Kiser et al. v. Winans. that judgment had been recovered, and the circumstances leading to the belief that Comparet paid said judgment before he died, which was in 1845; and charges that he did so pay it, and that Nichols fraudulently assigned it; that said Kiser was a surety only in the note upon which the judgment was originally obtained; that at the time of said revival, in 1847, he did not know of any evidence by which he could prove the payment of said judgment; nor was he able after the exercise of due diligence to discover any; that he but recently. discovered said evidence, and was preparing to institute proceedings, &c., when the notice was served, &c. The facts are set up by way of cross-complaint, and relief prayed, &c. These two paragraphs were sworn to. To them a demurrer was sustained. On the trial the defendant offered to prove the payment by Comparet before his death; the evidence was excluded, and perhaps properly, under the issues as they stood, as under a simple plea of payment, it may be that evidence of payment before the rendition of the judgment should not have been received. But the demurrer was wrongfully sustained to the third and fourth paragraphs of the answer. One of the first causes for granting a remedial writ of injunction, and among the most ordinary, is to stay proceedings in courts of law. Eden on Injunctions, pp. 1, 2; 1 Mad. Ch. Pr. 106. That a judgment is not conclusive, in equity, as to payments made before its rendition, but the evidence of which was not then available after the use of the utmost diligence. See 2 Story's Eq., § 879. Under the code our pleadings assume the forms of chancery proceedings. It is not clear that the ruling on the demurrer to the notice was right, as such notice did not state that the judgment was not paid, except as in the affidavit accompanying it, nor state how much of it was due. See Bennett v. Wainwright, 16 Ind. 211; Price v. The Grand Rapids, &c., R. R. Co., 13 Ind. 58. But however this may be, the record professes to contain all The Indianapolis and Cincinnati R. R. Co. v. Elliott. the evidence, and there was none upon the point of the amount due upon said judgment, other than the record of said judgment and the affidavit upon which the notice was based. As to this, see authorities last above cited. Per Curiam.-The judgment is reversed, with costs. Cause remanded. D. H. & John Colerick, for the appellant. THE INDIANAPOLIS AND CINCINNATI R. R. Co. v. ELLIOTT. RAILROADS STATUTES CONSTRUED.-The act of 1859, (Acts 1859, p. 105,) is prospective, only, in its operation, and applies to animals killed or injured after the taking effect of the law. All animals killed at any one time constitute a separate and indivisible cause of action, and where their value exceeds 50 dollars, the Circuit Court or Court of Common Pleas has original jurisdiction, but not otherwise. APPEAL from the Dearborn Circuit Court. WORDEN, J.-Action brought originally in the Circuit Court by the appellee against the railroad company, to recover, under the statute, for stock killed upon the road where it was not fenced. Verdict and judgment for the plaintiff for 343 dollars. The questions involved in the case can be gathered from the following statement of the plaintiff's losses, made by himself as a witness in the cause: 1. A red heifer, July 20, 1859, worth.... ...$15 00 30 00 2. The yoke of cattle, August 4, 1859, worth............100 00 3. A cow, August 6, 1859, worth....... The Indianapolis and Cincinnati R. R. Co. v. Elliott. 4. A heifer, August 10, 1859, worth...... 5. A red steer, August 11, 1859, worth 15 00 36 00 ... 20 00 7. A 3 year old steer, August 28, 1859, worth............ 20 00 8. A 3 year old bull, Nov. 10, 1859, worth........... 18 00 9. 3 killed-a 3 year old heifer, Nov. 15, 1859, worth. 18 00 Another, worth........... 18 90 The 3d one of this lot, 2 years old, worth 10 00 10. A cow, Nov. 24, 1859, worth........ 11. A cow, Dec. 22, 1859, worth..... 12. A cow, damaged...... 13. A heifer, January, 1860, worth........ 30 00 27 00 15 00 9.00 $343 00 The original statute making railroad companies liable for stock killed or injured upon the road where it was not fenced, limited the remedy to suits before justices of the peace. The amendment of this statute (acts 1859, p. 105,) gives jurisdiction to the Circuit Court or Court of Common Pleas of the proper county, where the value of the animal or animals killed shall exceed 50 dollars. This amendment has been decided to be prospective only, not embracing animals killed before the taking effect thereof. Indianapolis, &c., R. R. Co. v. Kercheval, 16 Ind. 84. We are of opinion that the Circuit Court had not jurisdiction of any one of the thirteen different items set forth. The first and second arose before the amendment of 1859 took effect, and are not embraced in it. The other items are all under 50 dollars, and hence jurisdiction thereof was not given the Circuit Court or Common Pleas by the amendment. Each of the items constitutes a separate and independent cause of action, of which, by the terms of the statute providing for a recovery, a justice of the peace only has jurisdiction. The Rush's Adm'r v. The State. Circuit Court can not have jurisdiction of the items collectively if it has not separately. All the animals killed at any one time constitute a separate and indivisible cause of action, and where, in such case, their value exceeds 50 dollars, the Circuit Court or Common Pleas undoubtedly has original jurisdiction. Such is not the case here. Here none of the animals (except the oxen which were killed before the amendment took effect,) are claimed to exceed 50 dollars in value, and the three constituting the ninth item, and charged as an entire killing, amount, at the price named, to less than 50 dollars. Per Curiam.-The judgment is reversed, with costs. NOTE.-DAVISON, J., was absent when this cause was con sidered. John S. Scobey, Oscar B. Hord and Cortez Ewing, for the appellant. RUSH'S Administrator v. THE STATE. In 1853, the Commissioners of the Sinking Fund sold certain real estate to A, on credit, and took his obligation therefor, with B as surety, payable in five years, with interest, payable annually, and gave A a certificate, which recited the sales and terms thereof, and that "in case of any default of payment, aceording to the terms of purchase, then the premises shall be immediately forfeit and revert to the State, with all payments and improvements thereon, and the State shall be entitled to re-sell at any time." A took possessession, and, before maturity of his obligation to the State, sold the land in separate parcels to different persons, and received in full the consideration therefor, and gave them respectively his bond for title at a future time. A, and B, his surety, failed to pay the State Rush's Adm'r v. The State. for the land, and the State, having tendered a deed to A, sued A and B, on their obligation for the purchase-money, making A's grantees parties. Held, 1. That they were proper, if not necessary, parties, for the purpose of adjusting the equities between them and the surety of A. 2. That, in the absence of other intervening equities, B, as A's surety, upon payment of the money, would be entitled to be subrogated to the rights of the State in respect to the land. 3. But, under the circumstances of this case, the equities in favor of A's grantees, who have once paid for said land, are superior to those of B, as such surety. 4. That it was optional with the State, either to enforce the contract with A, by complying with its terms on her part, and collecting the purchase-money, or to avoid the contract in, consequence of the breach thereof by A, and to re-sell the land. APPEAL from the Rush Circuit Court. WORDEN, J.-In December, 1853, at a public sale of lands, which had been mortgaged to the State, to secure loans made by the Sinking Fund, Harvey D. Rush purchased, on credit, 320 acres, for the sum of 734 dollars and 27 cents, and, to secure the purchase-money, executed, with Greenberry B. Rush as his surety, the following bond, viz: "Know all men by these presents, that we, Harvey D. Rush, and G. B. Rush, are held and firmly bound unto the State of Indiana, in the penal sum of 1468 dollars and 54 cents, for the payment whereof we bind ourselves, our heirs, executors and administrators, sealed with our seals, and dated this 10th day of December, 1853. "Whereas, the said Harvey D. Rush has purchased from the said State, through her Commissioners of the Sinking Fund, at the sum of 734 dollars and 27 cents, the following pieces, parcels, or lots of land, lying and situated in the county of Owen, and State of Indiana, to-wit: (here follows VOL. XX.-28 |