Indiana American. [volume] (Brookville, Ind.) 1865-1872, 1868-05-01
forths Americas.
REPLY TO "a. o. H.

1aufei correspondent 10 cast stain on the
Judicial integrity Of tho Hon. John Il,
kibbey, Judge Of the Court Of Common
Pleas, demands and should receive the
unqualified condemnation and contempt Of
every man; and ia order thst the whole
community may see and know bow to ap-
preciase said correspondent, 4 propose to
review HE communication, and give cor.
rect statement Of the facts Of the case.
LIST. Your correspondent says that 1--WE
find 10 our statute books law requiring
all Railroad companies 10 our State to
securely fence along the line of their
roads" Ia this statement the writer eth
er shows his ignorance Of the law or his
dishonesty. There is no such law in the
State OF Indiana. The only law We have
IN relation to the fencing Of Railroads is
found Ia the acts oil 1863, page 27 See,
Tan act to give compensation TO the
owners Of animals killed. &c."--and pro-
ydes that this act shall pot apply to any
Railroad securely fenced. aud such fence
properly maintained by such company,
lessee, assignee, receiver, or other person
running the came. This act docs not re-
quire any Que 10 fence Railroads, but only
eremph from liability for animals killed
where such roads are securely fenced.
I'd. Your correspondent says: II was
present at the last term Of the Common
Pleas Court Of Franklin County watching
case ground through under the forcgo.
ing law" II would have been more man
y aud honest Gas the sequel will show.) il
he had said be was grinding his own case
through" aud iailedto succeed, owing to
his own ignorance and stupidity.
3D.. He proiends TO give history Of the
case from It's commencement before the
Justice 10 its 6ual termination in said
Court, but he does not state the facts.
They are Us follows: lie began his suit be-
fore j. r. on al Insufficient complaint.
q. q. Bipkley Esq. the attorney for the
w. w V.R II. Company, domurred to the
complaint. Correspondent by his special
pleading (pettifoggiug) succeeded in mis-
leading the Justice, who overruled the
demurrer; thereupon jury was empan.
nelled and sworn TO try the cause. The
Plaintiff introduced his evidence. but
failed to prove enough to eulitle him to a
verdict; but again by his special pleading.
(pettifogeine) he misled the jury and OBJ
tanned verdict. Thereupon the defen-
dant appealed the case to the Common
Pleas Court. When the case was called
in said Court, the defendants attorney
called up the demurrer, aud notwithstand.
ing pluintiff resoried to all his special
pleading, (pettifoggiug,) the Court sus-
tanned the demurrer, but gave the plaintiff
leave TO amend his complaint, which the
plaintiff. after some delay, found himself
unable to do in person. Thereupon he en-
ployed Adams 4 Berry to set the case
right, and get him into Court, which they
speedily did; aud when he found his case
was again 10 Cour, all right, he informed
his attorneys that he had no further u.e
for them. Thereupon they Informed the
Court that they had nothing further to do
with the case thep being called for trial
Plaintiff and defendants attorney agreed
to submit the case TO the Court without
the intervention Of a jury. Plaintiff then
introduced his evidence, aud proved, as
he says, by one Of bis witnesses, "the
Railroad crosses the tow path ofthe Canal
at the point where the hog was killed"
This was the evidence that was fatal to
correspondents case. BY law Canal, in
Guiding the tow path thereof, is public
highgoy. and the Courts are bound TO take
judicial notice OF that fact. Now this evi.
dence of the plaintiff shows this was q
Canal, and that his 81 hog was killed at n
point whore the II. X. Company could not
fence their road at this point; they could
not obsnuct the Cunal or tow.path with a
fence. The evidence Of a public crossing
TO which plaintiff referred, was u common
road and street crossing near the Depot,
and had nothing 10 do with The X. Il.
crossing at tow path OF the Canal which
his witness spoke Of.
Plaintiff did not offer any evidence ten
ding TO slow that the Cannl had beeu
abandoned as canal, OF was washed away.
This kind OF evidence would have mced
his case. lie had not sense sufficient 10
understand the law or evidence OF his case.
The Court could not presume that the
Canal had been abandoned, or that il was
washed away. The defendant had set up
by way Of nm answer, us defense, the
fact that the H. II. at the point where this
81 hog was killed, was on the Canal, "a
public highway aud ut place not prop
er to be fenced. The Court on demurrer
held this answer to be a good defense to
the action. Plaintiff proved defendants
answer to be true, (as he admits in his
s,atemeni.) This bong the fact, the Court
could not do otherwise than lind us 1t
did.
The statement Of your correspondent
about the mdmrdr of the Judge leaving
the Court House, i incorrect. Court was
formally adjourned by the Sheriff, under
the directions of the Judge. before be
1.-THE judge left the Courtroom. The
statement OF your correspondent as to the
finding Of the Court next morning, is in
correct, but was as follows. In giving bis
decision the Judge said: "The plaintiff
had proved the hog to be his property;
had proved the Killing by the engine Of
the defendant running on their road in
the County, and that the road was not
fenced. BIT he had olso proven that it
was done on the Canal ut point where
tho II. Il. crossed the tow path Of the
Canal; that plaintiff had not offered any
evidence to contradict or explain the man
ner in which the II. X. Company was us
ing the Canal; that be was bound TO take
judicial notice that Canal was a public
highway; that he could not presume that