13. RAILROADS.-All animals killed at any time by a railroad con-
stitute a separate and indivisible cause of action, and where their
value exceeds 50 dollars, the Circuit or Common Pleas Court has
original jurisdiction, but not otherwise.-The Indianapolis, &c., R.
R. Co. v. Elliott,
430

14. TRESPASSER.-Where a person, in the first instance, acts under
an authority vested in him by law, and afterwards abuses it, or fails
to comply with the terms and conditions on which it was granted,
he must be deemed a trespasser ab initio.-Burton v. Calaway, 469
15. DESCENT-ACTION.-In 1859 a man died, leaving a widow and
children. One-third of his real estate descended to his widow. She
and B, in 1860, executed a joint and several promissory note for
the payment to C of a sum of money. Afterwards she and B in-
termarried. She then died, the children by her former husband
surviving her. B then became insolvent. Csued the children by
the former husband to subject the interest which had descended to
their mother, as aforesaid, to the payment of said note. The chil-
dren claimed that, by reason of her subsequent marriage, she took
but a life estate therein, and that, therefore, it was not subject to
sale for the payment of said note.

Held, that, under the circumstances, she took a third in fee, and that
it was liable for the payment of her debts, and said action would
lie.-Philpot v. Webb,
509

ADJOURNED TERM.

1. ADJOURNED TERM.-Where a Court orders an adjournment to a spe-
cial term, for the completion of unfinished business, and that due
notice thereof be given, and does not specify the mode in which
public notice shall be given, but sufficient notice is given thereof
by the clerk, by publication, such order will still be operative and
such adjourned term legal.-Conrad v. Johnson,

ADMISSIONS.

421

1. PRACTICE.-Suit to set aside a conveyance of land to a married
woman, on the ground that it was fraudulent, and made for the pur-
pose of securing said property from the creditors of her husband,
and that her husband paid for it. Separate answer by the married
woman, in fifteen paragraphs, the last of which alleged that the
real estate was purchased with the proceeds of the sale of other
real estate held by her in her own right, and that the deed therefor
was made to her with the knowledge, consent, approval and advice
of the plaintiff. Replies to each paragraph but the last, and none
to that.

Held, 1. That the failure to reply thereto was an admission of the
facts therein pleaded, and entitled her to a judgment on the plead-

ings, and if, upon the trial, there had been a verdict for the plaintiff, she would have been entitled, upon a proper motion, to a judgment non obstante veredicto.-Needham v. Webb,

213

2. That, as the verdict on the trial was in her favor, the same must be sustained by reason of said admission, although she failed, at the proper time, to move for a judgment on the pleadings. Ibid.

ADMINISTRATORS.

See EXECUTORS AND ADMINISTRATORS.

ADMINISTRATOR'S SALE.

See EXECUTORS AND ADMINISTRATORS.

AGENCY.

1. SELLING LIQUORS BY AGENT.-A person duly licensed to retail intoxicating liquors, may conduct his business by an agent, and such agent will not be liable to prosecution for selling without license. -Pickens v. The State,

ALTERATION OF WRITTEN CONTRACT.

116

1. ALTERATION OF NOTE.-The alteration of a note, procured by the payee, by the addition of the name of another person as a maker, after it had been executed and delivered to the payee by the former parties, and without their consent, renders the note void as to such original parties.-Bower's Adm'r v. Briggs,

AMENDMENT.

139

1. AMENDMENT-VARIANCE.-Where there is a variance between the instrument sued on, as described in the complaint, and as offered in evidence, the complaint may be amended on the trial, and the amendment will, in the Supreme Court, be deemed to have been made.-Hobbs v. Cowden,

310

2. PRACTICE.-After the jury has been sworn and a part of the evidence heard, it is too late for either party to amend by adding a new cause of action, or defence, to be examined and disposed of in the pending trial.-Hoot v. Spade,

326

3. PRACTICE. It is competent for the Courts of Common Pleas and Circuit Courts, in cases appealed to them from justices of the peace, to permit amendments to be made which have the effect to increase the cause of action or relief demanded, provided such cause of action or relief, so increased, does not exceed the jurisdiction of the justice of the peace, and such Courts may, in such cases, make the proper orders for the adjustment of the costs between the parties. -Boggs v. Near,

395

4. PRACTICE-PARTITION.-In actions for partition, it is competent for the Court, at any time before final report, upon proper evidence, to amend its record by correcting any clerical mistake in the description of the land.- Winship v. Crothers,

APPEAL.

455

1. EFFECT OF APPEAL.-The only effect of an appeal to a Court of error, when perfected, is to stay execution; but the fact that the judgment has been appealed to such Court, is no bar to an action upon it. Burton v. Reeds,

87

2. APPEAL.-Where a person files a claim, in proper form, before the Board of Commissioners of a county, for the repayment of taxes that have been wrongfully assessed against him on real estate which is situated in another county, and said commissioners refuse to allow his claim, he is entitled to appeal from such judgment of refusal to the Court of Common Pleas.-Shultz v. The Board, &c. 178

3. In actions before justices of the peace against a supervisor by the township trustee, under section 26, 1 R. S. 467, either party is entitled to appeal as in other cases before justices under section 64, 2 R. S. 461.-Hobbs v. Cowden,

310

4. PRACTICE-LIMITATION.-Where a cause was tried in October, 1853, and an appeal taken and transcript filed in this Court, and process issued to a resident defendant, and delivered to the proper officer, in September, 1856, the appeal was not barred by the statute of limitations, the commencement of a suit, or appeal, dating from the issue and delivery of process to the proper officer, and it is not material whether the process was served within three years or not. Evans v. Galloway, 479

APPROPRIATIONS.

1. An appropriation, as applicable to the general fund in the treasury, is an authority from the Legislature, given at a proper time, and in legal form, to the proper officers, to apply sums of money out of that which may be in the treasury, in a given year, to specified objects, or demands against the State.-Ristine, &c. v. The State, &c., 328

2. An appropriation of money to a specific object is an authority to the proper officers to pay the money, because the Auditor would be thereby authorized to draw his warrant for such money, and the treasurer to pay such warrant, if he had appropriated money in the treasury.

3. An appropriation may be prospective.

Ibid.

Ibid.

ARBITRATION.

1. Under the statute relative to arbitrations, all proceedings prior to the granting of a rule to show cause why judgment should not be rendered on the award are ex parte.-Conrad v. Johnson,

421

2. Where a claim for damages for the non-performance of a parol contract is submitted to arbitration, and the award requires one party to pay to the other a certain sum, "without relief from valuation or appraisement laws," the Court, in which the award is filed, may modify the same by striking out the direction, "without relief, &c, which is unauthorized in such case.

Ibid.

3. An averment that an award was obtained by partiality should specify in what the partiality consisted. Ibid.

4. Where the agreement to submit to arbitration appoints a place where the arbitrators shall meet to perform their duties, and they meet there and hear all the evidence and determine what their award shall be, it is not material at what place the award is finally made out and reduced to writing. Ibid.

5. A mistake of law can not be set up as an objection to defeat an award. Ibid. 6. Arbitrators should estimate and return with their award the costs of the arbitration. Ibid. 7. Where the agreement of submission designates a time on or before which the award shall be delivered, and the same is not delivered on or before that time, it shall be inoperative. Ibid. 8. STATUTES CONSTRUED.-The statute relative to arbitrations and umpirages does not contemplate, nor provide for, the arbitration of a cause pending in Court.-Daggy v. Cronnelly,

ARGUMENT-OPEN AND CLOSE OF.

474

1. A sued B on a note. B interposed no general denial to the complaint, but answered by way of set-off.

Held, That the defendant was entitled to open and close the argument on the trial, and that, the fact that the plaintiff replied affirmatively to the defendant's answer, setting up new matter, did not change the rule, because, until the defendant had proved his set-off, the plaintiff could not be required to prove anything.-Bowen v. Spears,

146

2. Where there are several issues in a cause, and the plaintiff is required to prove any one of them before he is entitled to a verdict, he is entitled to open and close.

Ibid.

3. Semble, That, when the defendant is entitled to the opening and close of the argument, he is also entitled to open and close the evidence, and if he waives the latter right, such waiver will extend also to the argument; but, where the record is silent on the subject, this Court will not presume that he waived the right to open and close the evidence.

ARSON.

See CRIMINAL LAW AND PRACTICE, 8.

ASSIGNEE OF JUDGMENT.

Ibid.

1. Assignees of a judgment, under our statute, take the same subject to whatever equities exist in favor of the judgment debtor.-Robeson v. Roberts,

155 2. PLEADING. In an action by an assignee to enforce the lien of a judgment on certain real estate, the complaint should contain a copy of the judgment and assignment thereof to him.-Brookshire v. Lomax,

AUCTIONEER.

See EXECUTORS AND ADMINISTRATORS, 1, 2, 3.

ATTACHMENT.

512

1. ATTACHMENT-PLEADING AND PRACTICE IN.-Action upon notes, and attachment obtained at the institution of the suit, based upon an allegation in the complaint, that the defendant was about to sell his property subject to execution, with the fraudulent intent, &c., and the complaint was verified. The defendant appeared and answered to the attachment both by a general and special denial of the facts averred as the basis thereof, and other issues were formed by pleading to the complaint generally. No objection was made to the answers to the attachment on the ground that they were not verified. On all the issues thus formed, the cause was tried by the Court, and judgment rendered for the plaintiff, (the Bank,) generally, without any order for the sale of the attached property. The plaintiff then moved the Court for such an order on the ground that judgment had been rendered in the main action without any trial or finding on the attachment, and because no plea or answer to the attachment had been filed and duly verified. Motion overruled. Defendant then appealed from the general judgment to the Supreme Court, and the plaintiff obtained a change of venue in the attachment matter to another Court, and the latter Court, on the defendant's motion, dismissed the same, and from the judgment of dismissal, the plaintiff appealed to this Court.