concerning drainage." The title was held to be sufficient. In Hedderich v. The State, 101 Ind. 564, 1 N. E. 47, 51 Am. Rep. 768, the title in dispute was "An act concerning public offenses and their punishment." This was held to come within the requirements of the Constitution, and was sufficiently comprehensive to embrace all offenses of a public nature. In Barnett v. Harshbarger, 105 Ind. 410, 5 N. E. 718, the contention was that the statute entitled "An act concerning husband and wife" was not sufficiently expressed in the title. The court, by Elliott, J., in that appeal said: "We do not deem it necessary to enter upon a discussion of this question, for we regard it as conclusively settled against the appellant." As to the sufficiency of the titles of various acts of the Legislature, see the following cases: Maule Coal Co. v. Partenheimer, 155 Ind. 100, 55 N. E. 751, 57 N. E. 710, and cases there cited; State v. Bailey, 157 Ind. 324, 61 N. E. 730, 59 L. R. A. 435, and cases there cited. In the latter appeal an act entitled "An act concerning the education of children," approved March 8, 1897 (Acts 1897, p. 248, c. 165), was involved. The objection, among others, was that the title of the act in question was so vague and uncertain as to render it nugatory. This court, in considering the question as there presented, said: "We think the title of the statute in question specific enough to guard against the evils intended to be prevented by the Constitution. It sufficiently indicates 'some particular branch of legislation as a head under which the particular provisions of the act might reasonably be looked for.' The subject of the act, as expressed in the title, is 'the education of children.' Is this any less specific than 'drainage' or 'highways'?" In Bright v. McCullough, 27 Ind. 223, this court, in passing upon the title of the statute therein involved, among other things said: "The words 'an act concerning highways' would express but a single subject, and yet would constitute a comprehensive title, under which almost any desired provision relating to highways might be enacted."

We conclude that the statute in controversy is not open to the objections urged against its validity, and the judgment is therefore affirmed.

STATE ex rel. STRASS v. TANCEY. (Supreme Court of Indiana. Dec. 9, 1903.) QUO WARRANTO-INFORMATION-SUFFICIENCY.

1. An information in the nature of a quo warranto to oust defendant from the office of justice of the peace, which avers substantially that plaintiff and another were duly elected and commissioned as justices in a certain township, and that defendant, who was not elected, obtained a certificate of election and a commission, and proceeded to perform the duties of justice in such township, but which fails to

TL See Quo Warranto, vol. 41, Cent. Dig. § 51.

show that the office which defendant claims and the duties of which he performs is the office to which relator is entitled, is insufficient.

Appeal from Superior Court, Allen County; O. N. Heaton, Judge.

Proceeding in the nature of a quo warranto by the state on the relation of Emanuel Strass against Michael Tancey. From a | judgment for defendant, relator appeals. Affirmed.

T. W. Wilson, J. B. Harper, and Olds & Doughman, for appellant. Breen & Morris, for appellee.

DOWLING, J. This is a proceeding in the nature of quo warranto by the state on the relation of Emanuel Strass against Michael Tancey to oust the latter from the office of justice of the peace of Wayne township, in Allen county. A demurrer to the information was sustained, and, the plaintiff refusing to amend, judgment was rendered for the defendant. Error is assigned upon this rul

ing.

The information stated, in substance: That the relator was, on November 4, 1902, and ever since has remained, a bona fide resident and elector of Wayne township, Allen county, Ind., and eligible to the office of justice of the peace of said township. That the terms of office of the several justices of the peace of said township expired November 10, 12, and 14, 1902. That by a change of the statute fixing the number of justices of the peace in said township only two justices were to be elected in and for said township at the general election held on November 4, 1902. That at said election the said relator, one Benjamin W. Skelton, the defendant, Michael Tancey, and one Harry F. France were candidates for said office, and each of them received votes therefor. That said Skelton received 4,643 votes, the relator, Emanuel Strass, received 4,360 votes, the defendant, Michael Tancey, received 4,143 votes, and Harry F. France 4,104 votes at said election for justice of the peace of said township, and that each of them received a higher number of votes therefor than any other person for whom votes were cast for the said office. That at said clection the relator and said Skelton each received a higher number of votes for said office than did either the said Tancey or the said France. That returns of the votes so cast were regularly made by the several boards of election of said township to the proper officers constituting the canvassing board. That said board canvassed the said votes, and declared that the relator and the said Skelton had each received a higher number of votes at said election for the office of justice of the peace of Wayne township than either the said Tancey or the said France, who were the other candidates voted for; and that said relator and said Skelton were each duly elected to the office of Justice of the peace of said township. That said board of canvassers issued to said re

lator and said Skelton each a certificate of election to such office, and also certified such election of said relator and said Skelton to the clerk of the Allen circuit court. That said clerk certified the election of said relator and said Skelton to the Secretary of State, and that thereupon the Governor of this state issued to the relator and to Skelton each a commission to serve as justice of the peace for said township for the term of four years from November 14, 1902. That the relator on November 17, 1902, duly qualified as such justice of the peace by executing his bond and taking the oath prescribed by law, as also did said Skelton. That the board of commissioners of said Allen county, by order entered of record, designated No. 125 East Main street, in the city of Ft. Wayne, in said township, as the place where the relator should hold his office; and that the relator accepted said office, and thereupon entered upon the discharge of its duties at the place so designated. That the board of commissioners, without authority of law, issued to the defendant, Tancey, also a certificate of election, and certified the fact to the clerk of the Allen circuit court. That the clerk certified the same to the Secretary of State, and that the Governor issued to Tancey a commission as a justice of the peace of Wayne township for the term of four years from November 14, 1902. That the said Tancey thereupon qualified as such justice of the peace, and thereby unlawfully intruded into and usurped the functions of said office, which belong exclusively to the relator and said Skelton. That said Tancey was an acting justice of the peace of said Wayne township for four years next preceding November 14, 1902, and was then, and yet is, in possession of the books, dockets, and papers belonging to a justice of the peace of said township, and that he continues to perform the duties of a justice of the peace for said township, and to collect and appropriate the fees in cases brought in his court, which have amounted to $100, although the relator and said Skelton have the exclusive right to hear and determine such cases and to take the fees therein. That before the commencement of this action the relator demanded from said Tancey the books, dockets, and papers of said office in the possession of said Tancey, but the demand was refused; and that Tancey continues to perform the duties of a justice of the peace of said Wayne township, to the damage of the relator $200. The information concludes with a demand that Tancey be adjudged an intruder into and usurper of the said office; that he be ousted therefrom; that he be ordered to surrender to the relator the books, dockets, and papers in his possession belonging to the office of justice of the peace of said township; and that the relator have judgment for $200 and his costs. The grounds of the demurrer were that the information did not state facts sufficient to constitute a cause of action, and

that there was a defect of parties Skelton being a necessary relator or defendant.

Assuming the truth of all the matters stated in the information, the situation is this: Two justices of the peace for Wayne township, Allen county, were to be elected at the general election held November 4, 1902, and the relator and Skelton were regularly chosen and commissioned as such officers. A third, who was not elected, obtained a certificate of election and a commission, and proceeded to perform the duties of a justice of the peace in the same township. It does not appear that he holds, or claims to hold, the office to which the relator was elected, or that he has intruded into or usurped such office. He may assert title to the office to which Skelton was elected, or he may take the position that the township was entitled to three justices of the peace, and that he received the next highest number of legal votes after the relator and Skelton. In any event, the information fails to show that the office which the appellee claims, and whose duties and functions he performs, is the one to which the relator is entitled. As the information was filed by Strass on his own relation, it was incumbent on him to show by proper averment not only his interest in the office which is the subject of the information, but also that the defendant had intruded into or usurped that office. He does show his interest in an office, but he does not show that the defendant has in any manner intruded into that office, or exercised any of its functions. By the demurrer and brief of the appellee there is in question, and the question is duly presented, the constitutionality of the act of March 6, 1899, p. 510, Burns' Rev. St. 1901, §§ 1484a-1484e, but, as the information must be held insufficient upon other grounds, it is not necessary to decide the question of the validity of the statute.

Judgment affirmed.

EWING v. EWING et al. (Supreme Court of Indiana. Dec. 8, 1903.) APPEAL-WAIVER OF ERRORS-ESTOPPEL.

1. Where a partner, after judgment was entered against him decreeing certain land to be firm property, and ordering a receiver to take possession of and sell the same, and collect the rents and profits until sold, entered into an agreement with the other parties to the action, by which he was to have the rents to a certain date, and was to surrender any claim to such rents thereafter, under which agreement he received the rents specified, he thereby waived any error in such judgment.

Appeal from Circuit Court, Huntington County; James C. Branyan, Judge.

Action by James Ewing against William Ewing and another. From a judgment for plaintiff, defendant Ewing appeals. Transferred from Appellate Court under Burns' Rev. St. 1901, § 1337u. Dismissed.

St. 1901, § 349. The approved form of a demurrer to a plea in abatement is that the plea does not state facts sufficient to quash the complaint or writ. In a criminal cause the proper form would be that the plea did not state facts sufficient to quash the indictment, information, or writ, or to abate the action. 1 Chitty, Pl. 698. It is never proper to allege that a pleading does not state facts sufficient to constitute a complaint, an answer, or a reply. Pine Township v. Huber Co., 83 Ind. 121; Grubbs v. King, 117 Ind. 243, 20 N. E. 142; Firestone v. Werner, 1 Ind. App. 293, 27 N. E. 623. The supposed demurrer did not present any statutory ground of objection to the answer in abatement, and no question of law could be reserved upon the decision of the court overruling it.

Judgment affirmed.

GWINNUP v. SHIES.

(Supreme Court of Indiana. Dec. 10, 1903.) CONTRACTS-PERFORMANCE OF LABOR-ACCEPTANCE-PLEADING-GENERAL DE

NIAL-DEFENSES ADMISSIBLE.

1. In an action for services performed in the construction of a walk and steps, defendant may, under the general denial, prove plaintiff's failure to execute the work in a workmanlike manner, as required by the contract.

2. That defendant walked from necessity over a walk and steps from his door to the street does not show a constructive acceptance of plaintiff's work in building such walk and steps.

3. One who furnishes the material and labor for a walk and steps, but performs the work so that the walk is lowest in the middle, and collects rain water half an inch deep, and is three inches above grade and above the contract specification, and leaves the steps unfinished, is not entitled, in the absence of an acceptance of his work, to recover anything under his contract.

Appeal from Superior Court, Madison County; H. C. Ryan, Judge.

Action by Amos C. Gwinnup against John Shies. From a judgment for defendant, plaintiff appeals. Transferred from Appellate Court under Burns' Rev. St. 1901, § 1337u. Affirmed.

Ellison & Ellis, for appellant. E. D. Reardon, for appellee.

HADLEY, J. Appellant furnished the material and constructed a cement yard walk and steps for appellee, and brings this suit to recover therefor. In his first paragraph of complaint he counts on a special contract, and demands the stipulated price. In the second paragraph he sues for the quantum meruit.

Answer, the general denial. Trial by the court, and finding and judgment for the defendant. But one question is reserved for our decision, and that is, is the finding of the court, under the issues, contrary to law? The defense relied upon was the failure

1. See Contracts, vol. 11, Cent. Dig. § 1726.

of appellant to execute the work in a workmanlike manner, as the contract required. There is in the record sufficient evidence of defective levels and grade of the walk, and of defective form and finish of the steps, to support the court in its finding, but appellant insists that it was improperly received under the general denial. In this we think appellant is mistaken. The record discloses that the defendant's evidence touching the quality of the work done was given without a single exception being reserved that we have been able to discover, and our attention has not been directed to any; but, assuming that appellant has the right to raise the question, it must be decided against him. Any defense which goes to a denial that the cause of action set forth in the complaint exists may be properly pleaded by way of general denial. Works, Pr. § 579. The rule prevailing in this state is clearly stated in Jeffersonville, etc., Co. v. Riter, 146 Ind. 526, 45 N. E. 699, thus: "A defendant, under the general denial, is not confined to negative proof in denial of the facts stated in the complaint as a cause of action, but may, upon the trial, introduce proof of facts independent of those alleged in the complaint, but which are inconsistent therewith, and tend to meet and break down or defeat the plaintiff's cause of action."

There was no evidence offered by either party as to the value of the work as it was performed, but appellant insists that the evidence shows it was of some value, for which he should have recovered, and in support of his claim cites Everroad v. Schwartzkopf, 123 Ind. 35, 23 N. E. 969, and Gastlin v. Weeks, 2 Ind. App. 222, 28 N. E. 331. It is undoubtedly true, as held in these cases, that if a contractor performs his work in an inferior manner, or uses unfit material, or fails in any way to do the work as he agreed, if the work is of a fixed or permanent character, and of some value, and, notwithstanding the noncompliance with the contract, the other party accepts and uses the work, the law will require him to pay whatever the work, as done, is reasonably worth. See authorities cited in Everroad's Case, supra. In this case, however, there is not only an absence of evidence as to the value of the work as done, but there is also no evidence of an acceptance or of use by appellee, further than his statement that he walked over it from his door to the street "because he could not help it." It appears that appellee was absent from home while the work was being done, and, upon his return and inspection, at once made an earnest protest against acceptance; and the impelled use, as shown by the evidence, is not sufficient to constitute a constructive acceptance. It may seem harsh to hold that a man who has furnished the material and done a job of work for another shall receive no pay for it. But on the other hand, if, as the evi dence tends to prove, the walk was low-est

in the middle, and collected storm water half an inch deep, and the grade was three inches higher than the contract provided, and three inches higher than the yard grade when completed, and the steps unshapely and unfinished, it is probable that appellee would prefer to have his premises as they were before the work was done. In such cases it is clear that the fault is with the one who voluntarlly violates his contract. Judgment affirmed.

BOARD OF COM'RS OF PULASKI COUNTY v. HAYWORTH.

(Supreme Court of Indiana. Dec. 10, 1903.) COUNTIES COUNTY AUDITOR COUNTY REFORM LAW-ADDITIONAL COMPENSATION. 1. County Reform Law (Acts 1899, pp. 343365, c. 154, Burns' Rev. St. 1901, 88 55945594e2) provided that the county council should make suitable allowance to the county auditor for any additional work that might be imposed or his office by the operation of the statute, provided that it should not be less than $200 nor more than $600 a year. Held, that the county council had authority to make an allowance for additional work done by the county auditor prior to January 1, 1900, as well as for additional work performed after that date.

Appeal from Circuit Court, Pulaski County; G. W. Beeman, Judge.

Action by James N. Hayworth against the board of commissioners of Pulaski county. Judgment in favor of plaintiff, and defendant appealed to the Appellate Court, from which the cause was transferred. Transferred from the Appellate Court under the act of 1901 (Acts 1901, p. 590, c. 259), being section 1337u, Burns' Rev. St. 1901.

H. A. Steis, for appellant. Spangler & Son, for appellee.

MONKS, J. The only question presented by this appeal is whether or not a county auditor was entitled to receive any compensation for additional work imposed upon him by the act of 1899 (Acts 1899, pp. 343-365, c. 154), being sections 5594-5594e2, Burns' Rev. St. 1901, known as the "County Reform Law," from the date said law took effect to January 1, 1900, where the county council has made an "allowance" therefor under section 50 of said act, being section 5594d2, supra. If he was entitled to such compensation when the county council had made an allow ance therefor, this cause must be affirmed; otherwise it must be reversed.

Said act took effect April 27, 1899, and section 50 (section 5594d2, Burns' Rev. St. 1901) thereof provides that the county couneil "shall make suitable allowance to the County auditor for such additional work as may be imposed upon his office by the operation of" the county reform law, "provided, that in no case shall such allowance be less than two hundred dollars nor exceed six hundred dollars a year." Appellant insists that said section authorizes payment for such

work done on and after January 1, 1900, and that for such services performed by a county auditor prior to that day no recovery can be had. The additional work imposed by said county reform law upon the office of county auditor commenced before January, 1900, and said section 50 (5594d2), supra, expressly authorized the county council to make the allowance therefor, whether done before or after January 1, 1900. There is nothing in said act limiting the authority of the county council over said subject to additional work imposed on said officer, done on and after January 1, 1900. It is clear that the county council had as much power under said section to make allowance for such additional work performed before January 1, 1900, as for that performed afterwards.

It follows that the judgment must be affirmed. Judgment affirmed.

STATE ex rel. TIPPECANOE COUNTY COM'RS v. FLYNN et al.

(Supreme Court of Indiana. Dec. 18, 1903.) CLERK OF COURT-OFFICIAL DUTIES-LIABILITY ON BOND.

1. The preparation of hand bar dockets for printing for convenience of the court and bar is not a part of the official duty of a clerk of court, not being included in Acts 1895, p. 336, c. 145, § 114, fixing fees for his entries in a bar docket, or Burns' Rev. St. 1901, § 7931 (Horner's Rev. St. 1901, § 5845), making it his duty to procure bar dockets; these referring only to bar dockets kept in his custody as permanent records.

2. On the official bond of a clerk of court, conditioned to pay to the proper persons "all moneys that may come into his hands as such circuit court clerk by virtue of his office," there is no liability for money paid him in compensation for unofficial acts directed by the court, whether the court had authority to direct such acts or not.

3. In view of Burns' Rev. St. 1901, §§ 588, 1382, 591, 689, 7941, 7940, 599, and 1907, providing for record by the clerk of court of all judgments and fees in actions, including sheriff's fees, and under the direct provisions of Burns' Rev. St. 1901, § 7936 (Horner's Rev. St. 1901, § 5850), it is part of a clerk's official duty to receive fees in actions, including sheriff's fees, and he is liable on his official bond for money so received.

4. Under the direct provisions of Laws 1895, p. 352, c. 145, § 122, fees received by the clerk of court in actions belong to the county, unless they have been previously paid by the plaintiff.

5. Though it is proper for a clerk to pay sheriff's fees collected by him to the sheriff, where he refuses to pay them either to the sheriff or his successor or the county he is liable on his official bond to the county.

6. The county clerk is entitled to retain the per diem allowed by Acts 1895, p. 336, c. 145, § 114, for attending sessions of court, such per diem not being referred to in section 124, Aets 1895, p. 355, c. 145, providing for the payment by the clerk to the treasurer of the amount of "fees" collected.

Monks, J., dissenting in part.

Appeal from Circuit Court, Tippecanoe County; W. C. L. Taylor, Judge.

2. See Clerks of Courts, vol. 10, Cent. Eig. 133.