Lowry v. Cooper. But one point is made, and that is, that the finding and judgment are not sustained by the evidence, in this, that it is shown, that a part of the hogs weighed by Cooper, and held ready for delivery, were not obtained by him from Cosby and Truett, nor owned by them at the time said contract was entered into. Alexander v. Dunn, 5 Ind. 122. In other words, that the contract contemplated that Cosby and Truett then owned and possessed 50 hogs that were to be delivered in discharge of its terms. Such appears to be the purport of the case in 5 Ind., above cited. The writer of this opinion entertains serious doubts in regard to the correctness of the opinion pronounced in that case; but it is not necessary for the Court to review the question, there decided, in this case, because here, the evidence, we think, shows the construction which the parties themselves placed upon said writing. It is shown that the plaintiff went to the house of the defendant, and "asked him if he was willing that Cosby and Truett should assign their contract to him; defendant said he was perfectly willing to the transfer; that he did not care who filled the contract." It further appears that the defendant was at the house of Cooper, and fixed the day-a week then hence-that the hogs were to be delivered, which was complied with by Cooper, as to time, number and weight. Lowry did not appear to receive them, nor did he offer objections in any form. It appears to us, whatever legal construction might have been placed upon the language employed in the writing, aside from these surrounding circumstances, that, when viewed in the light of those circumstances, it is evident that it was not expected, by the parties to the transaction, that, by the terms thereof, only certain hogs were to be included therein. The statement of Lowry, that he did not "care who filled the contract," is scarcely reconcilable with the position now assumed, that he had contracted for the hogs of Cosby and Swails v. Coverdill. Truett. If such was the contract, the delivery of the specific article only would have filled the contract, and could have been accomplished alone by Cosby and Truett themselves, or through another. The contract could not, therefore, have been by them "transferred," without also transferring the hogs. Evidently this was not in contemplation by the parties in their conversations. Per Curiam.-The judgment is affirmed, with costs, and 5 per cent. damages. McDonald, Roache & Willson, for the appellant. SWAILS v. COVERDILL. TERMS OF COURTS.-Where the term of a Circuit Court begins on the 20th day of October, and may continue two weeks, if the business requires it, but in fact continues only one week, and the term of the Common Pleas Court, for the same county, begins on the 27th day of October, and is in fact begun on that day, it can not be objected to the validity of the latter term that it was holden during the term of the Circuit Court. PRACTICE IN SUPREME COURT.-Where an affidavit for a continuance is filed, but the record on appeal fails to show that any motion, based thereon, was made, or that the Court took any action in reference thereto, the alleged error in refusing a continuance will not be considered in this Court. SAME. Where error is alleged to have been committed in the admis sion of testimony, it will not be available in this Court, unless the ground of objection was stated to the Court below. APPEAL from the Decatur Common Pleas. Swails v. Coverdill. Per Curiam.-Action by Coverdill against Swails, to recover for services as attorney at law, in attending to a case upon indictment, in the Decatur Circuit Court, for an assault and battery, with intent to murder. Upon the issues, there was a verdict for the plaintiff. Motion for a new trial denied, and judgment, &c. The errors are thus assigned: 1. The term of the Court, at which the cause was tried, was not held at the time prescribed by law. 2. The Court erred in its refusal to continue the case. 3. Illegal testimony was allowed to be given over the defendant's objection. 4. The verdict is unsustained by the evidence. The Circuit Court, for Decatur county, as required by law, begun its fall term on Monday, October the 20th, 1862, and was allowed to continue in session two weeks, if business thereof required it; 1 G. & H. p. 282; but that Court adjourned before the expiration of the space of time so allowed, viz: on Monday, the 27th of October, and on that day the term of the Common Pleas, at which this case was tried and determined, was commenced in the usual form, and adjourned until Thursday, the 30th of October. Upon these facts, it is argued, that the Common Pleas, having commenced and held its October term within the period of time allowed by law for the holding of the Circuit Court, was illegally holden. We think otherwise. The Common Pleas was begun on the day fixed for its commencement by the statute. 1 R. S. G. & H. p. 279, sec. 11. It is true, an act, approved March the 1st, 1859, authorized the Common Pleas, when the Circuit Court was in session at the time the former should have been held, to hold its term on Monday succeeding the time of the Circuit Court; but that act was repealed by a statute passed March the 5th, 1859; Church v. Stadler, 16 Ind. 463; which repealing statute is still The State ex rel. Keen v. Wilson. in force. 1 G. & H. p. 281, sec. 23. There seems to be no reason why the term of the Common Pleas, commenced October the 27th, 1862, should not be deemed regular and legal. An affidavit, to delay the trial for a day, on account of the absence of the defendant, is set forth in the transcript; but no motion, founded on the affidavit, appears to have been made; nor does it appear that any action of the Court was had in respect to the affidavit. Hence, there is nothing in the second assigned error. And the third is equally unavailing, because, though certain testimony was admitted over the defendant's objection, the ground of objection was not stated to the Court. Nor can we, under the fourth assignment, adjudge whether the evidence is or not sufficient to sustain the verdict, because the record contains no sufficient averment, as required by rule 30 of this Court, "that this was all the evidence given in the cause." The judgment is affirmed, with costs, and 5 per cent. damages. Samuel Bryan, for the appellant. THE STATE ex rel. KEEN v. WILSON. BASTARDY-ACTION.-An agreement and admission by the mother of a bastard child, that provision for the maintenance of the child has been made to her satisfaction, will not bar an action by her, for such maintenance, against the father of the child, unless such agreement and admission are entered of record with the consent of the mother, and the mere fact that she filed her agreement and admission in Court, is not sufficient to bar her right of action. VOL. XXI.-18. The State ex rel. Keen v. Wilson. RULE 30.—To exclude the presumption of other evidence, a bill of exceptions should contain the words, "this was all the evidence given in the cause." APPEAL from the Delaware Circuit Court. DAVISON, J.-Prosecution for bastardy. The defendant, the present appellee, answered the complaint. His answer consists of two paragraphs. To the first a demurrer was overruled, and the plaintiff excepted; but to the second it was sustained. The first paragraph alleges, that, after the commencement of the prosecution, viz: on March the 31st, 1859, the defendant made provision for the maintenance of the bastard child to the satisfaction of Mariah Keen, the mother and relatrix; whereupon she made and filed in said Court her written admission of such provision, which is in this form: "Know all men, &c., that I, Mariah Keen, of, &c., in consideration of 50 dollars to me paid as follows: 10 dollars in hand, 20 dollars in three, and 20 in six months from date; said 40 dollars to be secured to me by notes, with approved security, the receipt whereof is hereby acknowledged-have released, and, by these presents, do forever release, to George Wilson, of, &c., all actions, and rights of actions, that I, at this time, have against him for bastardy, breach of marriage contract, or for any other cause whatever, either in law or equity, or otherwise, reserving the right of keeping the bastard child. "In witness whereof, I have hereunto set my hand and seal, this 15th of February, 1859. MARIAH KEEN, [SEAL]." Whereupon the defendant prays judgment that this cause be dismissed, &c. The plaintiff replied to this defence by five paragraphs. The defendant demurred to the fourth. The Court sustained |