
    Ball v. M’Call.
    In a suit for work and labour performed for the defendant on the “ Wabash and Erie canal,” evidence of work done for him on the canal south of the Tippecanoe river is admissible.
    Tuesday, May 25.
    ERROR to the Fountain Circuit Court.
   Sullivan, J.

Assumpsit for work and labour done and performed by the plaintiff for the defendant on the Wabash and Erie canal. The suit was commenced before a justice of the peace. Plea, the general issue. On the trial in the Circuit Court, the plaintiff offered to prove that he had performed labour for the defendant, at the time and in the manner mentioned in the cause of action, on the “ extension of the Wabash and Erie canal” below the mouth of the Tippecanoe river, at Portland in Fountain county, to which evidence the defendant objected, because the cause of action was for work done on the “ Wabash and Erie canal.” The Court sustained the objection, and would not allow the plaintiff to prove any work and labour done for the defendant, except on the Wabash and Erie canal above the mouth of Tippecanoe river. Judgment was thereupon given for the defendant.

It is a matter of public notoriety, that previous to the passage of the law providing for a genéral system of internal improvement; the western termination of the Wabash and Erie canal was at the mouth of the Tippecanoe river. By the act of January 27th, 1836, the board of internal improvement was directed to provide, amongst other things, for “ an extension of the Wabash and Erie canal from the mouth of Tippecanoe river, down the valley of the Wabash, to Terre Haute,” &c. That law, in more places than one, describes the work so to be constructed as a part of the Wabash and Erie canal. By the 6th section of the act of February 6th, 1837, so much of the Wabash and Erie canal as lies west of the mouth of the Tippecanoe, is called and designated as the Wabash canal, &c.; but in the same section, the part which is required to be designated as the Wabash canal is still referred to as “ so much of the Wabash and Erie canal.” By reference to subsequent acts of the legislature, we observe that that portion of the canal which lies west of the mouth of the Tippecanoe river, is called indiscriminately the “ Wabash canal” and the “ Wabash and Erie canal;” Acts of 1839 pp. 53, 55, 78; from which we infer that it has been uniformly considered by the legislature but as a continuation of the Wabash and Erie canal.

With this view of the case, we think the Circuit Court erred in rejecting the plaintiff’s proof. He performed labour for the defendant on the canal below the mouth of the Tippecanoe river, and sued for work and labour done on the Wabash and Erie canal. For the reasons given, there was no variance between the allegation and the proof offered.

R. A. Lockwood and D. Mace, for the plaintiff.

J. Pettit, for the defendant.

Per Curiam.

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