one of no common magnitude, and in expounding which the court was clear and distinct, and no sufficient evidence to charge the defendants, a court would fall far short of its duty should it permit its instructions to be totally disregarded by the jury, as they appear to have been in this case.

The judgment of the court below is reversed and the n.58 remanded.

Judgment reversed

MASTER IS NOT LIABLE FOR INJURIES TO SERVANT THROUGH NEGLIGENOR OF FELLOW-SERVANT engaged in a common employment, if the master has exercised proper care in selecting competent servants: Fox v. Sandford, 67 Am. Dec. 587, and note discussing the question; see also Cayzer v. Taylor, 69 Id. 317; Noyes v. Smith, 65 Id. 222; Albro v. Jaquith, 64 Id. 56, and note; Chicago etc. R. R. v. Swett, 45 Ill. 201; Chicago etc. R. R. v. Gregory, 68 Id. 284, 287; Chicago etc. R. R. v. Sullivan, 63 Id. 295; Chicago etc. R. R. v. Troesch, 68 Id. 550; Malone v. Western Transportation Co., 5 Biss. 318. The doctrine of respondeat superior is not applicable to cases of injuries sus tained by one servant through the negligence of a fellow-servant: Chicago etc. R. R. v. Taylor, 69 Ill. 464. The servant takes upon himself the hazards of his employment: Moss v. Johnson, 22 Id. 642; Chicago etc. R. R. v. May, 108 Id. 301; Chicago etc. R. R. v. Abend, 7 Ill. App. 133. So a servant who remains in the employ of a company when he knew the performance of the duties required of him would expose him to danger will be presumed to have voluntarily waived the risk, and whatever, if any, obligations rested on the company: Chicago etc. R. R. v. Donahue, 75 Id. 110; and while the master must use ordinary care to provide reasonably safe and fit appliances and structures for the use of the servant, yet he is not bound to provide against the danger arising from the unnecessary use of such appliances and structures for purposes to which the same are not adapted and designed: Chicago etc. R. R. v. Abend, supra. But where a person is commanded by a superior to do an act different from those which he had engaged to do, and is injured by another servant employed in this line of service, the common employer is liable to the servant injured: Lalor v. Chicago etc. R. R., 52 Ill. 403. The foregoing cases, except those from the American Decisions, cite the principal

case.

LEVY ON LAND WITHOUT DESIGNATION OF Kind, Quanziv, OR VALUN THEREOF IS VOID for uncertainty.

RETURNS CONTAINING INSUFFICIENT DESCRIPTION OF TRACT OF LAND LEVIED UPON IS VOID for uncertainty.

GREAT STRIOTNESS AND CERTAINTY ARE REQUIRED IN EX PARTE PROCEEDINGS without personal service on defendants,

PROCEEDINGS IN ATTACHMENT AGAINST REAL ESTATE ARE VOID FOR UN CERTAINTY, where there is no description of the property in either the sheriff's return or the judgment.

VOID ATTACHMENT PROCEEDINGS CANNOT BE EXPLAINED BY EXTRINSIC EVI DENCE, as they are matters of record.

TEE facts are stated in the opinion.

J. G. Jones and J. E. Blythe, for the appellant.

C. Baker, for the appellees.

This was

By Court, WORDEN, J. This was an action brought to recover the south-west half of a lot No. 60 in the city of Evansville. It is admitted that in February, 1823, one Thomas E. Alsop was the owner of the premises in controversy, and that he then conreyed the same by deed duly executed to the plaintiff.

The defendants set up for defense an adverse possession in themselves and those under whom they claim for twenty years rext before the bringing of the suit, and also a title in themselves, derived from a sale of the premises by the sheriff, as the property of the plaintiff, on a proceeding in attachment against him by one Thomas J. Dobyns. The cause was tried by a jury,

AM. DEO. VOL. LXXI-20

305

which resulted in a verdict and judgment for the defendants Motion for a new trial made and overruled, and exceptions taken, setting out the evidence. Under the statute of limita tions of 1843, which was in force when this suit was brought, an adverse possession, to be available, must have been exclusive and continuous for twenty years, under such circumstances as to show the party to be occupying upon a claim of ownership in himself of the premises: Law v. Smith, 4 Ind. 56. Whether a different rule shall prevail under the statute of 1852, it is unnecessary to determine. The evidence in the case is perhaps somewhat conflicting, and leaves some doubt as to the continuity of the defendants' possession for the necessary period; but if there was no other question involved but the one of adverse possession, we should not disturb the verdict as not being supported by the evidence.

The defendants, in order to support their claim of title in themselves under the proceedings in attachment in the suit of Dobyns v. Porter, offered and read in evidence the record of said proceedings, over the objection of the plaintiff, which was overruled by the court. From said record it appears that the sheriff levied the attachment on "one half of lot 60, in the town of Evansville," without designating the particular half, and there is nothing in the record to show what half was levied upon. The judgment in the attachment suit is, that "the estate hereto fore attached by the attachment in favor of said Thomas J. Dobyns, belonging to the defendant, Andrew Porter, be sold,* etc. There is nothing in the entire proceeding to show what particular half of the lot was attached or ordered to be sold.

The defendants also offered in evidence a deed from the sheriff, by virtue of a sale under the proceedings in attachment (over the objections of the plaintiff, which were overruled by the court), for the north-east half of lot No. 60 in the town of Evansville. It will be observed that the deed describes the opposite half of the lot from that in controversy in this suit.

Dobyns was the purchaser under the attachment, to whom the above deed was made, and under whom the defendants claim. The proceedings in the attachment and the sale were in 1823.

It may be further remarked that the execution on the attachment, as recited in the sheriff's deed, commanded him to make the money, etc., "of the lands and tenements of Andrew Porter, heretofore attached," without any description thereof. In reference to this branch of the defense, the plaintiff asked the

court to give the following instruction, which was refused, and exception taken, viz.: "The sheriff's return to the attachment in the case of Dobyns v. Porter, is void for uncertainty, and does not show the facts necessary to give the court jurisdiction, without the appearance of the defendant or process served on him."

The court thereupon gave the following charge, which was excepted to by the plaintiff, viz.: "If the jury believe from the evidence that the half of the lot, or particular part of it described in the complaint, is the same half lot which was levied · upon by the writ of attachment in evidence in this case, and the same that was sold by the sheriff of Vanderburgh county on the writ of execution issued on the judgment in attachment in the same case, and the same that was intended to be conveyed by the sheriff's deed to Thomas J. Dobyns, also in evidence, and that the same was misdescribed in the sheriff's deed by mistake, and that the said half lot in controversy is the one referred to in the return on the attachment, in the return to the execution, and in the sheriff's deed, and that the defendants have acquired the title then intended to be conveyed to Dobyns by the sheriff's deed by proper conveyances, then the jury will be authorized to find that the defendants are equitably entitled to the premises, and to find a verdict in their favor. If the facts are not sufficiently established by the evidence, the jury will leave the proceedings in attachment out of view in the consideration of this case, and determine the matters in controversy independently of those proceedings, as such proceedings aro irregular on their face, and can only be made available in this case by such proof as above indicated."

It is urged by counsel for the appellant that the charge above asked should have been given, and the one given by the court should have been withheld, because the proceedings in attachment were void (at least so far as the property in controversy is concerned), and cannot be aided by any parol or extrinsic evidence, and in this view we concur. We think the proceedings in attachment void for uncertainty as to the property attached and ordered to be sold; and that being matter of record, they could not be explained by extrinsic evidence. They were ex parte proceedings without personal service on the defendant, who did not appear, and in such cases great strictness and certainty are required. There was no judgment, except in rem, and that against an uncertain one half of the lot named. In the case of Law v. Smith, 4 Ind. 56, it was held that a levy on the property of the defendants without designation of the kind,

1

quantity, or value, without any memorandum removing the uncertainty, was void. In Waters v. Duvall, 6

it was held that a return by a sheriff to a writ that he had levied it upon a part of a tract of for uncertainty.

Gill & J. 76,

of fieri facias land. was void

Ir an attachment and sale of real estate, the property ought undoubtedly to be described with sufficient certainty to enable the purchaser to know the particular tract or parcel intended. This is not done in the case before us.

On the supposition that the sheriff intended to levy the attachment on the part of the lot in controversy in this suit, and sold the same, and intended to convey the same by his deed to the purchaser, we think that parol and extrinsic evidence is wholly inadmissible to show those facts.

The proceedings in attachment were matters of record, and where the law requires an entry to be made in a court of justice of particular transactions, the official entry excludes all independent evidence of the transaction: 1 Phill. Ev. 425.

We are of opinion that the court erred in leaving it to the jury to say whether or not the defendants had an equitable title derived from the proceedings in attachment, and that if so, they were authorized to find for the defendants. The charge asked by the plaintiff, above noticed, is substantially correct and should have been given.

Had there been no other question involved in the case but the one of adverse possession, as before remarked, we should not reverse the case on the evidence before us, but inasmuch as the evidence on that branch of the defense is not clear, and as the jury may have found their verdict on the paper title set up, wo think the judgment should be reversed.

The judgment is reversed, with costs. a new trial.

Cause remanded for

WHEN LEVY ON LAND WILL BE VOID FOR UNCERTAINTY OF DESCRIPTION: Waters v. Duvall, 33 Am. Dec. 693; Gilman v. Thompson, 34 Id. 714; Brown ▼. Dickson, 37 Id. 560; Taylor's Lessee v. Cozart, 40 Id. 655; Brigance v. Erwin's Lessee, 57 Id. 779.

PAROL EVIDENCE IS ADMISSIBLE TO IDENTIFY LAND mentioned in deed, when: See note to Henderson v. Hackney, 68 Am. Dec. 534.

WHETHER DESCRIPTION OF LAND IN RETURN OF ATTACHMENT SHOULD B AS CERTAIN as in the case of a deed may be doubted: See note to Whitaker . Sumner, 19 Am. Dec. 302.

THE PRINCIPAL CASE WAS CITED IN Munger v. Green, 20 Ind. 40, to the point that parol evidence cannot be admitted to cure a radical defect in the description of mortgaged land subsequently sold under execution. Such evi