May Term, reference, the case of Bird and Another v. Lanius, 7 Ind. 1861. 615; and also, Lawrence v. Fox, 20 N. Y. 268, where the THE CITY OF authorities were examined and the Court divided.

NEW ALBANY

V.

SMITH.

The portion of the ordinance binding the city to the payment of the claim in question, if any, is the first part of the fifth section: "The city of New Albany shall assume and pay all the costs in the suits heretofore dismissed or now pending, wherein John Briggs, and Peter Tellon were and are plaintiffs, and the said city, railroad, and others are defendants, brought to test the validity of the tax assessed by said city for Sandusky City Junction Railroad purposes; also the fees of the attorneys of said Tellon and Briggs, as agreed upon between them and their said attorneys and said city and attorneys of said railroad company, and shall also consent," &c.

We do not construe the language here employed as binding the city to pay the fees of the attorneys of the railroad company, nor do we find any thing in the context which shows that such was the understanding of the parties. The natural and obvious import of the language employed is that the fees of the attorneys of Briggs and Tellon were to be paid as agreed upon. As agreed upon by whom? The conclusion of the sentence answers: "as agreed upon between them and their said attorneys and said city and attorneys of said railroad company." The inference is, that as the city was about to become responsible for the fees of the attorneys of Tellon and Briggs, the amount was fixed and agreed upon by the parties named, in order that there might afterward be no misunderstanding as to the amount. In order to hold the city liable for the fees of the attorneys of the railroad company, we should have to change the entire structure of the sentence, and make it read somewhat as follows: "also the fees of the attorneys of said Tellon and Briggs, as agreed upon between them and their said attorneys and said city; and shall also pay the fees of the attorneys of said railroad company," &c. This may have been the real intention of the parties, but it would require a greater latitude of construction than we feel at liberty to adopt, to give the language used such interpretation.

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

J. H. Stotzenburg, Thomas M. Brown and F. G. Dan

necker, for the appellants.

W. T. Otto and J. S. Davis, for the appellees.

1861.

PETERS

V.

BARNES.

PETERS V. BARNES.

A lease of lands for a term of three years, or less, though in writing and sealed, may be surrendered by a writing not under seal.

APPEAL from the Tippecanoe Circuit Court. HANNA, J.-John Peters sued Barnes for holding over certain real estate by him occupied as a tenant. Barnes had, it is alleged, together with one E. Peters, rented and taken a written lease for three years from Dicks. They agreed between themselves as to a division of said lands. After occupying nearly a year, defendant agreed with Dicks, in consideration of the payment of $25, the surrender of his notes for the last two years' rent, and that Dicks should rent him other lands, upon his giving security, to deliver up said lands at the end of the year, and made the following writing upon the back of said lease, which he delivered to said Dicks, to wit: "December 22, 1857. I hereby relinquish my claim to the within article. LUTHER BARNES."

On the 29th of the same month the plaintiff bought said lands so rented to Peters and Barnes, took a deed therefor, and an assignment of the lease to himself. Barnes afterward refused to give possession. On the trial, the Circuit Court refused to permit the plaintiff to give in evidence the writing of December 22, on the back of said lease, or oral testimony of the circumstances under, or consideration for, which said writing was executed and surrendered. The defendant had judgment. Was the ruling correct? The Court filed a written opinion on the point, by which it appears the Court

Saturday, June 1.

1861.

DENNY

V.

THE N. W.

May Term, concluded that the lessee held such an interest in the land leased as forbid his being ousted, unless he had relinquished or transferred that interest by a writing under seal, duly acknowledged, in pursuance of certain statutes. 1 R. S., § 5, CHRISTIAN P. 300; id. § 4, p. 233. The latter statute is as follows: UNIVERSITY. "Conveyances of land, or of any interest therein, shall be by. deed in writing, subscribed, sealed and duly acknowledged by the grantor, or by his attorney, except bona fide leases for a term not exceeding three years." A lessee of lands for less than three years has not, in our opinion, such an interest in the same as makes it necessary for him to surrender the same by an acknowledged and sealed instrument. A lease for three years, or less, need not be evidenced by such instrument. In other words, that kind or amount of interest in lands can be created in, or transferred to, a lessee by a lessor, without such instrument. If the estate, if it may be termed such, can be created without the use of such instrument, it can certainly be surrendered in the same manner it is created. And although a sealed instrument may be resorted to in making the lease, yet as it could have been made and would have been binding without it, the surrender of such interest need not necessarily follow the mode so resorted to in creating the interest. The consequence is that the rulings of the Court were erroneous. McKinney v. Reader, 7 Watts, 123; 2 Smith's Lead. Ca. 184.

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

J. M. LaRue and D. Royse, for the appellant.

R. C. Gregory and James Gregory, for the appellee.

DENNY V. THE NORTH WESTERN CHRISTIAN UNIVERSITY.

Suit upon a subscription to the stock of the North Western Christian University, made payable in lumber. The subscription was not dated, nor was the time of its execution averred.

Held, that as the date of the subscription was not material but was matter May Term, of form merely, the objection could not be raised by demurrer. Held, also, that the charter of the university authorized the subscription. Where the ground of objection to the admission of testimony is not pointed out to the Court, it is not error to overrule the objection.

1861.

DENNY

V.

THE N. W.

Where in a suit upon a written instrument there is no plea denying the CHRISTIAN UNIVERSITY. execution of it under oath, evidence tending to negative its execution is not admissible.

If the subscriber had complied with the requirements of the university charter by paying the interest upon his subscription and securing the payment of the principal, by reason of which he was not liable to be sued upon his subscription, the burden of proving those facts was upon him.

APPEAL from the Hendricks Common Pleas. WORDEN, J.-Suit by the University against Denny, upon a stock subscription, by which he subscribed for one share of stock, payable in lumber. Demurrer to the complaint overruled, and exception taken. Issue; trial by the Court; finding and judgment for the plaintiff, a new trial being refused.

The objections to the complaint are, that it does not disclose the date of Denny's subscription, and also that the corporation had no power to take any thing but a cash subscription.

The subscription set out does not contain any date, nor does the complaint show when it was made. But where time is not material, as it is not in this case, it is matter of form only, and the defect is not reached by demurrer. We are of opinion that the charter of the plaintiff sufficiently authorizes the subscription. Local Laws, 1849-50, p. 524.

A new trial was asked for on several grounds, such of which as are relied upon in the brief of counsel will be noticed.

The record shows that the plaintiff offered in evidence the subscription sued upon, and some oral testimony; and that the defendant "excepted to the evidence introduced, or so much thereof as disclosed the conversations had by said witnesses with Benjamin Robins, and the statement of Robins to each of the witnesses in the absence of the defendant, and to the introduction of the writing sued on, severally," which objection was overruled, &c. It does not appear that any ground of objection was stated, or pointed out to the Court; and it has been held in numerous instances by this Court, that

Tuesday, June 4.

May Term, it is not error to overrule an objection made in this general

1861.

DENNY

V.

THE N. W.

manner.

The defendant offered to prove by a witness, that he did not sign his name to the writing sued on, but only stated to CHRISTIAN John O'Kane, (the agent of the plaintiff, by whom the subUNIVERSITY. Scription was procured,) that he could put his name down on a piece of paper for one share of the capital stock, payable in lumber. That O'Kane stated that he had no authority to receive such subscription, but that he could take the defendant's name for one share, payable in lumber, and submit it to the trustees of the plaintiff. This testimony was rejected, and the defendant excepted. The testimony thus offered only tended to negative the execution, by the defendant, of the subscription sued on. There being no plea denying such execution under oath, the evidence was inadmissible and properly rejected. Unthank v. The Henry County Turnpike Co., 6 Ind. 125. In another part of the bill of exceptions it appears that the plaintiff, in rebutting, was permitted to give in evidence conversations between one Vickers and Robins, and Hamrick and Robins, over the objections of the defendant, made on the ground that their conversations were not with the defendant, and were irrelevant. The conversations we regard as unimportant,, and without stopping to inquire whether their admission was strictly correct, we think they may be stricken out and still leave ample evidence to support the finding.

The only other point made by the appellant is as to the sufficiency of the evidence to sustain the finding. The deficiency in the evidence is claimed to be a failure to prove that Denny had not paid the interest due on his stock, and had not secured the payment of two thirds thereof. If these facts would be a valid defense against the immediate collection of any portion of the subscription, by the provisions of the charter of the plaintiff, the onus of proving them, we think, was upon the defendant.

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

C. C. Nave and J. Witherow, for the appellant.

Wm. Wallace and Benjamin Harrison, for the appellee.