The judgment is reversed with costs. Cause remanded, &c.

H. W. Chase and J. A. Wilstach, for the appellant. S. A. Huff, Z. Baird and J. M. Larue, for the appellee.

(1) Ante, 212. (2) Ante, 217.

Friday,
December 5.

STIPES V. THE STATE.

APPEAL from the Allen Court of Common Pleas. This was a prosecution commenced in June, 1854, before the mayor of the city of Fort Wayne, for keeping a house where spirituous liquors were sold in quantities less than a gallon, to be drank, &c., without license.

Trial, fine, and appeal to the Common Pleas. The mayor's record says a bond was filed and approved.

At the July term, 1855, of the Common Pleas, the appeal was dismissed on the motion of the prosecuting attorney, on the ground that neither bond nor recognizance could be found either in the office of the mayor, or on the files of the Court.

Per Curiam.-We think the appeal rightly dismissed in this case, for want of a bond.

The judgment is affirmed with costs.

W. March, for the appellant.

J. W. Gordon, for the State.

VICTORY V. FITZPATRICK.

Nov. Term, 1856.

MCLAUGHLIN

V.

December 5.

APPEAL from the Daviess Court of Common Pleas. THE STATE. Per Curiam.-Action to recover damages for an al- Friday, leged trespass upon the plaintiff's land. The record shows the alleged trespass to have been an entry, by the Evansville and Indianapolis Railroad Company, pursuant to a location of their railroad under their charter, for the purpose of constructing said road upon the location made.

The suit cannot be sustained. The statute provides a mode of redress and it must be followed. New Albany and Salem Railroad Company v. Connelly, 7 Ind. R. 32, and case cited. The President, &c., of the Crawfordsville, &c., Railroad Company v, Wright, 5 Ind. R. 252.

The judgment is reversed with costs. Cause remanded, with an order that it be dismissed. 0. H. Smith, for the appellant.

MCLAUGHLIN V. THE STATE.

Wheeler v. The State, ante, 113 affirmed; Hamilton v. The State, 3 Ind. R. 552, overruled as to the point of practice established in Wheeler v. The State.

APPEAL from the La Grange Circuit Court.

Per Curiam.-This case falls within that of Wheeler v. The State, at this term. The Court should have granted the continuance or required the admission of facts sworn to, agreeably to the rule of practice there laid down,—a rule which, upon reconsideration, we are satisfied with.

The provisions in the civil code do not necessarily govern in criminal practice; but it is reasonable to con

Friday,
December 5

Nov. Term, sult them, in the absence of special provisions in the 1856. criminal code, in establishing rules, as the Court must, THE STATE in relation to procedure in criminal cases. We think

V.

O'HAVER.

the case of Hamilton v. The State, 3 Ind. R. 552, should be overruled as to this point of practice.

The judgment below is reversed: Cause remanded for a new trial, and the keeper of the State prison is ordered to be notified pursuant to the statute, to return the prisoner, &c.

A. Ellison, for the appellant.

S. J. Stoughton, for the State.

Saturday,
December 6.

THE STATE on the relation of MCCLAIN v. O'HAVER and
Others.

Suit on a sheriff's bond. Breach, levying on real estate when the exe-
cution-defendant, who is relator, had personal property subject to exe-
cution sufficient to pay the debt. Answer-1. A general denial. 2.
That the land was sold with the knowledge and consent of relator;
that it was purchased for him by one B.; and that relator furnished
the money. 3. That relator gave up the lands on execution. Reply,
taking issue upon the second and third paragraphs. Trial by the
Court. Finding against relator.

Held, that there was no issue upon the second clause of section 444, 2
R, S. p. 136.

Held, also, that if there was evidence tending to show that relator's
messuage was sold, it was irrelevant.

The Supreme Court will not scrutinize closely questions upon the weight of evidence, like that made in this case under the third issue.

APPEAL from the Hendricks Circuit Court.

STUART, J.-Suit on the official bond of O'Haver as sheriff. The issues were tried by the Court; finding and judgment for the defendants. The State, (McClain relator,) appeals.

The evidence is all made part of the record in proper Nov. Term, 1856. form. THE STATE

V.

The several breaches assigned are substantially the same, viz., that O'Haver as sheriff, &c., having in his O'HAVER. hands an execution for 130 dollars against McClain, levied upon and sold certain real estate while the execution-defendant had personal property subject to execution, of the value of 2,000 dollars.

It appears that the real estate sold on execution for 268 dollars, was alleged to be of the value of 1,200 dollars.

The State answered the breaches in several paragraphs. The fourth and fifth paragraphs of the answer were held bad on demurrer. As no error is assigned on this ruling of the Court below, nor exceptions taken, no question is before us on the demurrers.

The other paragraphs led to issues of fact. The first is a general denial and issue.

The second paragraph sets up that the land was sold with the knowledge and consent of McClain; that it was purchased for him by one Baker; and that he, the relator, furnished the money.

The third paragraph alleges that McClain gave up the land on execution.

The State replied, denying the matter set up in the second and third paragraphs.

On these issues the cause was submitted to the Court for trial. Finding, as above, against the relator.

It is insisted in argument, that in overruling the motion for a new trial, the Court below failed to give a proper construction to section 444, 2 R. S. p. 136. The section referred to provides that, "In all cases where the personal estate of the debtor, subject to execution, is insufficient to satisfy the execution, the real estate shall be exempt from levy and sale until the personal property is levied upon and sold, unless the debtor shall direct otherwise." It is further provided, that the messuage, or place of residence, shall be exempt from levy, unless

Nov. Term, other property sufficient to satisfy the debt cannot be 1856.

JARVIS

V.

STRONG.

found.

On the second clause of the section there is no issue in the record. If there is evidence tending to show that McClain's messuage was sold, it must be disregarded as irrelevant. The pleadings make no direct issue on the sale of the messuage.

The evidence tends to make such a case, under the third issue on the first clause of the section, that even if we were dissatisfied with the finding, we should not feel at liberty to disturb it. It is a question on the weight of evidence, which will not be scrutinized very closely. Per Curiam.-The judgment is affirmed with costs. C. C. Nave, for the State.

J. S. Harvey, H. C. Newcomb and J. S. Miller, for the appellee.

Saturday,
December 6.

JARVIS V. STRONG.

A demurrer for causes, and in terms, not authorized by the practice act, cannot be sustained.

The bill of exceptions in this case closed by stating that "the above were the rough minutes of the Court, including the material points of the evidence." Held, that this is not sufficient under the 30th rule. The bill must in terms purport to contain all the evidence given in the

case.

Where the evidence is not in the record, this Court will presume that instructions given by the Court below were pertinent to the case made, unless they are clearly erroneous under any state of facts.

APPEAL from the Union Court of Common Pleas.
STUART, J.-In this case several errors are assigned.
1. In overruling a demurrer to a paragraph of the

answer.

The demurrer was for causes, and in terms, not au