraphs of the answer, which set up that, at the March term of the Board of County Commissioners, said plaintiff filed his claim for these identical services, upon and for which an allowance was made by said Board to said plaintiff, payable out of the county treasury; that afterwards, at the June term in said year, the same claim for the same services was again filed before the said Board, and an allowance refused, because it had been passed upon as aforesaid at the preceding term; that plaintiff then instituted this suit thereon in the Circuit Court, said allowance still standing, &c.

These paragraphs show that the Board did not allow the full amount of the account or claim presented, which, we suppose, accounts for its subsequent presentation again. The answer is in substance a former recovery. Are the proceedings of a county board of such a character that they can, in this instance, be set up as a defence?

It has been repeatedly held by this Court that the board of county commissioners, under organizations similar to that which now exists, and with substantially the duties now devolved upon such tribunals, were and are inferior courts of record-judicial tribunals for certain purposes. The organization and duties are purely statutory. R. Stat. 1831, p. 131; R. Stat. 1838, p. 151; R. Stat. 1843, p. 183; 1 G. & H. 247; The State v. Conner, 5 Blkf. 326; id. 462; Rhode v. Davis, 2 Ind. 53; The Board, &c., v. Cutler, 7 id. 6; Rosenthal v. The Madison, &c., 10 Ind. 361. From these adjudications, in reference to the acts of the Board under the statutes cited, and that of Gaston v. The Board, &c., as to the conclusiveness of such acts, the argument is based that an allowance, or passing upon a claim, can not, in subsequent proceeding, be thus ignored. Whatever force exists in the arguments, as applied

Green v. The City of Indianapolis.

to the acts of this tribunal, we need not determine, it appears to us, in view of section ten of an act to authorize and limit allowances by courts and boards, 1 G. & H. 64, which provides for appeals, &c., and: "If a claim be disallowed in whole or in part, the claimant may appeal; or, at his option, bring an action against the county."

Per Curiam.-The judgment is affirmed, with 3 per cent. damages, and costs.

Francis T. Hord, for the appellant.
N. T. Hauser, for the appellee.

GREEN V. THE CITY OF INDIANAPOLIS.

PLEADING. In an action to recover the penalty for the violation of a by-law or ordinance of a city, a copy of the by-law or ordinance should be made a part of the complaint and filed with it.

APPEAL from the Marion Common Pleas.

PERKINS, J.-A complaint as follows was filed before the mayor of Indianapolis:

"STATE OF INDIANA, MARION COUNTY, SS:

"The City of Indianapolis, plt.,) Before John Caven, mayor of the city of Indian

V.

apolis.

"Molly Green, deft. "The City of Indianapolis complains of Molly Green, late of said city, and says that said Molly Green, on the 27th day of June, 1863, at the city and county aforesaid, did then and there violate section nine of an ordinance of said city passed by the common council thereof, on the 4th day of May, 1859, a copy of which is herewith filed. The said defendant did un

Green v. The City of Indianapolis.

lawfully keep a house of ill-fame and prostitution in said. city of Indianapolis, county of Marion, State of Indiana, wherefore the plaintiff demands judgment for 50 dollars.

"R. J. RYAN, City Attorney."

The complaint was verified.

Neither the by-law, (the ordinance on which the suit was based) nor any section of it, nor a copy of either, was filed with the complaint, or any where appears in the record. The complaint is fatally defective for this reason. 5 Blackf. 236, 8 Ind. 130, 16 Ind. 273. Ang. and Ames on Corp., 7th ed., p. 21; and also § 366. In Stuyvesant v. The Mayor, &c., of New York, 7 Cowen, on page 608, the Court say of the declaration in that case that it conforms in every respect to the rule laid down by Kyd, in his treatise on the law of corporation. (2 Kyd on Corp. 167.) "In an action of debt for for the penalty of a by-law, the time when it was made, the parties by whom it was made, their authority to make it, the by-law itself, and the breach of it by the defendant must be set forth, that the Court may judge both whether the by-law be good, and whether the defendant be a proper object of the action." (Vide Hut. 5, Hob. 211, 1 Str. 539, Brownl. & Gouldsb. 177.)

In this State, where municipal corporations are organized under the general law, the Court would take judicial notice of their powers to enact by-laws, but not of the fact that any given one had been enacted. As the by-law or ordinance in question, then, is not in the record, and the Court does not take judicial notice of such corporate acts, we can not pass upon its legal construction or validity. Indeed, we do not know that any such exists.

A public statute need not be set out in pleading, nor, in this State, need a private act of the legislature, 2 G. & H. p 109. But statutes of other States, relied upon must be set VOL. XXII.-13.

Welborn v. Swain.

out by copy, and so must by-laws of corporations, for they are not statutes of the State.

If there was no appeal from the judgment of the mayor in these cases, it might well be that by-laws should not be set out, but should be judicially noticed by the mayor; but as appeals are allowed to the State courts, the acts of the corporation relied on as foundations of suits or defences must be set out in the pleadings, and proved on trials to bring them before appellate courts.

The record before us shows no cause of action. It is as important that a by-law sued on be set out, as it is that a written instrument should be.

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

J. N. Sweetser, for the appellant.

R. J. Ryan, and J. C. Bufkin, for the appellee.

WELBORN V. SWAIN.

DEPOSITIONS-PRACTICE.-Where the certificate to a deposition states

that the deponent

was sworn to testify the whole truth of his knowledge touching the matters in controversy in the cause," it should be held to be an immaterial deviation from the exact requirements of the statute in such cases.

APPEAL from the Henry Circuit Court.

DAVISON.-This was an action by Swain against Welborn for work and labor; for money paid, laid out and expended; for goods sold and delivéred; for money loaned, and for money due upon an account stated, &c.

Welborn v. Swain.

Defendant answered by a denial. Verdict for the plaintiff, upon which the Court, having refused a new trial, rendered judgment.

There is a bill of exceptions which shows that defendant moved to suppress the deposition of Thomas Lewis on the ground that the officer before whom it was taken does not state, in his certificate, that the witness was sworn to "testify the truth, the whole truth and nothing but the truth," nor that he was sworn "according to law." The certificate, however, does state that, "witness was sworn to testify the whole truth of his knowledge touching the matters in controversy in the cause aforesaid."

There is a provision of the statute which says: "An unimportant deviation from any directions relative to the taking of depositions, shall not cause any deposition to be excluded where no substantial prejudice would be done to the opposite party." 2 R. S. p. 180, § 272.

We think this provision applies to the case before us. The witness was sworn to testify "the whole truth" within his knowledge "touching the matters in controversy in the cause." This, it seems to us, was substantially a swearing "according to law;" id. p. 176, § 258; and may be regarded "an unimportant deviation" from the literal requirements of the statute; nor does it appear that, by such deviation, the defendant was in any degree prejudiced. There being no other point made by the appellant in his brief, the judgment must be affirmed.

Per Curiam.-The judgment is affirmed, with 5 per cent. damages, and costs.

James Brown and J. B. Julian, for the appellant.

Mellett & Martindale, for the appellees.

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