the hands of a receiver to await the termination of the litigation, or by having Fordyce, Johnson, and Plummer enjoined from selling or in any way disposing of the property until it should be determined what disposition was to be made of the first execution of levy. These are questions, again, which we do not decide. What we do decide is that appellants cannot recover upon the bond, and that hence the court below properly sustained a demurrer to the complaint.

Judgment affirmed, at appellants' costs.

(108 Ind. 411)

BOWEN v. STATE.

(Supreme Court of Indiana. December 10, 1886.)

1. CRIMINAL LAW-APPEAL-ASSIGNMENT OF CAUSE FOR NEW TRIAL.

An assignment, as a cause for a new trial, that the finding or decision of the court is contrary to law, properly saves the point that a trial has been had without arraignment or plea.

2. SAME-ARRAIGNMENT AND PLEA-RECORD MUST SHOW-BILL OF EXCEPTIONS.

Where the record in a criminal case fails to disclose affirmatively that a plea to the indictment was entered, such record on its face shows a mistrial, and a mere recital in the bill of exceptions that the defendant pleaded "not guilty" is insufficient to supply the place of the proper entry. ELLIOTT, C. J., dissents.

Appeal from circuit court, Rush county.

Indictment for threatening with a deadly weapon. W. A. Cullen and Geo. W. Young, for appellant. for the State.

The Attorney General,

MITCHELL, J. Bowen was indicted, tried, and convicted, in the Rush circuit court, for having unlawfully drawn, and threatened to use, a certain dangerous and deadly weapon, to-wit, a gun, upon the person of one Edward Commons, contrary to the provisions of section 1984, Rev. St. 1881, A fine of $15 was assessed against him. The only error assigned upon the record here is that the court erred in overruling the appellant's motion for a new trial. The propriety of the ruling of the court in overruling a motion to quash the indictment is discussed in the brief. There being no error assigned calling in question the ruling on the motion to quash, that subject is not before us for consideration.

The next point upon which error is predicated is that it does not appear from the record that the appellant was arraigned, or that he pleaded to the indictment. All that appears in the record entry upon that subject is the following: "Comes the state by her attorney; comes also the defendant in person and by attorney, and moves the court orally to quash the indictment herein, which motion the court overrules, to which ruling the said defendant excepts. Thereupon this cause is submitted to the court for trial without the intervention of a jury."

The finding and judgment of the court were entered on the twenty-ninth day of December, 1885, and on the same day the defendant filed a bill of exceptions, into which was incorporated the evidence, the motion for a new trial, and the ruling thereon. After the title of the cause the bill so filed proceeds thus: "Be it remembered that on the twenty-ninth day of December, 1885, the above-entitled cause came on for trial in the Rush circuit court; it being the eighth judicial day of the December term of said court. The defendant pleading not guilty, the cause was, by agreement of parties, submitted for trial to the court; and the state, to sustain the issues," etc. The bill of exceptions, after setting out the evidence and the motion for a new trial, and the ruling thereon, is formally concluded, and signed by the presiding judge.

Conceding that an arraignment and plea were necessary in order to uphold the finding and judgment of the court, the learned counsel for the state

nevertheless contends (1) that the question argued in this connection is not properly presented, because it is not assigned as a cause for a new trial that the defendant was not arraigned, and did not plead to the indictment; (2) that because of the recital contained in the preface to the bill of exceptions, to the effect that the defendant pleaded not guilty, the record affirmatively shows that a plea was duly entered, and that, having pleaded not guilty, it will be inferred that an arraignment was waived by the appellant.

In respect to the proposition that the question is not properly presented by the record, nothing more need be said than that an assignment as a cause for a new trial, such as the second cause assigned in this case, that the finding or decision of the court is contrary to law, is a proper method of saving the point that a trial has been had without arraignment or plea. Tindall v. State, 71 Ind. 314; Shoffner v. State, 93 Ind. 519.

The second proposition presents a question of more importance. Under the decisions of this court it can no longer be regarded as a subject of controversy that, where the record in a criminal cause fails to disclose affirmatively that a plea to the indictment was entered either by or for the defendant, such record on its face shows a mistrial, and that the proceeding was consequently erroneous, to say the least. Graeter v. State, 54 Ind. 159; Fletcher v. State, Id. 462, and cases cited; Tindall v. State, supra; Shoffner v. State, supra; Johns v. State, 104 Ind. 557; S. C. 4 N. E. Rep. 153.

Section 1763, Rev. St. 1881, enacts that in all criminal prosecutions "the defendant may plead the general issue orally, which shall be entered on the minutes of the court." This is to the end that the plea may be entered on the order-book in which the proceedings of the court are recorded, and signed by the judge. Tindall v. State, supra. In this manner an authenticated and permanent memorial of one of the essential elements to the validity of a criminal trial is provided by statute. The making and preserving of this record is a matter of concern to the accused. It may afford to him the only available evidence in case it thereafter becomes necessary to plead or prove a former acquittal or conviction of the same offense. May this record be supplied by a recital, such as that above set out, in a bill of exceptions filed in the case after the trial has been concluded? That it cannot necessarily results from two considerations: The first is that the statute in terms requires that the plea shall be entered on the minutes of the court, so that it may be entered on the order-book, and that by this means the evidence that a plea was entered may not be subject to the chance of loss or misplacement, as is the case with a mere paper among the files of the cause; second, it is no part of the office of a bill of exceptions to supply that which is essential to the validity of, and which the law requires to appear upon, the record of the court. A definition of a bill of exceptions, which embraces the provisions of both the Civil and Criminal Codes upon that subject, runs thus: "A formal statement, in writing, of exceptions taken to the opinion, decision, or direction of a judge, delivered during the trial of a cause, setting forth the proceedings on the trial, the opinion or decision given, and the exception taken thereto, and sealed by the judge in testimony of its correctness." 2 Work, Pr. § 1075; Galvin v. State, 56 Ind. 51; Redinbo v. Fretz, 99 Ind. *458.

It has often been held that where, during the progress of a trial, time is given until after the term to file a bill of exceptions, the order granting time must appear of record, and that the record of such order cannot be supplied by reciting in the bill that time had been given. Such a recital, in a bill, it has been held, will not, without other competent proof, authorize the making of a nunc pro tunc order granting time. Schoonover v. Reed, 65 Ind. 314; Nye v. Lewis, Id. 326; Jones v. Jones, 91 Ind. 72, and cases cited. In short, it may be said that those things which, in order to the validity of the judgment or proceeding, are required affirmatively to appear upon the record, cannot be omitted therefrom, and then be supplied by bills of exceptions

afterwards filed in the case. It could, with equal propriety, be urged that the verdict of a jury or finding of the court might be omitted from the record, and that such omission might be supplied by a recital in a bill of exceptions, as that the plea of not guilty might be thus omitted and supplied. In either case the record on its face would show a mistrial, and perhaps be a nullity. It would be a mere accident if any one examining to ascertain whether the record of the conviction would afford proof, in a subsequent trial, of a former conviction of the same offense, would happen to discover, in a bill of exceptions, that there had been a plea or a finding before the entry of judgment.

It was error not to grant a new trial for the second cause assigned; and, because the record in this case might not bar a second prosecution for the same offense, we are of opinion that it cannot be said, of the irregularity in failing to enter the plea of not guilty, that it was a merely harmless error. The judgment is therefore reversed.

ELLIOTT, C. J., does not concur in this opinion.

(108 Ind. 415)

STOOTS v. STATE.

(Supreme Court of Indiana. December 11, 1886.) JURY-COMPETENCY-PROSECUTION FOR SELLING INTOXICATING LIQUORS-PREJUDICE-IN

TERROGATORIES AS TO.

The mere fact that a man may be opposed to the policy of permitting the sale of intoxicating liquors, and may have some prejudice against those engaged in their sale, does not necessarily disqualify him from serving as a juror on the trial of a prosecution for selling intoxicating liquors; but where he states that he would not give the testimony of one engaged in such business as much weight or credit as if he were engaged in some other business, he is prima facie incompetent to serve as a juror in such cause, and the trial court should, in the exercise of a sound discretion, permit him to be questioned upon that subject.

Appeal from circuit court, De Kalb county.

Information for selling intoxicating liquors on Sunday.

H. Colerick, D. D. Moody, and W. L. Penfield, for appellant. H. C. Peterson and Chas. Emanuel, for the State.

NIBLACK, J. Stoots, the appellant, was prosecuted in the court below, upon affidavit and information, under section 2098, Rev. St. 1881, for selling intoxicating liquor on Sunday, to be drunk as a beverage. A jury found him guilty as charged, and a judgment of conviction was rendered upon the verdict. When the cause was called for trial, and a jury was about to be impaneled, it was admitted by counsel for the state that the appellant was, at the time the offense was charged to have been committed, and still was, engaged in the business of selling intoxicating liquors by retail under a license issued to him by order of the board of commissioners of De Kalb county. One William J. Bowman was then called as a juror, and, after being duly sworn to answer questions touching his qualifications to act in that capacity, one of the appellant's attorneys inquired of him as follows: "I will ask you to state whether, if the defendant were to testify in his own behalf in this cause, you would allow less weight and credit to his evidence in his own behalf than you would if he were not engaged in the business of selling liquor ?" To this Bowman answered: "I think I should." Thereupon counsel for the appellant challenged Bowman for cause, but the circuit court held that the answer thus given did not disqualify him from serving as a juror in the trial of the cause, and overruled the challenge. The circuit court also refused to permit a similar question to be propounded to two other persons called to serve as jurors, to which exceptions were reserved.

The pertinency of the question so addressed to Bowman, and the materiality of his answer as affecting his competency as a juror, have been made questions for decision upon this appeal. Our statute makes it a misdemeanor to sell intoxicating liquor to be drunk as a beverage, on Sunday, and imposes many other restrictions upon the sale of intoxicating liquor not imposed upon other branches of business. It has always been the policy of the law in this state to treat the business of selling intoxicating liquors as exceptional, and as one requiring regulation and restraint, and it is a matter within the common knowledge of all that the propriety of permitting the sale of intoxicating liquors as a beverage, under any circumstances, has long been, as it still is, a subject of very earnest discussion, and upon which there is a great diversity of opinion. The mere fact, therefore, that a man may be opposed to the policy of permitting the sale of intoxicating drinks, and may have some prejudices against those engaged in the sale of intoxicating liquors, does not necessarily disqualify him from serving as a juror in a prosecution for the unlawful sale of that class of liquors. This has been, in effect, heretofore held by this court. Chandler v. Ruebelt, 83 Ind. 139; Shields v. State, 95 Ind. 299. The same doctrine has also been recognized by the supreme court of Illinois. See Robinson v. Randall, 82 Ill. 521; Meaux v. Whitehall, 8 Bradw. 173.

But, so far as we are advised, it has never been held that a person called to serve as a juror, who admits that his prejudices against a business, recognized as lawful, are so fixed that he night not, and probably would not, give to the testimony of a party engaged in it as much weight and credit as he would if the party were employed in some other business, is a competent juror to try a cause involving the business against which such prejudices are admitted to exist. On the contrary, the fair inference, from the drift of the authorities bearing on the general subject, is that a person so moved by his prejudices is at least prima facie incompetent as a juror to try such a cause. See Robinson v. Randall, Meaux v. Whitehall, Chandler v. Ruebelt, and Shields v. State, above cited; also Queen v. Hepburn, 7 Cranch, 290; People v. Allen, 43 N. Y. 28; Chicago & A. R. Co. v. Adler, 56 Ill. 344; Sam v. State, 13 Smedes & M. 189; Curry v. State, 4 Neb. 545; Block v. State, 100 Ind. 357. The answer of Bowman to the question addressed to him in this case did not indicate any leaning against, or ill will or aversion towards, the appellant personally, and hence did not present a condition of mind amounting to actual bias against him; but did, as we believe, manifest an implied bias against him as a party in the cause, as well as against his defense, within the spirit and meaning of that term as defined in the case of Block v. State, above referred to.

It manifested a bias against all persons engaged in the same business, and consequently an implied bias against the appellant as the defendant in this prosecution. The precise formula which may be adopted in the examination of a person called to serve as a juror, for the purpose of testing his competency, and the extent to which such an examination may be carried, necessarily rests very largely in the discretion of the nisi prius court; but such an examination ought not to be permitted to take an indefinitely wide range, concerning merely collateral or incidental matters, having some possible connection with the cause; and, in that connection, it is suggested that the question addressed to Bowman, as above, was to a matter too collateral, as well as too remote, to be material as affecting his competency as a juror, and that, on that account, his answer did not disclose any bias against the appellant on the merits of the cause. There is some pertinency in this suggestion, but, upon full consideration, we are of the opinion that, in view of the appellant's right to challenge peremptorily, as well as for cause, and, as incident to that right, the propriety of his first being able to ascertain the proposed juror's preconceived opinions on the subject of the liquor traffic, including his estimate of

the character of persons engaged in it, the question was not an improper one; that, in fact, the inquiry implied by the question was one the appellant was entitled to make of all the persons called as jurors.

If the examination of Bowman had been further continued, and his subsequent answers had disclosed that, notwithstanding his apparent bias against those engaged in the sale of intoxicating liquor, he could have given the evidence at the trial all the weight to which it was entitled, and have tried the cause impartially, upon its merits, a different question would have been presented. See Shields v. State, heretofore cited; Butler v. State, 97 Ind. 378; People v. Carpenter, 102 N. Y. 238; S. C. 6 N. E. Rep. 584. The judgment is reversed, and the cause remanded for a new trial.

(108 Ind. 424)

CLAYPOOL and others v. GISH.

(Supreme Court of Indiana. December 11, 1886.)

1. ACTION OR SUIT-CLAIM AGAINST DECEDENT'S ESTATE-JOINDER OF TRIRD PARTY AS DEFENDANT-APPEAL.

Before a party can be required to answer to a claim filed against the estate of a deceased person, it must be made to appear that he and the decedent were jointly liable by virtue of a contract which furnishes the basis of the pending claim; and the right of such party to appeal under the Indiana Code of Civil Procedure cannot be taken away by attempting to make him a party defendant to the claim, where there is no joint contract liability with the decedent.

2. ATTORNEY AND CLIENT-ACTION BY CLIENT TO RECOVER MONEY-DEMAND AND REFUSAL.

An action cannot be maintained against an attorney to recover money alleged to be in his hands until a demand has been made by the client, and a refusal to pay on the part of the attorney.

Appeal from circuit court, Fountain county.

T. F. Davidson and Claypool & Ketcham, for appellants. Nebeker & Dochterman, for appellee.

MITCHELL, J. It appears from the record of this cause that on the tenth day of September, 1884, a claim theretofore filed by the appellee in the clerk's office was transferred to the issue docket of the Fountain circuit court. The claim was in the form following:

"Estate of Joseph Ristine and George McWilliams, Deceased. "Solomon Claypool, William A. Ketcham, and John McManomy, to Abraham Gish, Dr.:

"March 1, 1883. To claims in favor of John McManomy, and assigned to Abraham Gish, against the Indianapolis, Bloomington & Western Railway Company, collected by said Ristine & McWilliams, through Solomon Claypool and William A. Ketcham, composing the firm of Claypool & Ketcham. Amount due A. Gish, $164.09."

*

The claimant, in an affidavit attached to the claim stated as above, deposes and says "that the above claim in favor of Abraham Gish, against the estate of Joseph Ristine and George McWilliams, is correct," etc.

Subsequently, Claypool & Ketcham appeared specially, and moved the court to dismiss, as to them, on the ground that on the face of the claim, as it is stated on the record, no cause appeared for making them parties to the action or proceeding. This motion was overruled. On the fifteenth day of December, 1884, the claimant filed a second paragraph of complaint. The facts therein stated are in substance that, on a given date, McManomy held certain claims against the Indianapolis, Bloomington & Western Railway Company, which were placed in the hands of Ristine & McWilliams for collection. Ristine & McWilliams sent the claims to Claypool & Ketcham, attorneys, re