294 abandonment of the right of the Columbus and Shelby Railroad Company to maintain a track through the streets of Columbus. City of Columbus et al. v. The Columbus & Shelby R. R. Co....... 6. Injury to Animals.-Fencing Instruction. An instruction that when the owner of cattle turns them out, at a place where they must pass along a railway track, when trains are passing, he cannot recover for their injury, is erroneous as applied to a case where the road should be securely fenced and is not so fenced. The J., M., & I. R. R. Co. v. Ross. 545 REAL ESTATE, RECOVERY OF. See HUSBAND AND WIFE, 10. 1. Pleading.-A complaint is sufficient in an action for the recovery of real estate, if it contain the substance required by the statute. Knight et al. v. McDonald et al............463 2. Same.-Defective Description. Where the complaint in an action to recover the possession of real estate described the land as "six - of lot number five," etc., and the finding was "six acres of lot number five,' etc.; Held, that the finding did not cure the defect in the description of the premises in the complaint. Unversaw v. Myers................. .487 REDEMPTION. See SCHOOLS, I. REPLEVIN. Title to Property.-Suit on Bond.Where property has been replevied from under a levy by virtue of an execution, and on the trial there has been a finding for the defendant on the issue of title to the property, and a judgment of return has been rendered, the plaintiff cannot afterward defend a suit on the bond, for a failure to deliver the property, by asserting a new title to the property, acquired after the bond in replevin was given and before judgment for a return. Carr v. Ellis et al.....465 RES ADJUDICATA. 1. Pleading.-A plea of former adjudication, showing that the questions, things, rights, and matters in suit have been adjudged and tried before and by a tribunal of competent jurisdiction, is good on demurrer. The State, ex rel. Combs, v. Hudson...198 2. Same. In a suit upon a recognizance taken before a justice of the 1. peace on a charge for the commission of a felony, the record must show that the forfeited recognizance, with the justice's certificate indorsed thereon, was filed with the clerk of the circuit court................ RECORD. .Ibid. See PRACTICE, 12, 17; RECOGNIZANCE, 2. Same.—Jurisdiction of the Person. Where the record upon which a plea of former adjudication is based, showing judgment against the defendant by default, only shows service of process on him by recitals in the record, without containing a copy of the notice and return of service, it may be shown that no jurisdiction of the person of the defendant was acquired by proper service....... Ibid. S SCHOOLS. See COUNTY AUDITOR, 2. School Fund.-Mortgage-Title. Redemption.-A purchaser under a sale by virtue of a mortgage to the school fund takes an absolute title, and there is no right of redemption by junior incumbrancers. Schnant: v. Schellhaus, Adm'x...............$5 2. School Property.-Part of School Township and School Property Annexed to City-Title to Property.Where real estate is purchased and buildings erected for school purposes, by the trustees of a school township,] with the proceeds of a special school tax, and subsequently the territory embracing such property is annexed to a city, leaving more than half the school township outside the city limits, the title to the school lots and buildings still remains in the trustees of the school township, and the property may be sold by them. Heizer v. Yohn et al................415 SET-OFF. See CONTRACT, 5; EVIDENCE, 10. SHERIFF. See ESCAPE, I, 2; FEES AND SALARIES, 2. I. 2. SINKING FUND. Constitution.- Construction.-The word "invest," as used in section 4 of article 8 of the constitution, in order to harmonize with section 6 of the same article, must be construed as broad enough to cover loans made by the counties, and that the fund may be intrusted to them for that purpose; and yet, while covering the loan of money, it does not restrict to that mode of investment. Shoemaker, Aud., et al. v. Smith et al. ......122 Statute.- Constitutionality.- The amendatory act of February 24th, 1871, in regard to the sinking fund, is not in conflict with section 4 of article 8 of the constitution....... Ibid. 3. Recital.-Certainty.-The act of 1871 is sufficiently certain in its recital of the act amended; and the date of the approval of that act is not necessary to be stated in the act amending it; and the court will take judicial notice that there is no other act with the title which is recited. Ibid. 6. the terms, "board of commissioners of the sinking fund," and "board of sinking fund commissioners," in the act, does not vitiate the statute, as it is plain what party was intended.... ......Ibid. Sixth Section.-Fourth Section.The original sixth section of the act amended, and the entire amendment of 1871, are valid, with the excep tion of the fourth section of the amendment, on which no conclusion was reached, as it was not involved in the decision....... .........Ibid. SLANDER. 1. Charge of Forgery-Attempt to Obtain Money by False Pretences.The plaintiff, having executed a note to the defendant, November 30th, 1864, and paid one year's interest, after a year had passed executed a mortgage to secure the payment of the note, and some four years later, on discharging the note and mortgage, which were surrendered to the plaintiff, the interest from the date of the note was, by mistake, included, and no credit given for the one year's interest paid. The plaintiff called the attention of the defendant to the mistake afterward, and pointed out the words in the mortgage referring to the note, Interest paid to Nov. 30th, 1865." The plaintiff filed a complaint, which, after reciting these facts, and averring that the purpose of defendant was to cause it to be believed, and that the hearers so understood, that the plaintiff had been and was guilty of forgery, and of making use of false pretence, to obtain money, charged, with proper innuendo, that defendant had uttered and published of him the following false and slanderous words: "You forged it; inserted it; put it in. You wrote that clause in it. I would swear that that line in the mortgage was not in the mortgage when I gave it to you yesterday, and you put it in. You altered the mortgage, changed the mortgage, put that line in the mortgage, inserted that line, put the credit in, and you are a forger and committed forgery;" and also: "He committed forgery; is a forger; is guilty of forgery. There is something here that I don't understand; this line has been put here; or at I Held, that the entry charged, on the 2. Same. A second paragraph charg- Ibid. SPECIFIC PERFORMANCES. Pleading.-Performance by Plaintiff. dates, pay defendant any money that STARE DECISIS. Rule of Construction.-A long line of I. STATUTE OF FRAUDS. Parol Promise to Answer for Di't Held, that the contract was within the 2. I. 2. 3. - 7. plied in the Supreme Court by affida- Practice. Appeal. — Evidence.- Bill of Exceptions.-Where there Assignment of Error.-The as- et al........ 5. Notice to Co-Parties.-Where all 2. 3. T TAX. See COUNTY AUDITOR. Lien. Levy of Execution.- urer. Municipal Purposes.· County Treasurer. - Delinquent TOWN. Trustees of Towns.- Election.—In- of a certain turnpike road, for bene- U UNSOUND MIND. See DRUNKENNESS, 1, 2; PRACTICE, 8; V VENDOR AND PURCHASER. See CONVEYANCE, 1, 2; MISTAKE; 1. Covenant.-Evidence.-In an ac- on land within one and one-half miles Assignment of Account.- In a mere |