money only, the order and direction that payment be made from the assets of the ward's estate is a mere incident. Jurisdiction exclusive in the appellate court; Baker v. Grover, 126-594.

Application for relief from a judgment by default rendered in an action on a promissory note; judgment less than $1,000. An application for relief under section 396 is a mere incident of the main action looking to the ultimate determination of the rights of the parties. Jurisdiction in the appellate court; Parker v. Ind'plis N. Bk., 126-596.

Action by a municipal corporation to recover a penalty for the violation of a city ordinance, where the validity of the ordinance is not involved. An action for the recovery of money and a civil action. Jurisdiction in the appellate court. This is not changed by the fact that one of the judges of the appellate court was of counsel in the case that circumstance does not oust the court of jurisdiction. It would be otherwise if the validity of the ordinance were properly challenged, municipal ordinances being in effect local statutes (Pennsyl. Co. v. Stegemeier, 118-305; Cit. G. etc. Co. v. Elwood, 114-332); Hammond v. N. Y. C. & St. L. Ry. Co., 126–597.

ARTICLE 3-THE SUPERIOR COURT.

1364. Judge pro tempore. When the regular judge yields the bench, calls in a special judge and duly appoints him to try a designated cause, such special judge acquires full authority over the particular cause through all its stages, and the authority of the regular judge is necessarily excluded. The regular judge can in no wise rightfully control or interfere with the proceedings of the special judge — the latter is the sole and exclusive judge in the cause. If after a special judge has been appointed to try a case, the regular judge adjourns the term until the time fixed by law for holding the next regular term, the special judge has authority to proceed with the trial of the cause before him, after the order of adjournment made by the regular judge. Under section 170 of the constitution the legislature is empowered to provide for the appointment of special judges and to make provision for investing such judges pro temp. with the authority of regularly chosen judges in the cases enumerated; Perkins v. Hayward, 124-447.

A person who acts as judge pro tempore in a particular case has not the authority of the regular judge and, therefore, has no appointing power. The extent of his authority is to hear and determine the case which he was appointed to try; he can not appoint, another person to act as judge. When a judge pro tem. declines to act because of objection raised as to his competency, and thus lays aside the power conferred on him by the duly elected judge, the power to appoint revests in the latter and can not be rightfully exercised by the appointee; Cargar v. Fee, 119-537.

One who desires to assail the authority, or the regularity of the appointment of a special judge, who was competent and might properly have been appointed, must do so in the original proceeding. After judgment has been rendered, unless the record affirmatively discloses the want of authority of the presiding judge, his appointment can not be successfully assailed. Therefore a party can not have the collection of a judgment enjoined, as being void, by alleging matters dehors the record, showing that the special judge who presided at the trial of the cause was not regularly appointed. It is only where the record affirmatively shows the presiding judge's want of authority that a collateral attack will lie; Littleton v. Smith, 119230.

When an objection to the appointment of some person to act as special judge, or the authority of a de facto judge, acting under color of a temporary appointment, to appoint a judge pro tempore is promptly made, the question of the validity of the appointment is presented; Cargar v. Fee, 119-537.

Where the appointment of an attorney as special judge is not in writing an objection to his competency must be sustained, if at once and at the earliest opportunity made; nevertheless an oral appointment is not absolutely void; an objection to the method of appointment may be waived and will be deemed waived unless seasonably made (Schlungger v. State, 113-296); Greenwood v. State, 116–485.

A case having been tried by a special judge and no objection made to his acting as judge at any stage of the proceeding, the rule applies that an appointment of a judge pro tempore, although not regularly made, constitutes the appointee a judge de facto, whose acts can not be overthrown in a collateral attack; nor in a direct assault, objec

tion not naving been promptly made. An objection to such appointment can not be considered if for the first time made in the supreme court; Bowen v. Swander, 121165.

Where no objection is made to the special judge, or judge pro tem., and no question is made in the trial court as to the regularity of his appointment, the record on appeal need not show the manner of his appointment. The record, therefore, being silent in such case, the supreme court will assume that the appointment was properly and legally made; provided a statute is in force under which the appointment might be made. Furthermore, the record on appeal being silent on the subject a party can not make the objection on appeal, for the first time, that the appointment of the special judge or judge pro tem, was not properly made; Barsley v. Phillips, 114-191; Schlungger v. State, 113–296; Powell v. Powell, 104-29; Rogers v. Beauchamp, 10233; Kenney v. Phillips, 91-511; Board v. Seaton, 90-158; State v. Murdock, 86-124; Zonker v. Cowan, 84-395; Kennedy v. State, 53-542; Winterrowd v. Messick, 37122; Watts v. State, 33-237; Feaster v. Woodfill, 23-493, overruling Board etc. v. Coats, 17-150.

6710, Actions against state authorized. The act of the legislature, approved March 9, 1889, authorizes any person or persons having, or claiming to have, a money demand against the state, arising at law or in equity, express or implied, accruing within fifteen years from the time of the commencement of the action, to bring suit against the state therefor, in the superior court of Marion county. Where, however, the legislature has adjusted the matter and allowed what it deemed proper in the case, it has withdrawn from the court any jurisdiction to adjudicate on the question; Julian v. State, 122–71.

1395. Juror who has served within one year- Peremptory challenge. Where a juror is called, by the sheriff, as a talesman and he has served on the jury in the same court as a talesman in another cause some days previous and at the same term of court, a challenge as to him is properly sustained; Goshen v. England, 119–370. 1409. Compensation of stenographer. Section 260 provides for the assignment of an attorney by the nisi prius courts, to prosecute or defend actions for poor persons. While it is found in the Civil Code and relates particularly to civil actions, it has been held to apply, also, in criminal prosecutions. It has, also, been held that when an appointment is made in the trial court, unless revoked, it extends to all subsequent proceedings, including an appeal to the supreme court (Stout v. State, 90-1). Nevertheless, a defendant who is prosecuted criminally, having shown that he is without means to employ counsel and make defense, and having had counsel assigned to him, who has made defense for him on his trial, can not, as a matter of right, require a circuit court to make an order requiring the stenographer to transcribe his report of the evidence and providing for the payment of the cost thereof from the county treasury, in order that he may prosecute an appeal to the supreme court. It is probable, however, that the court, in the exercise of its discretion, may make an allowance for the preparation of a transcript of the evidence etc.; Ex p. Morgan, 122-429.

1410. Reports, how used on appeal. Under this section to make a long hand transcript or manuscript of the short hand writer's report of testimony taken on the trial of a cause a part of the record it must be incorporated, bodily, into a bill of exceptions; Patterson v. Churchman, 122-380; Doyal v. Landes, 119-479; Butler v. Roberts, 118-481. The clerk of the circuit court can certify such long hand manuscript of the evidence to the supreme court, under the provisions of this section, when the same has been incorporated in a bill of exceptions and in no other case; O. & M. Ry. Co. v. Voight, 122-292; Patterson v. Churchman, 122–380.

Unless the original long hand transcript of the stenographer's report of evidence adduced at the trial is embodied in a bill of exceptions before the bill is signed by the trial judge, as required by this statute, it is not regarded as a part of the record on appeal; Fiscus v. Turner, 125-48; Clark v. State, ex rel., 125-8; Ohio etc. Ry. Co. v. Voight, 122-288; Patterson v. Churchman, 122-379; Harrell v. Seal, 121–193; Doyal v. Landes, 119-479.

1417. Allowances in state prosecutions. This section authorizes courts to make allowances for necessary expenditures incurred, under their order, to women, children

or aged, infirm or poor persons summoned as witnesses in state prosecutions. The section is none the less applicable to witnesses summoned to appear before a grand jury than before the court; Baldwin v. State, 126–29.

1431. Jurisdiction limited. The jurisdiction of a justice of the peace in civil actions is a limited jurisdiction. The requirements of the statutes, in all jurisdictional matters, must be substantially complied with by the justice, or his judgments will be void; Penrose v. M'Kinzie, 116-39.

1433. Amount of jurisdiction. An action is commenced before a justice of the peace and judgment is rendered, for the plaintiff, for $124.03. Defendant appeals to the circuit court. Before the justice an answer setting up a set off was pleaded, but no affirmative reply was thereto filed. The case being in the circuit court, plaintiff filed a reply to the plea of set off theretofore pleaded, and claimed judgment for $65 in addition to the amount claimed in the original complaint. Verdict in the circuit court returned in favor of plaintiff for $240, on which he entered remittitur for $60 and took judgment for $180. The entire amount claimed would not have been in excess of $200 at the time the action was commenced, so it must be true that the increased amount allowed was for interest or attorney's fees occasioned by the appeal, and the action was properly brought before the justice; Stair v. Bishop, 121-274.

1441. Jurisdiction of person. A proceeding in bastardy, although to all intents and purposes a civil action, is nevertheless commenced by making a written complaint under oath and by the issuance of a warrant commanding the arrest of the defendant and that he be brought before the justice to answer ($ 978). The warrant corresponds with the capias ad respondendum of the common law, and any civil proceeding in which the original process provided by statute is a writ or warrant commanding the arrest of the defendant that he may be brought before the court to answer a demand made against him, is a suit commenced by capias ad respondendum, and such process issued by a justice runs anywhere within the county. A justice's jurisdiction, then, in cases of bastardy is co-extensive with the county in which he resides; Morris v. State, ex rel., 115-283.

1450. Suits, how instituted. In an action before a justice of the peace, the defendant resided in another state, and in that state indorsed upon a summons — which was not issued by or directed to any officer, but delivered to the plaintiff's attorney by the justice - his acknowledgment of service and a waiver of jurisdiction. The summons, so indorsed, was returned by the plaintiff's attorney, whereupon a judgment was rendered against the defendant by default. Judgment void, absolutely; Penrose v. M'Kinzie, 116-38.

1461. Complaint. It has been uniformly held, by the supreme court, that, in civil suits originating before a justice of the peace, the plaintiff's complaint will be sufficient, under the Civil Code, even on demurrer for the alleged want of facts, if it will inform the defendant of the nature of the plaintiff's cause of action and be so explicit that a judgment thereon may be used as a bar to another suit for the same cause of action; Anderson v. Lipe, 114-466.

1489. Judgment - Entry - Signing. The entry of a judgment rendered by a justice of the peace on his docket by the justice is not a judicial but a mere ministerial act which the justice may perform at any time. The oral judgment which the justice announces is in the exercise of judicial power. The entry thereof on his docket constitutes mere evidence of his judicial action; Cottrell v. Cottrell, 126-182. 1497. Satisfaction of judgment. A complaint, under this section, to obtain the satisfaction of a judgment, alleged that the judgment creditor had accepted personal property for the amount of the judgment but refused to cancel it. An answer alleged that in a prior action between the same parties it was adjudged that such personal property was, at the time it was taken, the property of the judgment creditor by virtue of a chattel mortgage executed by the judgment debtor. The reply admitted the judgment, but alleged that such judgment was rendered on the agreement that, in consideration of the judgment and the surrender of the mortgaged property, the judgment should be satisfied and cancelled. Such reply is no departure and is sufficient; Palmer v. Hayes, 112-291.

P

The six years' statute of limitations is no defense to an action to obtain the satisfaction of the record of a judgment alleged to have been satisfied; Palmer v. Hayes, 112-290.

1500. Appeal bond. This section, as to a bond on appeal from a justice's judgment, provides for a bond in a fixed sum, and there is nothing in sections 5234 and 5236, providing for appeals in actions for forcible entry and detainer, and against tenants holding over, which is directly or by implication in the way of an appeal bond in a fixed and definite penalty. Construing the three sections together, it seems to be proper that in such cases the bond should be in such definite sum and with such sureties as the justice may approve. This being so, it follows that where on an appeal by defendant from a justice's judgment for the possession of real estate and damages for its detention, the appeal bond is executed with a fixed penalty, the sureties on such bond are not liable beyond the sum stated, whatever may be the amount of the judgment rendered against the defendant in the appellate court; Graeter v. De Wolf, 112-5.

1505. Costs. Judgment before a justice of the peace for $70, and in the circuit court, on appeal, for $22.72, a reduction caused by a tender of $50 made by defendant. The tender was ineffective, as it was made in full of the demand, and was less than was due and the judgment was informal, the verdict showing specially the tender and the balance due. No reduction of the justice's judgment, and defendant not entitled to costs; Taggart v. Ratts, 117–138.

1529. Claim to property- Verified complaint. In an action under this section to try the right of property seized by virtue of a writ of attachment, it is sufficient that the complaint alleges that the plaintiff is the owner of the property seized; this states an absolute claim thereto. In such a case it may be shown, by evidence, that a person through whom a party to the action claims title had possession and control of the personal property in controversy. The act of possession having been proved, it is competent to prove the declarations of such person while in possession, indicating the character of the possession, whether made in the presence of the adverse party or not; Maus v. Rome, 123-524; see Durham v. Shannon, 116–403.

1547. Replevin - Complaint. Under this section, a complaint need not be verified by the plaintiff in person; it may be verified by his attorney, as his agent; Hall v. Durham, 117-430.

1549. Proceedings on return of "not found." This section relates to property which the return of the constable shows can not be found. The jurisdiction of justices of the peace in cases of replevin is special and statutory, and it is acquired in the manner pointed out by the statute. This jurisdiction under this section is limited to an inquiry as to the ownership and right of possession of property seized under and by virtue of the writ and to property which the officer returns as "not found;" hence the plaint being as to five hogs and the constable's return showing a levy on four hogs, with no return non inventus as to the fifth, the evidence must be confined to the four levied on; Burket v. Pheister, 114-504.

1550. Trial --Judgment. In an action of replevin, appealed to a circuit court from a justice of the peace, the jury, by its verdict, found for the defendant, and that he was entitled to a return of the property taken under the writ. In such case it is not essential that the verdict shall conform to the requirements of section 549, and that the jury shall assess the value of the property or the damages for the taking or detention thereof. The cause originated before a justice, and the verdict conforms to the provision of this section; Burket v. Pheister, 114-505.

AN ACT to amend section two hundred and thirteen, being section one thousand seven hundred and eighty-eight of the Revised Statutes of 1881, and two hundred and fifteen, being section one thousand seven hundred and eighty-nine of the Revised Statutes of 1881, and repeal section one hundred and sixty, being section one thousand seven hundred and thirty-four of the Revised Statutes of 1881, of an act entitled "An act concerning proceedings in criminal cases," approved April 19, 1881. [Approved and in force March 6, 1889; S., 1889, p. 260.

6721. [1788] Accessory before the fact. SEC. 1. Be it enacted by the General Assembly of the State of Indiana, That section two hundred and thirteen of the above entitled act, being section one thousand seven hundred and eighty-eight of the Revised Statutes of 1881, be amended to read as follows: Section 213. Every person who shall aid or abet in the commission of a felony, or who shall counsel, encourage, hire or command, or otherwise procure a felony to be committed, may be charged by indictment, or affidavit and information, tried and convicted in the same manner as if he were a principal, either before or after the principal offender is charged, indicted or convicted, and upon such conviction he shall suffer the same punishment and penalties as are prescribed by law for the punishment of the principal.

6722. [1789] Accessory after the fact. § 2. That section two hundred and fifteen of the above entitled act, being section seventeen hundred and eighty-nine of the Revised Statutes of 1881, be amended to read as follows: Section 215. Every person not standing in the relation of husband and wife, parent or grandparent, child or grandchild, mother or sister, by consanguinity or affinity, or master or apprentice, to any person guilty of any felony, who shall, after the commission of such crime, harbor, conceal or assist any such offender with intent that he shall escape from detection, arrest, capture or punishment, shall be deemed an accessory after the fact, and may be charged, indicted, tried and convicted and punished, though the principal be neither charged, indicted, tried or convicted, and upon such conviction he shall suffer the same punishment and penalties as are prescribed by law for the punishment of the principal.

6723. [1734] Form of indictment as to accessories. § 3. That section one hundred and sixty of the above entitled act, being section one thousand seven hundred and thirty-four of the Revised Statutes of 1881, be and the same is hereby repealed.

6724. Emergency. § 4. Whereas, an emergency exists for the immediate taking effect of this act, therefore, the same shall be in force and take effect from and after its passage.