Polk v. Nickens.

lee's action, and on the trial of the cause the justice rendered judgment, that the "she hog" belonged to the appellee, and that he retain the same for his own benefit, and that he recover of the appellant the sum of eight dollars for said eight pigs, which the constable failed to find, and two dollars damages for the detention of said property, and the costs of suit.

On appeal, the cause was tried by a jury in the circuit court, and a verdict was returned, as follows:

"We, the jury, find for the plaintiff, and that he is the owner and entitled to the possession of the sow and eight pigs, in the complaint mentioned, and that the sow is of the value of six dollars, and that the eight pigs are of the value of four dollars."

Thereupon the appellant moved the court to tax the costs in the circuit court to the appellee, "on the ground and for the reason" that the appellee's recovery in the justice's court had been reduced more than five dollars in the circuit court, which motion was overruled, and to this decision the appellant excepted and filed his bill of exceptions. The court then rendered judgment on the verdict, and in favor of the appellee, for the entire costs of suit, and to the entry of judgment taxing him, the appellant, with the costs in the circuit court, he objected and excepted, and appealed from said judgment to this court.

Errors have been assigned by the appellant in this court, which call in question the decisions of the circuit court, in overruling his motion to tax the costs in that court against the appellee, and in rendering judgment for those costs against the appellant.

In section 70 of the act defining the jurisdiction, powers and duties of justices of the peace in civil cases, approved June 9th, 1852, it is provided as follows:

"Sec. 70. Costs shall follow judgment in the court of common pleas, or circuit court, on appeals with the following exceptions:

"First.

The State v. Zeitler.

If either party against whom judgment has been rendered, appeal and reduce the judgment against him five dollars or more, he shall recover his costs in the court of common pleas, or circuit court, when the appellant appeared before the justice." 2 R. S. 1876, p. 627.

It will be seen from our statement of this case, that "the appellant appeared before the justice," and that, on his appeal to the circuit court, he reduced the justice's judgment against him six dollars. By the letter of the statute, therefore, the appellant ought to have recovered his costs in the circuit court. We know of no legal grounds, on which the decisons of the circuit court, in overruling the appellant's motion to tax the costs of that court against the appellee, and in rendering judgment for said costs in favor of the appellee and against the appellant, can be sustained. These decisions of the circuit court were clearly erroneous. Robinson v. Skipworth, 23 Ind. 311; Crist v. Glidewell, 25 Ind. 396; Castle v. House, 41 Ind. 333; and Brown v. Duke, 46 Ind. 343.

The judgment as to the costs is reversed, at the appellee's costs, and the cause is remanded with instructions to render judgment, in favor of the appellee, for the amount of the verdict and interest, and his costs before the justice of the peace, and in favor of the appellant for his costs in the circuit court.

THE STATE V. ZEITLER.

LIQUOR LAW.-Affidavit.—Sale to Person in the Habit of Becoming Intoxicated.-Quantity. An affidavit for an alleged unlawful sale of intoxicating liquor must, to be sufficient, aver the sale of some particular quantity less than a quart, even where the sale is alleged to have been made to a person in the habit of becoming intoxicated.

From the Elkhart Circuit Court.

The State v. Zeitler.

T. W. Woollen, Attorney General, J. M. Vanfleet and E. C. Bickel, for the State.

M. F. Shuey, for appellee.

BIDDLE, J.-Prosecution for unlawfully selling intoxicating liquor, commenced before a justice of the peace. The affidavit is in the following words:

"August 2d, 1878. Now comes Julia Whitinger, and files her affidavit, that, on the 1st day of July, 1878, at and within said county, John Zeitler did unlawfully sell spirituous, vinous and malt liquors to Adam Whitinger, a person in the habit of being intoxicated, for the price of five cents; said defendant having received notice in writing, of September 12th, 1877, from the wife of said Adam, that he was in the habit of being intoxicated."

Conviction before the justice; appeal to the circuit court, wherein, upon motion of the appellee, the cause was dismissed.

The State appealed.

The defect alleged against the affidavit is, that it does not state the quantity of intoxicating liquor sold. The State insists, that this averment is not necessary. The argument of the counsel is, that, as section 10, 1 R. S. 1876, p. 871, upon which this prosecution is founded, does not mention any given quantity of liquor, it is not necessary to aver it. The statute, however, does not declare any sale of intoxicating liquor unlawful, except a sale of a less quantity than a quart at a time. Sec. 1.

We, therefore, can not hold any sale unlawful, unless it is for a less quantity than a quart at a time, whether made to a person in the habit of being intoxicated or to a minor or any other person. This would be to create a criminal offence by construction, which is beyond our power. And it may be laid down as a general rule in criminal pleading, that, when either time, place, quantity or value

Gould et al. v. Hayden et al.

is an ingredient in an offence, it must be averred, or the pleading will be bad.

We could not hold the affidavit in this case sufficient, without impairing, modifying or overruling the following cases: Rosenbaum v. The State, 4 Ind. 599; Brutton v. The State, 4 Ind. 601; Cool v. The State, 16 Ind. 355; Haver v. The State, 17 Ind. 455; Walker v. The State, 23 Ind. 61; State v. Mondy, 24 Ind. 268; Manvelle v. The State, 58 Ind. 63.

And if the question was still open, as now advised, we should adopt the same rule. The judgment is affirmed.

GOULD ET AL. v. HAYDEN ET AL.

JUDGMENT.-Action Upon.-A judgment is a debt of record, upon which an action may be maintained, either in the court which rendered such judgment or in any other court of competent jurisdiction; and the judgment plaintiff may at once renew his action, ad infinitum, upon each successivejudgment thus recovered.

SAME.-Last Judgment Merges Preceding.-Where a judgment is thus recovered upon a judgment, the latter is merged in the former, and all of its liens or priorities are released.

SAME.-Lien.-Execution.-Injunction.—Where a judgment is recovered in a court of competent jurisdiction in another State, upon a judgment previously rendered in this State, the latter is merged in the former, all of its liens or priorities upon lands in this State are abandoned, and the owner of such lands may enjoin a sale of the same upon an execution issued thereon.

From the Union Circuit Court.

L. H. Stanford, J. E. Tucker and C. L. Seward, for appellants.

C. H. Burchenal and B. Burke, for appellees.

Gould et al. v. Hayden et al.

Howк, C. J.-In this action the appellees, as plaintiffs, sued the appellants, as defendants, in a complaint of two paragraphs.

In the first paragraph of their complaint the appellees alleged, in substance, that, on the 25th day of March, 1869, Louis Stix, Joseph L. Swartz and Nathan Stix, partners under the name of Louis Stix & Co., in the court of common pleas of Union county, Indiana, recovered a judgment against one Louisa J. Johnson for the sum of five hundred and eighty-four dollars and twenty-nine cents, and the costs of suit, which judgment was duly entered on the order book and judgment docket of said court; that, at the time of the rendition of said judgment, said Louisa J. Johnson, as the widow of one Robert B. Johnson, late of said county, deceased, was the owner of the undivided onethird part of certain real estate, particularly described, in said Union county, of which said Robert B. Johnson was seized at the time of his death; that, on the 28th day of July, 1869, the administrator of said Robert B. Johnson, deceased, by virtue of an order of said court of common pleas, sold the undivided two-thirds part of the different parcels of said real estate to certain persons named in said paragraph, and executed to said several purchasers deeds of conveyance therefor; that the said Louisa J. Johnson at the same time sold and conveyed, by good and sufficient quitclaim deeds, her undivided one-third part of said sev eral parcels of said real estate to the same purchasers; that afterward, by virtue of sundry conveyances made by the said several purchasers, the appellees became the owners. in fee-simple, of all the said several parcels of said real estate; that, after the execution of the said several conveyances by said Louisa J. Johnson, and while the said judg ment against her remained unsatisfied, to wit, on the — day of 18, the said Stix & Co., being the owners and holders of said judgment, took a certified