any other fact. Law is fixed and uniform; it can not be one thing in one case, and another thing in another case, as evidence may be. We know of no rule of law which attaches a suspicion to, or fixes a blemish upon, evidence tending to prove an alibi, any more than it does upon evidence tending to prove any other fact. What creates suspicion against, or marks evidence with a blemish, is a question of fact, and not a rule of law; and as the court must instruct the jury upon questions of law, and not of fact, we think the court erred in giving the instruction complained of.
Other questions need not be decided.
The judgment is reversed, and the cause remanded, with instructions to sustain the motion for a new trial, and for further proceedings. The clerk will issue the proper order for the return of the prisoner.
ABATEMENT OF ACTION.
See CORPORATION, 7, 8.
ADOPTED CHILD.
See COMMON SCHOOLS, 2 to 4.
ADVANCEMENT.
See PARTITION, 1.
AFFIDAVIT.
See CONTEMPT, 1; FALSE IMPRISONMENT, 4; SUPREME COURT, 18.
See TOWNSHIP TRUSTEE, 1.
ALTERATION.
See PROMISSORY NOTE, 20.
AMENDMENT.
See PARTITION, 4, 5; PRACTICE, 14; SUPREME COURT, 3.
See APPEAL BOND; ATTACHMENT, 2, 3; DECEDENTS' ESTATES, 4; INSANE
PERSON, 1; SUPREME COURT, 10, 13, 17; TAXES, 2.
APPEAL BOND.
See SUPREME COURT, 13, 14.
Bond Without Surety.-A party, against whom a judgment had been render-
ed by a justice of the peace, tendered to the justice a bond executed by
him without any surety, and demanded an appeal to the circuit
Heid, in an action by such judgment defendant, against such justice and the
judgment plaintiff, for a writ of mandate to compel the granting of such
appeal, that such bond was insufficient.
The I., P. & C. R. W. Co. v. Beam, 490
APPEARANCE.
See HIGHWAY, 9; PRACTICE, 1, 2.
APPRAISEMENT LAWS.
See GUARDIAN AND WARD, 21.
See FALSE IMPRISONMENT, 4.
ARREST OF JUDGMENT.
See CRIMINAL LAW, 9, 27; SUPREME COURT, 7.
ASSAULT AND BATTERY.
See CRIMINAL LAW, 1.
ASSESSMENT OF DAMAGES.
See HIGHWAY, 2.
ASSIGNMENT.
See ATTACHMENT, 4; PROMISSORY NOTE, 13, 17.
ASSIGNMENT OF ERROR,
See CRIMINAL LAW, 7; NEW TRIAL, 3, 9; PRACTICE, 5; SUPREME
COURT, 6, 9, 12.
ATTACHMENT.
1. Auxiliary Proceeding.—An attachment under the statute of this State is
not an independent proceeding, but is merely in aid of an action com-
menced concurrently therewith, or prior thereto.
The State, ex rel., etc., y. Miller, 475
2. Appeal from Justice.-When an appeal is taken to the circuit or superior
court, from a judgment rendered by a justice of the peace in an action
wherein a writ of attachment has been issued, the whole cause there
stands for trial de novo.
Ib.
3. Appeal from Judgment in Attachment.-Case Modified.-An appeal will
not lie in such action from the judgment in attachment, independently
of the main action. Theirman v. Vahle, 32 Ind. 400, modified. Ib.
4. Garnishee.--Promissory Note.-Notice of Assignment.-A judgment ren-
dered against the maker of a promissory note, as garnishee in an attach-
ment proceeding against the payee, is a good defence, to the extent of
such judgment, to an action against the maker, by an assignee, upon such
note, if, at the date of such judgment, the maker had no notice of the
assignment.
Canaday v. Detrick, 485
5. Same.-Parties.-It is not necessary in such action to make the attach-
ment creditor a party thereto.
ATTORNEY.
See SHERIFF, 1.
ATTORNEY GENERAL.
See COMMON SCHOOLS, 1.
ATTORNEY'S FEES.
See CHATTEL MORTGAGE, 2.
AUCTIONEER.
See CITIES AND TOWNS, 10 to 12.
BETTING ON ELECTION.
See CRIMINAL LAW, 8, 11.
BILL OF EXCEPTIONS.
See CRIMINAL LAW, 30 to 33; NEW TRIAL, 8; PRACTICE, 4, 12; Supreme
COURT. 1, 18.
1. Filed too Late.-Where, on the 19th of May, thirty days are given to file
a bill of exceptions, it is too late to file the same on the 19th of June
following.
Huff v. Krause, 396
2. Evidence of Time of Filing in Vacation.-The official statement of the
clerk of the court, in the record of the cause, is the only evidence to
which the Supreme Court can look to ascertain the time, in vacation,
when a bill of exceptions was filed.
3. Time of Filing.-Where, on the 10th of June, sixty days are given with-
in which to file a bill of exceptions, the 12th of August succeeding is too
late to file the same.
Miller v. Muir, 496
BLACKMAIL.
See CRIMINAL LAW, 47.
BLUFFTON, TOWN OF.
See CITIES AND TOWNS, 1 to 8.
See APPEAL BOND; CITY TREASURER; SHERIFF, 1; SUPREME COURT, 13, 14.
See CRIMINAL LAW, 68 to 70.
BURDEN OF PROOF.
See PROMISSORY NOTE, 7.
BURGLARY.
See CRIMINAL LAW, 38, 40.
CASES DOUBTED, EXPLAINED, MODIFIED OR OVERRULED.
1. Theirman v. Vahle, 32 Ind. 400, as to appeal from a judgment on an at-
tachment.
The State, ex rel., etc.,v. Miller, 475
2. The State v. Grammer, 29 Ind. 530; Wilmer v. The State, 44 Ind. 223;
and The State v. Prather, 44 Ind. 287; as to official reports.
The State, ex rel., etc., v. Hauser, 155
3. Kessler v. The State, ex rel., etc., 24 Ind. 313, as to effect of entry of
mortgage in entry book.
Gilchrist v. Gough, 576
4. Ex Parte Robinson, 2 Bissell, 309, followed in Helm v. The First Na-
tional Bank, etc., 43 Ind. 167, and in The Grover and Baker Sewing
Machine Co. v. Butler, 53 Ind. 454, as to patent- rights, overruled by
Patterson v. The State of Kentucky, 97 U. S. 501. Fry v. The State, 552
CERTIORARI.
See SUPREME COURT, 3.
CHATTEL MORTGAGE.
1. Tenant's Mortgage of Crops to be Raised.-Execution Creditor.--A mort-
gage executed by a tenant on the crops to be raised by him on a
tract of ground leased by him is valid against execution creditors; but
the equity of redemption may be sold on execution.
Headrick v. Brattain, 438
2. Identity of Note Secured and Property Mortgaged.-Evidence.—Judg-
ment on Note.- Subsequent Foreclosure.-Attorney's Fees.-A chattel
mortgage, executed to secure the payment of a series of promissory
notes, described them simply by giving the date, amount and maturity
of each, but named neither the payee nor maker, and described the
mortgaged property simply as "one steam saw-mill, and fixtures there-
unto belonging," etc. The note last maturing, being the only one unpaid,
and stipulating for an attorney's fee, was put into judgment for the amount
of the principal, interest and attorney's fee, in a simple action on the
note, against the maker, by an assignee, who thereupon assigned the
judgment to the payee, who was also the mortgagee, and who brought
suit on said judgment, to foreclose the mortgage against the mortgagors
and the remote purchaser of the mortgaged property, who answered
by general denial and also by alleging payment of the mortgage debt
to the plaintiff by a purchaser of the inortgaged property, a failure of
the plaintiff to release the mortgage, his subsequent assignment of the
same to another, and that said defendant had thereafter purchased
the mortgaged property bona fide and without notice of the mortgage.
Held, that evidence identifying the property and promissory note described
in the mortgage, as being the note and property in controversy, was
Held, also, that such judgment and the assignment thereof, and the papers
filed in the action wherein the judgment was obtained, as also the mort-
gage, were admissible in evidence.
Held. also, that the rendition of judgment on the note was no bar to the ac-
tion for foreclosure.
Held, also, that an attorney's fee for taking judgment in the foreclosure suit
can not be recovered.
Holmes v. Hinkle, 518
See CORPORATION, 1 to 4; PROMISSORY NOTE, 19 to 21.
CITIES AND TOWNS.
See CITY TREASURER; RAILROAD, 4.
1. Town.- Writ of Prohibition.-Action to Prohibit the Execution of Contract
for a Sidewalk.-A writ of prohibition will not lie, at the suit of a prop-
erty holder of an incorporated town, to prevent the execution of a con-
tract let by such town to a contractor, to construct a sidewalk along and
upon the realty of the plaintiff. Corporation of Bluffton v. Silver, 262
2. Same.-Jurisdiction.-Such proceeding would only be proper, if at all,
in such case, to prevent the making of the contract, for want of juris-
diction.
Ib.
3. Same.-Injunction.-The proper remedy in such case is by injunction. Ib.
4. Same.--Farming Lands.—The fact that more than twenty acres of such
real property is used only for farming purposes is not ground for pro-
hibiting the execution of such contract.
Ib.
5. Same.-Intention of Owner to Improve.-Notice. The fact that the prop-
erty holder was, at the time of the passage of the ordinance requiring its
construction, about to construct a sidewalk of a different kind from that
required by the ordinance but of which the council is not alleged to have
had notice, is not ground for prohibiting the execution of such contract. Ib.
6. Same.-Grade Lines.-Pleading. An allegation in the complaint, that
the "plaintiff ought not to be required to construct a sidewalk as afore-
said, because the defendant has not established grade lines, or set grade
stakes, to guide in the construction of the sidewalk," is not sufficient
ground for prohibition or injunction.
Ib.
7. Same.-Presumption.-Where it is not denied by the complaint, that
such town had adopted all such necessary ordinances for the construction
of sidewalks as by law she might, the presumption is that such ordi-
nances have been duly adopted.
Ib.
8. Same.-Necessity.--The allegation, that there was no necessity for the
construction of a sidewalk different from that which the plaintiff alleges
he was about to construct, is not ground for interfering with the execu-
tion of such contract.
Ib.
9. City--Complaint for Violation of Ordinance.-A complaint for a viola-
tion of a city ordinance need not set out such ordinance either in sub-
stance or by copy, it being sufficient to describe the same by its section,
number and date of adoption.
City of Goshen v. Kern, 468
10. Same.- Powers of Common Council.- Licensing Auctioneers.- Under
clause 38, section 53, of the general law for the incorporation of cities,
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