the debt secured by the trust deed has all been paid, except one bond, which is 20 years overdue, and is in possession of the mortgagor's receiver, no other person having any interest there in, the trustee should be required to transfer the trust property to the receiver.-Wilson v. Welch, (Mass.) 81 N. E. 712. Action by Authority to sue for recovery of property. 3. The receiver of a corporation appointed by a court of equity cannot sue in his own name to recover property of the corporation which has never been in his possession nor been assigned to him, where authority to bring such suit has not been conferred on him by statute or by decree of court.-Wilson v. Welch, (Mass.) 31 Ñ. E. 712. - Defense of failure to give bond. 4. Where the decree appointing a receiver for a corporation does not require him to give bond, the fact that he has not given bond is no defense to a suit brought by him to recover property belonging to the corporation.-Wilson v. Welch, (Mass.) 81 N. E. 712. Liability of sureties. 5. An action at law for the default of a receiver cannot be maintained against his sure ties before an accounting of the receivership. 10 N. Y. S. 468, affirmed.-French v. Dauchy, (N. Y. App.) 31 N. E. 1041. RECORDS. son then gave her his note for the amount due her 2. In an action for the forcible eviction of plaintiff from his place of business, and injury to his property and business, defendant alleged and proved a general release under seal, executed after the cause of action accrued, absolving defendant from all liability for any demand or cause of action which plaintiff might have against it, either on contract or in tort, and especially for all tresparses committed by it. Prior to the execution of the release there had been a long and bitter contention between the parties, resulting in suits and counter suits, arrests of plaintiff, and the execution by him of a bill of sale to defendant, which were intended to be settled by the release. There was evidence that when plaintiff signed the release he did not know of the damage to his property, and that neither he nor defendant's officers intended to include in the release the present cause of action; or, if the latter did so intend, they concealed such intention and the condition of the property from plaintiff. Held, that an instruction that the general terms of the release would not be allowed to operate on a right of action not mentioned in the preliminary discussion that led up to such release was erroneous.— Y. App.) 31 N. E. 1104. Of chattel mortgage, see "Chattel Mortgages," 2. Kirchner v. New Home Sewing Mach. Co., (N. On appeal, see "Appeal," 25-31. Action to establish title under burnt records act-Evidence of title. 3. In an action for the forcible eviction of plaintiff from his place of business, and injury to his property and business, defendant alWhere the copies, minutes, and extracts leged and proved a general release under seal, from burned records show an agreement by a executed after the cause of action accrued, railroad company, once the owner of the land in absolving defendant from all liability for any suit, which refers to a deed of trust made by demand or cause of action which plaintiff might that company to certain trustees, conveying the have against it, either on contract or in tort, lands in question, and the recitals in the agree- and especially for all trespasses committed by ment and the grant to the company show that the it. The instrument at the end had a special lands were conveyed by the company to the trus provision to the effect that plaintiff should not tees to enable the latter to make sales, it is erinterfere in any manner with any sales of sewror to find another person owner thereof in fee ing machines theretofore made by him for dein the absence of proof that a deed had ever been fendant, nor the collection of amounts due executed by such trustees.-Converse v. Wead, thereon. Held, that the special provision was (Ill. Sup.) 31 N. E. 314. not a part of the release, and an instruction that the general terms of the release would not be allowed to operate on any right of action not covered by such special provision was erroneous.-Kirchner v. New Home Sewing Mach. Co., (N. Y. App.) 31 N. E. 1104. Redemption. From foreclosure, see "Mortgages," 15, 16. Reformation. Of contracts, see "Equity," 3. See "Appeal," 34. Rehearing. RELEASE AND DISCHARGE. See, also, "Payment." Of dower, see "Dower." Of surety, see "Principal and Surety," 2. What constitutes. 4. An instruction that a release by plaintiff did not cut off his right to recover for any injury to him or his property, of which he did not know at the time he signed it, is erroneous.Kirchner v. New Home Sewing Mach. Co., (N. Y. App.) 31 N. E. 1104. 5. Where plaintiff can show that by mutual mistake, or by mistake on his part and fraud on the part of defendant, his present cause of action was embraced in a release contrary to the intent of the parties, or contrary to his intent in case fraud of defendant is shown, such release is not a bar to his recovery.-Kirchner v. New Home Sewing Mach. Co., (N. Y. App.) 31 N. E. 1104. Impeachment-Tender. 6. Where plaintiff seeks to recover on a cause of action existing at the time of the execution by him of a general release to defendant, on the ground that such cause of action was not included in the release, he is under no ob ligation to return, or tender a return of. what he received when he signed the release.-Kirchner v. New Home Sewing Mach. Co., (N. Y. App.) 31 N. E. 1104. 1. A father devised his real estate to his son, provided he would pay the father and mother, or, on the death of either, the survivor, a certain amount yearly, and give them "board and house room" as long as they lived. After the father's death, the mother executed to the son a quitclaim deed of the land, thereby releasing all claims held by her under the will. In consideration of this deed, the son executed to his mother a written contract, by which he agreed to pay her a less amount yearly than the will allowed her, and board her as long as she lived, she agreeing to release the land from any lien thereon for the purchase money named in the contract, and that the contract should be no lien on the same. The See "Wills," 19-28. Remainder. REPLEVIN. Of fee bill, see "Costs," 12. Verdict. REPORT AND CASE MADE. When allowed. * by Rev. St. 1881, § 553, providing that "par ties shall have the right in all cases, agreement to that effect, to submit any matter of controversy between them to any court that would otherwise have jurisdiction of such cause, upon an agreed statement of facts, to be made out and signed by the parties," does not apply to claims against decedents' estates, the filing and allowance of which are governed by a special statute, (Rev. St. 1881, § 2310, Elliott's Supp. 8385.)-Henas v. Henas, (Ind. App.) 31 N. E. 832. 1. Rev. St. 1881, § 549, provides that, in an action for the recovery of specific personal property, the jury must assess the value of the property, and the damages for detention, when, by their verdict, there will be judgment for the return of the property. Section 572 provides that judgment for plaintiff may be for the return of the property, or the value thereof, in case a delivery cannot be had, and damages for detention. Held that, where the jury finds for plaintiff, it must fix the value of the property, and assess the damages for detention, whether the plaintiff did or not demand by his See "Deceit." action the immediate delivery of the property.Farrar v. Eash, (Ind. App.) 31 N. E. 1125. Judgment. Representations. Rescission. Of contracts, see "Contracts," 15-17; "Equity," 5-9; "Tender." Res Judicata. 2. Where the jury finds for plaintiff, and fixes the value of the property, and assesses damages for detention, the court should render an alternative judgment for the return of the property, or its value and damages.-Farrar v. See "Judgment," 7-20. Eash, (Ind. App.) 31 N. E. 1125. RIPARIAN RIGHTS. See, also, "Waters and Water Courses." Erection of embankment-Injury to opposite owner. 5. A replevin bond was conditioned to "prosecute this action with effect, and return the property to defendant, if return be adjudged by the court, and pay all such sums of money as may be recovered in the action for any cause whatever." The writ was dismissed without trial. Held 1. Where the owner of land abutting on a that, though no judgment for return of the prop-nonnavigable stream constructs an embankment erty could be entered on the dismissal of the writ, the condition of the bond was broken by into the channel, and the embankment forces in front of his premises, extending somewhat the failure to prosecute, and the surety was liable in a suit on the bond for the value of the the water during an unusual freshet on the land land, such owner is liable. on the opposite shore, and so wears away the 16 N. Y. S. 714, affirmed.-Hartshorn v. Chaddock, (N. Y. App.) 31 N. E. 997. property.-Peffley v. Kenrick, (Ind. App.) 31 N. E. 40. Action on bond. 6. It is no defense to an action on a replevin vond that the property could not be returned be. cause it had been burned up after it was re plevied. Suppiger v. Grauz, 27 N. E. 22, 137 III. 216, followed.-Schott v. Youree, (Ill. Sup.) 31 N. E. 591. 2. Where the owner of land abutting on a nonnavigable stream constructs an embankment in front of his premises, extending somewhat into the channel, and the embankment forces the water during an unusual freshet on the land on the opposite shore, proof as to the cost of restoring the land, and of the diminution in its market value, is alike admissible in an action for damages, as either measure is likely to obtain, according as the one or the other is found to be the less.-Hartshorn v. Chaddock, (N. Y. App.) 31 N. E. 997. 7. Where a replevin bond is made payable to the coroner "and to his successors in office, execvtors, administrators, and assigns," the coroner may bring suit thereon in his own name after the expiration of his term of office, since under Rev. St. 1874, c. 119, § 25, which authorizes the offi. cer to whom a replevin bond is given to sue thereon if at any time the condition of the bond is broken, the successor of the officer has no right See "Riparian Rights;" "Waters and Water to sue on the bond. 41 Ill. App. 476, affirmed.Schott v. Youree, (Ill. Sup.) 31 N. E. 591. 8. It is no defense to an action on a replevin bond that it is brought in the name of the officer to whom it was given, for the use of a person other than defendant in the replevin suit, since the allegation as to whose use an action is brought is not traversable, and need not be supported by proof. Blatchford v. Boyden, 13 N. E. 801, 122 III. 657, distinguished. 41 Ill. App. 476, affirmed.-Schott v. Youree, (Ill. Sup.) 31 N. E. 891. Construction of contract. 1. Defendants agreed to buy and plaintiffs to sell 4.000 barrels, to be delivered at defendants' mill by January 1st. It was further agreed that defendants should buy of plaintiffs all the barrels they should use for one year from the date of the contract, the barrels to be "first class," and the agreed price to be paid in cash. Held, that there was an executory contract to sell, rather than an absolute sale; and when any quantity of barrels was delivered and accepted pursuant thereto, plaintiffs were entitled to full payment at the contract price for the number so delivered, though the entire number mentioned in the contract was not delivered at the time specified.-Neal v. Shewalter, (Ind. App.) 31 N. E. 848. Warranty. 2. Where the sale of a binder is made by agents on their own account, upon the understanding that if it does not work successfully, and the manufacturers have meanwhile become insolvent, they themselves will receive it back, and the warranty, also of the manufacturers, upon which such sales are usually made, is adopted, declaring that before the binder can be returned notice must be given to the manufacturers, and an opportunity given to remedy the defect, it is not necessary to notify the manufacturers, in order to defend successfully against an action by the agents for the price, where such notice was given to the agents.Campbell v. Wray, (Ind. App.) 31 N. E. 824. 3. A manufacturer and dealer in painters' materials stated to a customer that all goods he sold thereafter would be warranted as represented, and that he had a varnish made from pure gum shellac and pure wood alcohol, which would dry and was quick in hardening, and was suitable for use on moldings. A sample cask was ordered, and the customer told that future sales would be warranted equal to that. Six months after, a barrel was ordered "same as the cask," and, two months later, another "same as the last." Held, that the varnish sent to fill this order was warranted made of pure gum shellac and pure wood alcohol, suitable for use on moldings, and equal to the sample. 10 N. Y. S. 651, affirmed.-Moore v. King, (N. Y. App.) 31 N. E. 624 4. Where an elevator was of ample capacity under its proper steam power, and the question was whether the contract warranted its capacity when the power was furnished by water pressure instead of by steam, evidence that the two kinds of power are so different in their mode of operation as to require different kinds of machinery and appliances is competent.-Whittier Machine Co. v. Graffam, (Mass.) 31 N. E. 485. 5. Evidence showing a subsequent oral warranty varying a bilateral, executory written contract, is admissible as evidence of modification. -Thomas v. Barnes, (Mass.) 31 N. E. 653; Barnes v. Thomas, Id. 6. A contract for the sale of two hydraulic elevators provided that the seller should furnish the necessary steam pumps, pressure tanks, and piping, and connect the pressure tanks with the street water mains, so that the elevators could be operated by such water pressure, and in regard to the water pressure the contract declared that "this is for use when boiler or pump is out of order, or where the expense of running the boiler would be greater than the expense of the city water. By this arrangement you can run either your boiler and pump, or take the supply direct from the street pressure." Held, that the contract did not warrant that the specified capacity of the elevators could be maintained, under pressure from the street mains, without the steam pumps.-Whittier Machine Co. v. Graffam, (Mass.) 31 N. E. 485 7. Where a purchaser orders a certain machine by letter, stating that it is to do specific work, and the seller answers, accepting the orders, and stating, "You may rely on having a first-rate machine, which will do your work in a satisfacLory manner" these last words are not mere words of commendation, but are to be construed as part of the contract, and constituting a warranty.-Whitehead & Atherton Mach. Co. v. Ry der, 31 N. E. 736, 139 Mass. 366. Pleading. ranty should be pleaded as an undertaking made 8. A statement of the seller alleged as a warby him as part of the contract of sale, with intent that it should be relied on, and that it induced, or was in consideration of, the purchase. Lincoln v. Ragsdale, (Ind. App.) 31 Ñ. E. 581. 9. A complaint for alleged breach of warranty of a jack is insufficient which alleges that knew the animal was not a sure foal getter and defendant's representations were false, that he was worthless, but does not allege that he was not a sure foal getter and was worthless.-Lincoln v. Ragsdale, (Ind. App.) 31 N. E. 581. which alleges false representations of defendant is insufficient when it does not allege that defendant intended that plaintiff should rely on these false representations.-Lincoln v. Ragsdale, (Ind. App.) 31 N. E. 581. 10. A complaint for alleged breach of warranty Damages for breach. 11. Where a machine is purchased from an English manufacturer under a warranty that it will do certain work in America, the measure difference between the contract price of the maof damages for breach of the warranty is the chine and its value in America to the purchaser, including expenses incurred by the purchaser for alterations and changes made on the machine in order to get it to do the work for which it was purchased.-Whitehead & Atherton Mach. Co. v. Ryder, 31 N. E. 736, 139 Mass. 366. 12. In an action for breach of warranty on the sale of varnish, it was shown that the moldings on which the varnish was used would have been worth 10 cents a foot if it had been as warranted, but were in fact worth only 5 cents; and that the difference of 5 cents a foot would be the expense of taking of the old finish and putting on a new one. The defendant knew that the varnish was to be used on moldings, and warranted it suitable. The defect could not have been discovered before it was applied. Held, that a finding allowing as damages 5 cents a foot will not be disturbed. 10 N. Y. S. 651, affirmed.-Moore v. King, (N. Y. App.) 31 N. E. 624. Failure to accept goods. 13. Defendants agreed to buy and plaintiffs to sell 4.000 barrels, to be delivered at defendants' mill by January 1st. It was further agreed that defendants should buy of plaintiffs all the barrels they should use for one year from the date of the contract. Held that, since title to the barrels did not pass until delivery, where a quantity of the barrels was destroyed by fire while in plaintiffs' possession, after defendants' refusal to receive them, plaintiffs can only recover for those so destroyed the difference between the contract price and the market value at the time defendants made default.Neal v. Shewalter, (Ind. App.) 31 N. E. 84S. 14. In an action for the difference between the contract price and the market value of goods sold, plaintiffs may recover under a general allegation for damages.-Neal v. Shewalter, (Ind. App.) 31 N. E. 848. 15. Defendants agreed to buy and plaintiffs to sell 4,000 barrels, to be delivered at defendants' mill by January 1st. It was further agreed that defendants should buy of plaintiffs all the barrels they should use for one year from the date of the contract. Held that, where plaintiffs had a quantity of barrels ready for delivery, though after January 1st, but before tender at the place agreed on were notified by defendants not to deliver them, plaintiffs' measure of damages is the difference between the contract price and the market value.-Neal v. Shewalter, (Ind. App.) 31 N. E. 848. 16. In an action to recover the price of barrels delivered and accepted under an executory contract of sale which stipulated that the should be "first class," plaintiff needed not to allege that they were "first class."-Neal v. Shewalter, (Ind. App.) 31 N. E. 848. Action for price. 17. Default in the payment of notes given for merchandise constitutes a breach of contract justifying the seller in treating the contract as rescinded, and suing for the value of the merchandiso already furnished. 11 N. Y. S. 329, af. firmed --Kokomo Strawboard Co. v. Inman, (N. Y. App. 31 N. E. 248. Buyer's rights and remedies. 18. Where it is provided in the sale of a machinc that before it shall be returned for defects notice of, and an opportunity to remedy, the defects shall be given, such notice, in the absence of any effort to remedy the defects, is equivalent to notice of a desire to return the machine, and a specific offer, therefore, to return is not necessary.-Campbell v. Wray, (Ind. App.) 31 N E. 824. 19. A buyer of coffee bearing the name of a district in Java in which it is grown is not bound to accept coffee which is not so well known, and which does not command so high a price, bearing the name of a plantation in an adjoining district. 8 N. Y. S. 426, affirmed. -O'Donohue v. Leggett, (N. Y. App.) 31 N. E. 269. 20. Evidence that the buyer and others had, in ignorance, on other occasions accepted coffee of the sort tendered as of the kind he had pur. chased, and that the same mistake had been made by other importers in selling coffee, was insuff. cient to show that the name of the coffee purchased had a trade significance, and that it applied to the sort tendered. 8 N. Y. S. 426, affirmed.-O'Donohue v. Leggett, (N. Y. App.) 31 N. E. 269. 21. A buyer of coffee cannot justify his refusal to accept the coffee tendered on the ground that it is contained in a fewer number of piculs than was contracted for, when the coffee was sold by the pound, and to be weighed, and its aggregate weight amounted to the number of piculs contracted for, allowing to each the number of pounds sometimes contained in a picul: especially as the refusal to accept it was not at the time based on the deficiency. 8 N. Y. S. 426, affirmed. -O'Donohue v. Leggett, (N. Y. App.) 31 N. E. SCHOOLS AND SCHOOL-DIS- Rebuilding school house, see "Towns," 1. Division of school districts. 1. St. 1881, o. 172, providing for the incorporation of a new town out of a portion of the territory of an old one, declares in section 6 that "the annual excess, if any, of maintaining the public schools" in the old town over and above the expense of maintaining the public schools in the new town, if not agreed on by the two towns, shall be ascertained by commissioners "on the basis of the average number of scholars in the public schools of legal age" for the year preced ing, and that the new town shall pay, of such excess, a sum proportioned to the excess of its property valuation over the property valuation of the old town. Held, that by "the average number of scholars" in the schools was meant the membership of the schools as shown by the school register, not the average attendance.-Inhabitants of Needham v. Inhabitants of Wellesley, 31 N. E. 732, 139 Mass. 372. statute, included all members of the schools un2. The term "legal school age," in the above der the age of 21 years, as Pub. St. c. 47, § 4, provides that all "children" may attend the public schools. Inhabitants of Needham v. Inhabitants of Wellesley, 31 N. E. 732, 139 Mass. 372. 3. Under the above act (St. 1881, c. 172, § 6) the grades of the different schools are not to be considered in determining the excess of the cost of maintaining the schools in the old town, nor the fact that there is a larger proportion of high schools in the new town than in the old.-Inhabitants of Needham v. Inhabitants of Wellesley, 81 N. E. 732, 139 Mass. 372. Meeting of trustees-Election of superintendent. 4. Where the school trustees meet on the 1st of June, as required by the statute, for the purpose of electing a school superintendent, and continue in session and to ballot until he is elected by them, the fact that the election is made after midnight does not render it invalid. -State v. Vanosdal, (Ind. Sup.) 31 N. E. 79. Taxation. 5. Rev. St. 1881, §§ 4467, 4468, provide that the trustees of cities shall have the power to levy a special tax for school purposes, within certain limitations, and make it the duty of the county auditor to make the proper assessment of special school tax levied by the trustees, and extend the same on the tax duplicate. Held, that such trustees have the exclusive right to determine the amount of and make such levy within the limits prescribed, without any action by the board of commissioners of the county, since the latter are not charged with any duty relating to the levy or assessment of such tax.-Wood v. School Corporation of Tipton, (Ind. Sup.) 31 N. E. 799. 6. Where the trustees of plaintiff, a school corporation, made a levy of a special school tax within the limit prescribed by law, the county auditor had no authority to reduce the levy and make the assessment at a lower rate under the directions of the board of commissioners of the county, and an action will lie to compel him to make the assessment as ordered by such trustees.-Wood v. School Corporation of Tipton, (Ind. Sup.) 31 N. E. 799. 7. Under Rev. St. § 5995, requiring the levy of township taxes for general purposes to be concurred in by the county commissioners, and sectowns, and cities to levy a special school tax, not tion 4467, empowering trustees of townships, to exceed a certain amount, it is unnecessary that the county commissioners concur in a levy of a special school tax by a township trustee. -Cole v. State, (Ind. Sup.) 31 N. E. 458. 8. The fact that it appears to the county auditor that the levy by the county commissioners is sufficient for special purposes, and that the levy by the township trustee is unnecessary, furnishes no around for his refusal to make an assessment thereon.-Cole v. State, (Ind. Sup.) 31 N. E. 458. SEAMEN. Assault by captain-Liability of owner. 1. The owners of a vessel are not liable, even under the maritime law, for a willful and malicious assault by the captain of the vessel on a seaman who refuses to obey a command on the plea of sickness, since, in committing the assault, he exceeds his authority. His command does not extend over the persons of the seamen beyond the infliction of usual and necessary punishment in case of disobedience or infraction of rules. Maynard, Finch, and holder thereof for value.-Armstrong v. War O'Brien, JJ., dissenting. 14 N. Y. S. 125, ner, (Ohio Sup.) 31 N. E. 877. and 15 N. Y. S. 976, reversed.-Gabrielson v. Waydell, (N. Y. App.) 31 N. E. 969. 2. Where a captain of a vessel is not acting within his authority in committing an assault on a seaman, it is the tortious act of a fellow servant, and not an act of a vice principal, for which the owners of the vessel are liable. Maynard, Finch, and O'Brien, JJ., dissenting. 14 N. Y. S. 125, and 15 N. Y. S. 976, reversed.-Gabrielson v. Waydell, (N. Y. App.) 31 N. E. 969. Lien for wages. Settlement. See "Payment;" "Release and Discharge." Of bill of exceptions, see "Exceptions, Bill of," 5, 6. SHERIFFS AND CONSTABLES. Fees. 1. Rev. St. 1881. § 6115, provides for the 3. Rev. St. U. S. §§ 4391-4394, providing the county. Section 6118 provides that the sher keeping of a jail for prisoners at the expense of that the master of a vessel employed in the codiff shall keep the jail. Section 5873 provides that or mackerel fisheries shall agree in writing with the sheriff shall have a certain fee for receiving the fishermen employed that the fish caught which belong to the fishermen shall be divided other provision is made for the payment of such and discharging inmates. Held that, where no among them in proportion to the quantities they fee, it becomes a part of the expense of keeping have respectively caught, and that when any of the fish are delivered to the owner for cure, and the jail. Black, J., dissenting.-Hawthorn v. are sold by him, the vessel shall be liable for the Board Com'rs Randolph County, (Ind. App.) fishermen's share of the fish, but that any fisherman may also have his common-law remedy for the fish or the proceeds of their sale, neither give to the fishermen a lien for wages on the fish caught and on the proceeds of their sale, nor recognize the existence of such a lien. Holmes, Knowlton, and Morton, JJ., dissenting.-Story v. Russell, (Mass.) 31 N. E. 753. Secretary of State. Mandamus to, see "Mandamus," 3. SEDUCTION. Corroboratory evidence. Rev. St. 1881, § 1807, provides that in prosecutions for seduction "the evidence of the female must be corroborated to the extent required as to the principal witness in cases of perjury." Held, that where the only corroborating evidence was that defendant stated to a witness that the female "was a good girl, and he expected to make her" his wife, it was insufficient to sustain a conviction, assuming that it tended to corroborate the testimony of the female that her seduction was accomplished under promise of marriage.-La Rosae v. State, (Ind. Sup.) 31 N. E. 798. Senate and Assembly Districts. Reapportionment, see "State Legislature." Service. Of process, see "Writs," 1. SET-OFF AND COUNTER- After assignment of claim. 1. A person holding a claim against one who has assigned for the benefit of his creditors cannot offset it against a demand of the insolvent estate on him, unless such claim was due at the time of the assignment. Rothschild v. Mack, 42 Hun, 72, disapproved. Myers v. Davis, 22 N. Y. 489, followed.-Fera v. Wickham, (N. Y. App.) 31 N. E. 1028. 2. When the holder of a claim not yet due, arising upon contract, becomes insolvent, and transfers the same before maturity, and the debtor at the time of the transfer holds a similar claim, then due, against the assignor, his right of set-off is preserved against the assignee when the latter's cause of action arises; and a surety on the obligation so transferred may enforce the set-off for his own protection if the principal debtor be insolvent, but the rule does not apply where commercial paper is transferred, and the assignee becomes the bona fide 31 N. E. 1124. sheriff of each county shall attend upon and 2. Rev. St. 1881, § 5868, prescribes that the preserve order in all courts of record of his counvides that, where a sheriff shall perform services ty except justices' courts." Section 5874 profor his county under requirement of law for which there is no provision for payment, the board of county commissioners shall pay such sheriff the same compensation allowed by law for similar services, and that the sheriff shall have two dollars for each day's actual attendance upon court. Held, that the county is liable to the sheriff for compensation for attending and preserving order in the courts.-Miller v. Boone County, (Ind. App.) 31 N. E. 1123. Unlawful seizure by constable-Breaking door. 3. A constable, having in his possession a writ of replevin for a sewing machine, was admitted into the dwelling house of a third person with whom defendant in replevin was living, and, after ascertaining that the machine was there, left without serving his writ. Returning later in the day, he forced open the outer door of the house, which had been partially opened by the householder, but which she was endeav oring to close on ascertaining who was there. Held that, as the authority to break into a building or inclosure conferred in replevin by Rev. St. 1881, § 1271, is confined to sheriffs, the constable was guilty of a trespass, which rendered his subsequent acts unlawful, and justified the householder in resisting by force his further progress in serving the writ. 26 N. E. 553, reversed.-State v. Beckner, (Ind. Sup.) 31 N. E. 950. 4. The sewing machine being in the house in question without fraud, the mere fact that the householder shifted it to another room after the constable had left on his first visit, and substituted another in its place, did not authorize him to force the outer door on his second visit; he being necessarily in ignorance of the exchange, and having the right, when doors in the discharge of his duties.-State v. once lawfully admitted, to break down inner Beckner, (Ind. Sup.) 31 N. E. 950. Liabilities on bond. 5. Rev. St. 1881, § 1271, confers authority only upon sheriffs to break into a building to serve a writ of replevin. Held that, where a constable, having a writ of replevin for a sewing machine, is admitted into the dwelling of a third person, with whom defendant in replevin is living, but leaves without serving the writ, and, returning later, forces open the outer door, he is guilty of unlawful conduct in the actual discharge of his duties, and is not acting merely by color of his office; and the sureties on his bond are therefore liable for injuries sustained by the householder in attempting to prevent him from serving the writ.-State v. Beckner, (Ind. Sup.) 31 N. E. 950. |