Wilson v. Heflin. pending suits, attachments, levies and liens affecting real estate in certain cases," and that it was the duty of the appellee to have filed with the clerk the written notice required by the second section of that act. That act has no effect upon suits in the United States courts, and has no retroactive operation. Both of the suits were commenced before that act took effect; new statutes apply only to future cases, unless there is something in the nature of the case, or in the language of the statute, which shows it was intended to be retroactive. Potter's Dwarris Statutes, 163, note. The appellant also claims that, under the act of Congress of March 3d, 1875, sec. 3, Supplement to R. S. U. S., vol. 1, p. 173, it was the duty of the Tipton Circuit Court, after a proper petition for removal and bond filed, to proceed no further; whereas the court proceeded under the repealed act of Congress of March 2, 1867, 2 R. S. U. S., section 639, and transferred one branch only of the case and retained jurisdiction as between the appellee and the other defendants, according to the former practice under said repealed act. If the proceedings in the Tipton Circuit Court can not be attacked collaterally (see Walker v. Heller, 73 Ind. 46-52; Evans v. Ashby, 22 Ind. 15), then the appellant, having purchased pending the suit, was bound by the decree, although not a party to the suit; but, even if the action of the Tipton Circuit Court, subsequent to the removal proceedings, could be regarded as without jurisdiction and utterly void, there would still remain the lis pendens in the United States Circuit Court, and the appellant, having purchased pending that litigation, was bound by the decree therein. In reference to this litigation, the appellant claims that because the appellee, in her cross-complaint therein, did not expressly ask to be substituted to the rights claimed by the Sewing Machine Company, and did not allege any mistake, therefore the decree of the U. S. Circuit Court, giving the appellee what she did not ask, was coram non judice, and of no validity against a purchaser without notice; but the mis Wilson v. Heflin. take had already been alleged and correction of it demanded in the bill. The appellee, in her cross-complaint, stated her ownership of the notes and mortgage, and prayed for all equitable relief. It was therefore clearly within the jurisdiction of the court to render the decree in favor of the appellee. The substance of the appellee's claim upon the property fully appeared on the face of the proceedings, before the defendant purchased, and before any of the deeds were made, except the appellee's deed to Busenbark, correcting the mistake in the first deed. The appellant was therefore bound by the decree. The counsel for the appellant also claim that, because Mrs. Hefflin made an absolute deed to Busenbark, not stating therein its purpose as correcting the mistake in the former deed, she is estopped thereby from claiming anything against the appellant, who is a purchaser under Busenbark without actual notice, and that therefore the rule of law, that a purchaser of real estate is chargeable with notice of a pending litigation affecting the title, does not apply to this case. He cites the case of King v. Rea, 56 Ind. 1, where it is said: "When a person, competent to act, has solemnly made a deed, he shall not be allowed to gainsay it to the injury of those whom he has misled thereby." Here, however, was notice by a lis pendens. Such a notice is equivalent to actual notice; it makes the case as strong in favor of the appellee as it would have been had the second deed to Busenbark contained a full statement that it was made for no other purpose than to correct the mistake in the first deed. There was no error in the conclusions of law. The judgment of the court below ought to be affirmed. PER CURIAM.-It is therefore ordered, upon the foregoing opinion, that the judgment of the court below be and it is hereby in all things affirmed, at the costs of the appellant. Yeager v. Tippecanoe Township. No. 8684. YEAGER v. TIPPECANOE TOWNSHIP. TOWNSHIP.-Repair of Highways.-Negligence.-Damages. —In 1879, a civil township had no such powers conferred or duties imposed upon it as required it to keep in repair the public highways; and hence it was not liable for damages accruing from neglect to do so. From the Kosciusko Circuit Court. C. Clemans and A. C. Clemans, for appellant. FRANKLIN, C.-This was an action brought by appellant against appellee, to recover damages for injuries, alleged to have been caused by appellee negligently permitting a public highway in the township to be out of repair. The complaint is somewhat lengthy, and substantially states, that there was located in said township a public highway; that on the 23d of September, 1879, the rain had washed out a gutter in said highway two feet deep, twenty inches wide, and twenty feet long; and upon that day, after the gutter had been so washed out, appellant, with one Andrew Yeager, were driving along said road with a two-horse buggy, appellant carrying a loaded gun in his hands; that they drove the horses and buggy into said gutter, there being no way of driving around it; that without negligence, and with careful driving into the gutter, the buggy was so jarred and jostled as to break the tongue and one of its wheels, and appellant was violently thrown out upon the ground, and the gun was so violently thrown against the ground as to cause it to discharge its load into the arm of appellant, and break and crush the bone thereof, which had disabled him for life, to his damage two thousand dollars. To which complaint a demurrer was sustained. The ruling on the demurrer is the only error assigned in this court. The question of the liability of a township for such injuries, we believe, has never heretofore been before this court. Yeager v. Tippecanoe Township. The doctrine of the liability of cities for such injuries appears to be well settled. Grove v. The City of Fort Wayne, 45 Ind. 429; Higert v. City of Greencastle, 43 Ind. 574. In the absence of a statute making cities liable, this doctrine or rule of decision appears to be based upon the fact that the act for the incorporation of cities provides that “the common council shall have exclusive power over the streets, highways, alleys and bridges within the city," and invests them with ample power of taxation for general purposes, under which must be included street improvement purposes, and if they fail to exercise these powers, they should respond in damages to any one injured by their neglect to keep the streets in repair. It has also been held by this court, that counties are liable for injuries arising from negligently permitting the bridges of the county to be and remain out of repair. This ruling has also been based upon the fact "that the board of commissioners has ample power to build and repair bridges, and to make appropriations from the county treasury for that purpose, and that it may determine the amount of taxes to be levied for county expenditures, which includes expenditures for the building or repair of bridges where the same are built or repaired by the county; and that it is made the imperative duty of the board to cause all bridges in the county to be kept in repair." House v. The Board of Commissioners of Montgomery County, 60 Ind. 580. The enquiry thus arises as to what effect these rules of decision should have upon the question under consideration. Appellee, in its brief, has referred us to a number of cases in which it has been held by some of the courts in the Eastern States, that the towns (which are to some extent similar to our townships) are not liable for such injuries, unless expressly made so by statute, wherein a distinction is drawn between corporations brought into existence by the action of the inhabitants, and those created by the sovereign authority, for Yeager v. Tippecanoe Township. the public good. But this court has based its rulings upon a different principle, to wit, the obligation to discharge a duty. Hence, we are led to investigate the powers and duties of a township in this State over the highways therein situated. Section 8 of the act upon Township Business, 1 R. S. 1876, p. 901, provides that "The trustee shall superintend all the pecuniary concerns of the township, and shall, at the June session of the county board, annually, with the advice and concurrence of the board of county commissioners, levy a tax on the property of such township, for township, road, and other purposes, and report the same to the county auditor. * * But in case of failure of such trustee and commissioners to concur, then the board of county commissioners shall determine upon and levy such township, road, and other taxes." Section 11 of the same act provides, that "The township trustee shall, annually, on the last Saturday in February, settle with and audit the accounts of supervisors of roads in his township, and shall within five days thereafter, make to the board of county commissioners, a complete report of the receipts and expenditures of his township during the preceding year," etc. The third, fourth and fifth clauses of the 6th section, require the township trustee "To divide his township into convenient highway districts and make such alterations in the same as may be necessary." "To fill all vacancies that occur in the office of supervisor of highways in his township." "To see to a proper application of all moneys belonging to the township for road, school or other purposes, and perform all the duties heretofore required of the township trustees, clerk and treasurer, under the supervisors and school acts." Section 19 provides, that "The township trustee shall in no case, have any power to change, vacate, or open any highway, in any township, in any county; but such power shall be vested in the county commissioners of the county," etc. The foregoing embrace all the powers and duties of a township trustee in relation to the public highways, and in |