Rogers et al. v. The State, ex rel. Cox et al. held that a party building a dam across a stream must provide against unusual floods. We do not think these cases applicable to the one before us. There could be no negligence on the part of the appellee, of which the appellant can be heard to complain, unless, at the time he received the injury, the appellee was under some obligation or duty to him to repair its freight house. "Actionable negligence exists only where the one whose act causes or occasions the injury owes to the injured person a duty, created either by contract or by operation of law, which he has failed to discharge." Pittsburgh, etc., R. W. Co. v. Bingham, supra. Burdeck v. Cheadle, 26 Ohio St. 393; Town of Salem v. Goller, 76 Ind. 291. We have shown that the appellee owed the appellant no such duty. The judgment below should be affirmed. PER CURIAM. It is ordered, upon the foregoing opinion, that the judgment below be affirmed, at the costs of the appellant. No. 8947. ROGERS ET AL. v. THE STATE, EX REL. COX ET AL. PLEADING.-Bond.-Exhibits.-In a suit upon a bond, where the complaint does not aver that a copy of the bond is filed therewith, but there is annexed to it, under the heading "Copy of bond," an instrument in the form of a bond executed by the defendants, and such as is described generally in the complaint, a demurrer should be sustained. From the Monroe Circuit Court. J. W. Buskirk, H. C. Duncan, J. H. Louden and R. W. Miers, for appellants. J. F. Pittman, J. B. Mulky, R. A. Fulk, G.W. Friedley and E. D. Pearson, for appellees. 1 Rogers et al. v. The State, ex rel. Cox et al. BICKNELL, C. C.-This was originally a suit by the appellees, as widow and heirs of David Rogers, against James H. Rogers and Aquilla Rogers, on a bond given by James H. Rogers, as commissioner in a partition suit, to sell the real estate of which said David Rogers died seized, and which had descended to the appellees. The widow, Lucinda, had become the wife of Jasper Cox. After the commencement of this suit, James H. Rogers died; Aquilla Rogers became his administrator and was substituted for him as a defendant. The amended complaint stated the execution of the bond, by James H. Rogers as principal and Aquilla Rogers as surety, and that James H. sold the land for $6,000, and converted the money to his own use, and was removed by the proper court for failing to pay over the money when duly ordered thereto. The complaint avers a demand for the money from James H. Rogers, and a refusal by him to pay it, and prays for all proper relief. It avers that a former bond, executed by the same parties, was duly approved by the court, and that a copy thereof is filed with the complaint; that this first bond was for $13,200, and that the land was reappraised and its value fixed at $6,000, and that thereupon said James H. Rogers "executed the bond in suit in the penal sum of $12,000, with Aquilla W. Rogers, in the name of A. W. Rogers, as surety thereon, and under said bond sold said lands for $6,000, and received the purchasemoney therefor, which bond was filed with the clerk of said court in said cause." It is not stated by whom this bond was filed, nor that it was approved, and it is not stated that any copy of this bond is filed with the complaint. No copy of the first bond appears in the record, but immediately after the copy of the amended complaint, the following appears in the record: "COPY OF BOND. "Know all men by these presents, that we, James H. Rog Rogers et al. v. The State, ex rel. Cox et al. ers and A. W. Rogers, are bound unto the State of Indiana in the penal sum of $12,000. Sealed this - day of December, 1869. "Whereas said James H. Rogers has been appointed commissioner by the court of common pleas of Monroe county, Indiana, to sell certain lands belonging to Lucinda Cox, James Robinson, Mary S. Robinson, Jonathan L. Rogers and George B. McClellan Rogers, reported by commissioners not to be susceptible of partition without injury thereto to said parties: Now, if the said James H. Rogers shall faithfully discharge his duties in said trust as such commissioner and account for and pay over to the persons and parties entitled thereto the proceeds of the sale of said lands, then this obligation to be void, else to remain in force. (Signed) "JAMES H. ROGERS, This copy is not marked as an exhibit; it is not stated to be a copy of the bond sued on; its heading is simply "Copy of bond," and it is not a copy of the bond sued on; the bond in suit is set out in the bill of exceptions, and the recital of that bond differs from the recital in this "Copy of bond" by including the name of America Rogers as one of the owners of the lands. The defendants jointly filed a demurrer to the complaint for want of facts sufficient, etc., and the defendant Aquilla Rogers, for himself individually, filed a like demurrer. The overruling of these demurrers is assigned as error. It was held in The Peoria, etc., Insurance Co. v. Walser, 22 Ind. 73, that "in order that the court may know that the written instrument is filed with the pleading, as constituting the foundation of the particular action, it must be identified by reference to it, and making it an exhibit in that pleading." This language was adopted and re-asserted in Sinker, Davis & Co. v. Fletcher, 61 Ind. 276. See, also, Price v. The Grand Rapids, etc., R. R. Co., 13 Ind. 58; Hiatt v. Goblt, 18 Ind. 494; Cook v. Hopkins, 66 Ind. 208; Ohio, etc., R. W. Co. v. Nickless, 71 Ind. 271; Williams v. Osbon, 75 Ind. 280. Johns v. The State. Such a defect might have been cured by amendment in the court below, but after a demurrer this court can not regard it as amended. Utica Township v. Miller, 62 Ind. 230; Sinker, Davis & Co. v. Fletcher, supra; Johnson v. Breedlove, 72 Ind. 368. For the error of the court below in overruling the demurrers to the complaint, the judgment ought to be reversed. This result renders it unnecessary to consider the other errors assigned, which may not occur on an amended complaint. PER CURIAM.-It is therefore ordered by the court, upon the foregoing opinion, that the judgment of the court below be, and the same is hereby, in all things reversed, and this cause is remanded, with instructions to the court below to sustain the demurrers to the complaint. No. 9816. JOHNS v. THE STATE. CRIMINAL LAW.-Public Offence Act of 1881.-Where the act of April 14th, 1881, Acts 1881, p. 174, defines an offence described in earlier statutes, it abrogates the provisions of such statutes. SAME.-Desecration of Sabbath.-Constitutional Law.-The 95th section of the act of April 14th, 1881, Acts 1881, p. 194, does not grant immunities to one class of citizens which, upon the same terms, shall not belong to all, and is constitutional and valid. From the Marion Criminal Court. H. N. Spaan and F. Heiner, for appellant. D. P. Baldwin, Attorney General, W. W. Thornton, and J. B. Elam, Prosecuting Attorney, for the State. ELLIOTT, C. J.-The first question presented is: Which of the two acts declaring it a misdemeanor to engage in common labor on Sunday is in force, that of March 5th, 1881, or that Johns v. The State. of April 14th, 1881? Our conclusion is that the statute in force is that of the 14th of April. It is found in a general statute grouping together public offences. It was the evident purpose of the Legislature to embody in this general statute the substance of former laws defining offences, and prescribing punishment for felonies and misdemeanors. The legislators intended to supplant all former enactments by the provisions of the act entitled "An act concerning public offences and their punishment." Where this act defines an offence described in earlier statutes, it abrogates the provisions of those statutes. The 95th section of the act of April 14th, 1881, declares the law governing prosecutions for the offence of engaging in common labor on the first day of the week, and is the law which governs this case. The second question is this: Is the 95th section of the act of April 14th, 1881, in conflict with any constitutional provision? A long line of decisions affirms the validity of this law. It has been sustained against repeated assaults. It has been a part of the statutory law of the State since its organization. Cases old and new have sustained and enforced it. Rogers v. Western Union Telegraph Co., ante, p. 169, and authorities cited; Mueller v. The State, 76 Ind. 310. Like statutes have been upheld in almost all of the States of the Union. It is asserted that an objection against this statute is now urged, which has not been presented in any of the numerous cases decided by this court. This objection is, that the proviso which reads thus, "but nothing herein contained shall be construed to affect such as conscientiously observe the seventh day of the week as the Sabbath," brings the section under examination into conflict with section 23 of the Bill of Rights. This objection can not prevail. The constitutional provision referred to reads thus: "The General Assembly shall not grant to any citizen, or to any class of citizens, privileges or immunities which, upon the same terms, shall not belong equally to all citizens." The statute under immediate mention does not grant immunities to one class of citizens which, |