1852. THE TERRE so by the act authorizing the construction of the bridge Nov. Term, in question, it being a condition implied at least, if not expressed, that the corporation, in building the bridge, HAUTE DRAWshould create no obstruction to the navigation of the river. We think this instruction, qualified as it was by several subsequent instructions, cannot be objected to, as, whether the ordinance of 1787 is now in force or not, the charter does not authorize the corporation to create any obstruction to the navigation of the river, in constructing their bridge. It does not, however, follow, that any pier or other necessary work placed in the bed of a river to support a bridge, against which a boat might run and be damaged, would be such an obstruction as is here contemplated. By an obstruction we mean such an impediment to the navigation that boats in passing along the stream could not, by the use of skill and care, avoid being injured; and the jury were very clearly informed that this was the sense in which the term was used in the instructions given. They were told that to entitle the plaintiffs to recover, the latter must show that they had made use of ordinary skill and care to prevent being injured, and, at the request of the defendant, an instruction was given, that if a skillful and careful pilot could have steered the flat-boat under the bridge safely and without injury, and the same was lost through negligence, carelessness, and unskillfulness, the jury should find for the defendant. It is probably sufficiently clear from the evidence that the piers of the bridge ought not of themselves to be considered an obstruction to the navigation, but the relevancy of these instructions is supported by the evidence relative to the logs which had drifted against one of the piers, and to the sunken flat-boat. It is manifest from the evidence and the amount of the verdict, that the jury found that the bridge, with the drift logs and sunken boat, did create such an obstruction as to render the defendant liable for the damages occasioned by the loss of the plaintiffs' flat-boat, and as that was a question for the determination of the jury, and the inVOL. IV.-6 BRIDGE COM PANY V. HALLIDAY. Nov. Term, structions relative to it are not objectionable, we cannot 1852. say the finding as to this point was wrong. THE TERRE HAUTE DRAW PANY V. HALLIDAY. The Court refused to give an instruction, requested by BRIDGE COM- the defendant, to the effect that the plaintiffs could not recover damages for the detention of their steamboat in the ice, after passing the bridge, and before getting out of the Wabash river. We think it sufficiently appears, however, that the jury did not estimate any damages for that detention. The jury, in estimating the damages, appear to have confined themselves wholly, or almost wholly, to the loss sustained by the sinking of the flat-boat. That boat, with the oats and wheat, were worth, at the lowest prices stated, 3866 dollars, and the proceeds of the sale of the whole, after the boat was sunk, deducting the expenses, amounted to 120 dollars, leaving the loss 3,746 dollars. This amount of loss is within 4 dollars of the amount of the verdict, and as the plaintiffs, if they were entitled to recover any thing for the destruction of this boat, were entitled to the damages they had actually sustained by its loss, we think we are not at liberty to disturb the judgment; though if damages had been given for the detention of the steamboat in the ice, or it did not clearly appear that damages were not given for that detention, we are inclined to think that the judgment must have been reversed for the refusal of the Court to give the instruction relative to the measure of damages which was requested by the defendant. Per Curiam.-The judgment is affirmed with 1 per cent. damages and costs. J. P. Usher, for the appellant. G. S. Orth, A. M. Crane, and E. H. Brackett, for the appellees. REYNOLDS v. ROCHESTER. Money obtained by fraud may be recovered back in assumpsit. Nov. Term, 1852. REYNOLDS V. ROCHESTER. In an action to recover back money obtained by fraud, proof that the defendant obtained a part of the money for the use of a third and innocent person, is no defence against the recovery of that part. APPEAL from the Tippecanoe Court of Common Pleas. Saturday, January 1, PERKINS, J.-Assumpsit by William K. Rochester against 1853. William F. Reynolds, upon the common counts. Plea, the general issue. Jury trial, and verdict and judgment for the plaintiff. It was insisted upon the trial, and evidence was given tending to establish the fact, that the money sought to be recovered by this suit had been obtained by the defendant from the plaintiff by fraud. Money obtained by fraud may be recovered back in an action of assumpsit. McQueen v. The State Bank of Indiana, 2 Ind. R. 413. Whether that in this case was so obtained, was a question for the jury, and was fairly submitted to them upon the evidence. We cannot disturb their verdict. The point is made, that though Reynolds obtained the money by fraud from Rochester, still he obtained a part of it for the use of a third and innocent person, and hence should not be liable for that part himself. We do not think he should be allowed, after obtaining money from another by fraud, to say that he did not use all the money he so obtained for his own advantage, but shared it with an innocent person. We think the judgment below should be affirmed. Per Curiam.-The judgment is affirmed with 3 per cent. damages and costs. Z. Baird, for the appellant. R. C. Gregory and S. A. Huff, for the appellee, CASES ARGUED AND DETERMINED IN THE SUPREME COURT OF JUDICATURE OF THE STATE OF INDIANA, AT INDIANAPOLIS, MAY TERM, 1853, IN THE THIRTY-SE- PUETT and Others v. THE State Bank. A plea which professes to answer a whole count, but answers only a part, is bad on general demurrer. To the declaration upon a promissory note, the defendant pleaded as to part, &c., that the plaintiff agreed to assign him a judgment against one B. of the amount which the plea professed to answer, and that as to so much, &c., that agreement was the consideration of the note; that the judgment was assigned, but "without recourse" upon the assignor; and so the consideration as to so much, &c., had failed. Held, that the plea was bad, it not appearing that the defendant had placed or offered to place the parties in the position they occupied prior to the assign ment. ERROR to the Parke Circuit Court. STUART, J.-Debt on a promissory note. Five pleas filed, leading to issues of law and fact. Trial by the Court, and judgment for the plaintiff below. The third and fifth pleas alone are before us on demur Note-Judge Roache, owing to indisposition, was absent during the first five days of this term. Monday, |