The Toledo, Wabash and Western R. W. Co. v. Craft. license, time would be "an indispensable ingredient in the offence," if the 4th of July was a legal holiday. Clarke v. The State, 34 Ind. 436; Buskirk Prac. 390; 2 Russell Crimes, 326. The judgment is reversed; cause remanded, with instructions to sustain the motion to quash the indictment. THE TOLEDO, WABASH AND WESTERN R. W. Co. v. CRAFT. PLEADING.-Practice.—Harmless Error.—The sustaining of a demurrer to a sufficient paragraph of a pleading is harmless, where the same matter is alleged in a remaining paragraph. From the Wabash Circuit Court. W. Z. Stuart, C. B. Stuart and T. A. Stuart, for appel lant. A. Taylor, for appellee. BIDDLE, J.-Complaint by the appellee, against the appellant, for killing a horse by running the appellant's locomotive and cars upon and over it, at a point where the railroad track was not securely fenced. The appellant answered by a general denial and a second, third, fourth and fifth special paragraph. The court sustained a demurrer to the second paragraph, upon the ground that it did not state facts sufficient to constitute a defence. The appellant excepted. It seems to us this ruling is erroneous, but the fifth parathe graph, upon which issue of fact was taken, set up same defence as that pleaded in the second paragraph. The error, therefore, became harmless. Trial by jury; verdict for appellee; motion for a new trial; overruled; exceptions; judgment; appeal. Willis v. The State. The record presents no additional question, except as to the sufficiency of the evidence to uphold the verdict. We have examined the evidence carefully. It tends towards proving all the facts necessary to sustain the verdict. We can not, therefore, disturb the judgment simply upon the question of evidence. The judgment is affirmed, at the costs of the appellant. WILLIS V. THE STATE. CRIMINAL LAW.-Motion for New Trial.-When to be Made.-The motion for a new trial in a criminal case must be made before judgment is rendered, but in civil actions it may be made either before or after. From the Fountain Circuit Court. J. W. Copner, for appellant. T. L. Stilwell, Prosecuting Attorney, and T. W. Woollen, Attorney General, for the State. WORDEN, J.-This was an indictment against the appellant for retailing intoxicating liquor without a license. Trial by the court; conviction and judgment. The only question sought to be raised in the case relates to the ruling of the court in overruling a motion for a new trial. But the motion for a new trial was not made until after the judgment was rendered. It therefore came too late. In civil cases a motion for a new trial may be either made before or after judgment at the term at which the trial is had. Hinkle v. Margerum, 50 Ind. 240. Not so, however, in criminal cases. The statute in relation to criminal pleading and practice provides, that "The application for a new trial must be made before judgment." 2 R. S. 1876, p. 409, sec. 143. Smith v. Stanford. In Romaine v. The State, 7 Ind. 63, it was intimated that a motion to set aside a judgment, in order to give effect to a motion for a new trial, could not be granted. This strict construction might, in some cases, operate as a very great hardship; but we, in this case, decide nothing upon the point. For the purposes of this case, it is sufficient to say that there was no motion to set aside the judgment, in or der that the motion for a new trial might be properly made. Moreover, the causes assigned for a new trial were as well known before as after the rendition of the judg ment. The judgment below is affirmed, with costs. SMITH V. STANFORD. com REPLEVIN.-Complaint in Justice's Court.—Description of the Property.— Fixture. In an action to recover the possession of personal property, menced before a justice of the peace and appealed thence to the circuit court, the cause was tried upon a complaint which described the property in controversy as "one crib of corn, said crib being the north crib of three cribs situated south of the house." Held, on motion to dismiss the action for want of a sufficient complaint, and on motion in arrest of judgment, that the complaint sufficiently described the property. Held, also, that, if the plaintiff sought also to recover the crib, the question as to whether it was part of the realty depended upon whether or not it was set into or attached thereto, and was matter of defence. SUPREME COURT.—New Trial.—Evidence.-Assignment of Error.—Practice. -On appeal to the Supreme Court, the evidence should be in the record, to properly present any question raised by an assignment of error in overruling a motion for a new trial. From the White Circuit Court. J. H. Wallace and Denny & Burns, for appellant. -Smith v. Stanford. tion before a justice of the peace of White county, to recover the possession of "one crib of corn." The trial before the justice resulted in a verdict and judgment for the appellant, the defendant, from which the cause was appealed to the court below. In the latter court the appellant moved the court to dismiss the action for the want of a sufficient complaint, which motion was overruled, and to this decision the appellant excepted. The cause was tried by the court without a jury, and a finding made for the appellee, that he was the owner and entitled to the possession of the crib of corn described in his complaint, of a certain specified value, and that he had sustained damages by the detention of said property in the sum of one cent. The appellant's motions for a new trial and in arrest of judgment were severally overruled, and to each of these decisions the appellant excepted. The court then rendered judgment on its finding, from which judgment this appeal is now prosecuted. In this court the appellant has assigned as errors the following decisions of the court below : 1. In overruling his motion to dismiss this action for the want of a sufficient complaint; 2. In overruling his motion for a new trial; and, 3. In overruling his motion in arrest of judgment. The first and third of these alleged errors alike call in question the sufficiency of the appellee's complaint. The evidence on the trial is not in the record; and, therefore, the second alleged error presents no question for our consideration. The only question for decision by this court is this: "Did the appellee's complaint in this case state facts. sufficient to constitute a cause of action?" As we have seen, this action was commenced before a Smith v. Stanford. justice of the peace. In such cases it may be regarded as the settled law of this State that the statement by a plaintiff of "the grounds of his complaint" will be sufficient, if it will inform the defendant of the nature of the plaintiff's cause of action, and be so explicit that a judgment in the suit may be used as a bar to another action for the same cause. Milholland v. Pence, 11 Ind. 203; Clark v. Benefiel, 18 Ind. 405; Powell v. DeHart, 55 Ind. 94; The United States Express Co. v. Keefer, 59 Ind. 263; and Hewitt v. Jenkins, 60 Ind. 110. In section 71 of the act, inter alia, defining the jurisdiction, powers and duties of justices of the peace in civil cases, approved June 9th, 1852, which section was amended by an act which became a law on the 6th day of August, 1859, it was provided, among other things, that a complaint before a justice for the recovery of the possession of personal property should specifically describe such property, etc. 2 R. S. 1876, p. 628. In the complaint in the case at bar, the appellee described the property, the possession of which he sued for, as follows: "One crib of corn, said crib being the north crib of three cribs, situated south of the house." It must be confessed, we think, that the description of this crib of corn is not very specific. But the object of the specific description of the property, required by the statute, would seem to be to enable the proper constable "to take the property described and deliver it forthwith " to the plaintiff in the action. If, therefore, the description of the property sued for in this action was sufficiently specific in the appellee's complaint to enable the proper officer to take said property and deliver it to the appellee, as it seems to have been, we ought not, we think, for or on account of the mere vagueness of the description, to sustain the appellant's motion and dismiss the action. It is claimed, however, by the appellant's counsel, that the appellee's |