List and Others v. Kortepeter. had fully paid his equal part thereof. The reply was a general denial, and a special paragraph amounting to a denial. The court below allowed the defendant to open and close the argument. This was correct. He had the burden of the issues, his answer being altogether in confession and avoidance. The averment in the complaint that the plaintiffs indorsed the bill "by procurement of the defendants," was neither necessary nor proper in the complaint-it was no part of the plaintiffs' original case, and required no proof. If that naked fact was of any legal force at all, it could only become important because of proof offered by the defense, and we know of no rule of practice or pleading by which a plaintiff can gain any advantage by putting needless averments in his complaint, or by therein anticipating the defense which he may apprehend will be made. Steph. Pl., p. 242. The court instructed the jury that, in determining the issue formed by a denial of the defense of want of consideration, the circumstance that the defendant had requested or urged some of the plaintiffs to indorse the bill should not be regarded. The appellant complains of the instruction. The evidence is not in the record, and without it we can not say that the instruction was erroneous. If under any possible state of the evidence the instruction would have been proper, we must presume it to have been correctly given. Assume it to have been admitted on the trial that the bill was made without any consideration whatever, and that afterwards the defendant requested and urged the plaintiffs to raise money for their own benefit by putting the bill in circulation, can it be doubted that, in that state of the case, the instruction ought to have been given? See Legget v. Harding, 10 Ind. 414; Coyner v. Lynde, id. 282; Wood v. Commons, 3 Ind. 418; Cory v. Silcox, 6 Ind. 39. Other instructions are also questioned, but what has been already said sufficiently shows why the case can not be Chicago and Great Eastern Railway Company v. Gifford. reversed because of them. There may have been such evidence as would have justified them. The appellant complains also that a demurrer was overruled to the answer of want of consideration. We can not suppose that it is necessary to discuss this question. It seems plain enough that the demurrer was correctly overruled. The judgment is affirmed, with costs. R. L. Walpole, for appellants. A. G. Porter, B. Harrison and W. P. Fishback, for appellee. CHICAGO AND GREAT EASTERN RAILWAY COMPANY v. GIFFORD. APPEAL from the Tippecanoe Common Pleas. GREGORY, C. J.-This was a suit against the railway company for killing stock on the track of its road, where it ought to have been, but was not, fenced. The question attempted to be raised is that process was not served in time, being served on the conductor of a passenger train, when the principal office of the company was without this State. The affidavit setting up the fact that the principal office of the company was without the State is no part of the record, unless made so by a bill of exceptions. There is no bill of exceptions in the record, therefore there is no question properly before this court. The appeal is dismissed, with costs. 26 30 145 532 26 30 164 323 Wassels v. The State. WASSELS v. THE STATE. INDICTMENT. INDORSEMENT.-The signature of the foreman of the grand jury by the initials of his christian name to the indorsement on an indictment is sufficient. CONTINUANCES IN CRIMINAL CASES.-Section 322 of the civil code, and the amendatory act of 1865, (Acts 1865, p. 61,) relate only to continuances in civil cases. Page 31. SAME-Applications for continuances are addressed to the sound discretion SAME.--The accused is entitled to have the witnesses whose evidence is mate- APPEAL from the Marion Circuit Court. ELLIOTT, J.-Wassels, the appellant, was tried and convicted in the Marion Circuit Court on an indictment for grand larceny, and sentenced to imprisonment in the State prison for the term of two years. He appeals to this court, and presents several questions, reserved by motion for a new trial and in arrest of judgment, for a reversal of the judgment of the Circuit Court. The record shows that one Samuel D. Maxwell was duly appointed foreman of the grand jury that returned the indictment. The indictment so returned was indorsed "A true bill," and signed "S. D. Maxwell, foreman." The defendant moved the court to quash the indictment on the ground that it should have been signed by Maxwell, the foreman, by his full name, and this is one of the questions urged for a reversal of the case. The ruling of the court was right. Wassels v. The State. When the case was called for trial, the defendant filed an affidavit, and thereupon asked that the trial of the cause be continued until the succeeding term of the court, on account of the absence of two witnesses whose evidence was material to his defense. The affidavit contained all the requisite statements to entitle him to a continuance. The prosecuting attorney thereupon offered to admit on the trial "that the absent witnesses, if present, would testify to the facts set forth in the affidavit as true, but would not admit that they were in fact true." The court overruled the motion for a continuance, and compelled the defendant to go to trial in the absence of the witnesses. The defendant excepted to the ruling of the court. Section 322 of the civil code, as originally enacted, provided that if, upon a motion being made by one of the parties to a suit, upon affidavit, for the postponement of the trial on account of absent evidence, the adverse party would consent that on the trial the facts sought to be proved should be taken as true, the trial should not be postponed for that cause. But in 1865 that section was amended, and now provides that when the trial is sought to be postponed on account of an absent witness, if the adverse party will consent on the trial that the absent witness will testify to the facts sought to be proved by him as true, the trial shall not be postponed for that cause; but the party against whom such evidence is used shall have the right to impeach such absent witness, as in cases where the witness is present, or his deposition is used. Acts of 1865, (Reg. Sess.,) 61. This statutory provision, however, relates only to continuances in civil causes, and does not apply to criminal prosecutions. The State v. Flemons, 6 Ind. 279; McLaughlin v. The State, 8 Ind. 281. The statute regulating the practice in criminal cases contains no direct provision on the subject of continuances, but by section 172 of that act it is provided that "The laws and usages of this State, relative to pleading and practice in criminal actions, not inconsistent herewith, as far as the same may operate in aid hereof, or to Wassels v. The State. supply any omitted case, are hereby continued in force." 2 G. & II., p. 428. Under the revision of 1843, a party making an affidavit for the continuance of a cause on account of an absent witness was required to state therein, in addition to the other necessary matters, the substance or principal facts expected to be proved by such witness, in order that the court might judge of the materiality thereof. R. S. 1843, § 262, p. 719. That provision applied to both civil and criminal cases; but the statute contained no provision authorizing the adverse party to avoid the continuance by an admission, in any form, of the facts expected to be proved by the absent witness. Applications for continuances are addressed to the sound discretion of the court to which they are made, and this court will revise a decision of the lower court on that subject only in a clear case of the abuse of that discretion. Pine v. Pro, 6 Blackf. 426. In Hamilton v. The State, 3 Ind. 552, the defendant, who was indicted for arson, moved the court for a continuance, on an affidavit filed, on account of the absence of a material witness. The counsel for the State thereupon admitted that the witness named would testify to the facts stated in the affidavit, but reserved the right to impeach her credibility. The court, upon this admission being made, refused to continue the cause. In affirming the ruling of the lower court, it is said that the defendant "had all the advantage he could have derived from the testimony of the witness named in his affidavit if she had been personally present." It is to be observed that this decision was made after the passage of the code of 1852, but before it was published, and could not therefore have been based upon the provision of the code to which we have referred. But the ruling in that case was subsequently overruled in McLaughlin v. The State, 8 Ind. 281, in which it was held that the court below should have granted the continuance, or required that the facts sworn to should be admitted to be |