the restraint would clearly have been imposed alone upon May Term, future legislative action; but, in our Constitution, the restraint 1861.

Co.

is plainly imposed upon the creation, the organization, of the INDIANAPOLIS corporation itself. See The State v. Roosa, 11 O. St. R. 16. &c. RAILROAD Per Curiam.-The judgment is reversed, with costs. Cause remanded for further proceedings in accordance with this opinion.

C. B. Smith, J. W. Gordon and Watt J. Smith, for the appellant.

R. Crawford, for the appellees.

(1.) Mr. Crawford, for appellees, cited the following authorities: Repeals by implication are not favored. Trustees v. Birkenhead Dock Co., 23 E. L. & E. R. 392; Kane v. The People, 8 Wend. 204; Marlot v. Lawrence, 1 Blatch. 608; Dugan v. Gittings, 3 Gill. 138; George v. Skeates, 19 Ala. 738; Raudebaugh v. Shelley, 6 Ohio St. R. 307; Lichtenstein v. State, 5 Ind. 162. The question does not depend on principle. It has been decided in this State, and similar questions in other States. State v. Barbee, 3 Ind. 258; Hand v. Taylor, 4 id. 410; State v. Dudley, 1 Ohio St. R. 437; Cass v. Dillon, 2 id. 608; Citizens' Bank v. Wright, 6 id. 318; State v. Trustees, 8 id. 394; 3 Gray, 601; Broadbent v. State, 7 Md. 416.

V.

MOORE.

THE INDIANAPOLIS AND CINCINNATI RAILROAD COMPANY v.

MOORE.

Suit for the value of animals killed by the cars of the railroad company.
The evidence showed that the animals were killed between two named
geographical points, and upon some railroad, by the rolling stock thereof,
but did not show, in terms, that they were killed in Shelby county, nor
by the railroad company defendant.

Held, that as the Court below knew judicially the boundaries of the county,
it will be presumed that the first point was correctly determined.
Held, also, that as the evidence tends to support the finding in relation to
the killing by the cars of defendant, the judgment will not be reversed.

Monday,

APPEAL from the Shelby Common Pleas. WORDEN, J.-Suit by Moore against the company to May 27, recover damages for killing animals on the road, the same

May Term, not being fenced. Demurrer to the complaint overruled, 1861. and exception taken. Issue, trial, finding and judgment for INDIANAPOLIS the plaintiff'; a new trial being denied.

&C. RAILROAD

Co.

V.

MOORE.

The objection to the complaint is that "it does not aver that the defendant had a railroad running through Shelby county, nor that the stock was killed by being run upon, or over, by any locomotive, car, or train of cars." The complaint charges that "the defendants, while running their locomotive and cars on, over, and along their said railroad, on, &c., in the county and State aforesaid, the said road not being then and there fenced, ran upon and over, and thereby killed and destroyed "certain animals belonging to the plaintiff, to wit," &c. We think the objections to the complaint were not well taken. The implication is clear that the defendant had a railroad running through, or at least in, the county, and that the animals mentioned were killed and destroyed by being run upon and over by the "locomotive and train of cars" mentioned.

Two objections are made to the sufficiency of the evidence. The first is that it does not appear that the animals were killed in the county of Shelby, where the suit was commenced. The testimony shows the animals to have been killed between Shelbyville and London, one and a quarter miles from London; or rather, in the language of the witness, as shown by the bill of exceptions, testifying at Shelbyville: "it was one and a quarter miles this side of London." The Court trying the cause knew judicially the boundaries of the county, and no doubt determined correctly that the point designated was within the county of Shelby.

The other objection is that the evidence does not show that the injury was done by the cars of the defendant; that the evidence would apply with equal force to every other railroad in the country. The evidence shows clearly enough that the animals were killed upon some railroad, by the cars or rolling machinery, but the witnesses do not name the particular road, or say it was the road of the defendant. We can not reverse the judgment on this alleged defect in the evidence, as it tends, to say the least of it, to support the finding.

Per Curiam. The judgment is affirmed, with costs, and 5 May Term,

per cent. damages.

J. S. Scobey, for the appellant.

J. B. McFadden, for the appellee.

1861.

SMART

V.

MCKAY.

SMART v. MCKAY and Another.

An action of foreclosure will lie upon a mortgage for interest due upon the notes secured thereby, though no part of the principal is due.

Monday,

APPEAL from the Jefferson Common Pleas. Per Curiam.-Suit to foreclose a mortgage, on default of May 27. payment of interest. Demurrer to the complaint overruled. Judgment of foreclosure. One year's interest, but no principal was due. The mortgage states that it is given "to secure the payment, when they severally become due, of seven promissory notes executed by said Alfred Smart, and payable to the order of said Matilda Smart, each for the sum of $100, and interest payable annually, and bearing even date herewith; the first payable in two years," &c.

The code provides, 2 R. S., § 637, p. 176, that "whenever a complaint is filed for the foreclosure of a mortgage, upon which there shall be due any interest, or installment of the principal," &c. This recognizes the right to foreclose for interest, and we think, on failure to pay interest due, as in this mortgage, a default has occurred. See Hunt v. Harding, 11 Ind. 245.

The judgment is affirmed, with 1 per cent. damages and

costs.

Jno. A. Hendricks and J. R. Cravens, for the appellant.

J. Y. Allison and II. W. Harrington, for the appellees.

THE STATE, on the relation of BROWN, Prosecuting Attorney, &c. v. BAILEY and Others.

Whenever the acts, or any portion of them, of a session of the Legislature are distributed in a bound volume, in a manner and shape not substantially contrary to the statute on that subject, by the Secretary of State, through his agents appointed for that purpose, in all the counties of the State, they are distributed, or published, by authority.

The fact that directory provisions, as to the form of binding, character or
color of materials, division into volumes, &c., may not be strictly followed
by the Secretary of State, does not render the distribution of such as are
prepared and distributed by him, any the less a publication by authority.
The question when a statute went into force, or whether it is at any given
time a law or not, is a question for the judicial knowledge of the Courts.
The State Constitution recognizes a “joint resolution" as a means of ex-
pressing the legislative will, and by which some acts may be authorita-
tively performed by the Legislature.

As the Legislature is, by the Constitution, made the judge of the proper
discharge by the Secretary of State of his official duties, when determin-
ing whether he shall be removed for a negligent discharge of those duties,
so, by implication, that body has the power to direct him as to a proper
discharge of those duties; and this may be done by joint resolution.
As the Secretary of State was directed by a joint resolution of the Legis-
lature, of June 9, 1852, (Acts 1852, p. 178,) to publish the General Rail-
road Law, with four other laws, as soon as convenient, it will be pre-
sumed that he acted in accordance with this instruction; and as, by
reasonable diligence, the Secretary could have caused their legal distri-
bution before February 25, 1853, it will be presumed the acts mentioned
were in force before that time.

Present insolvency, alone, is not sufficient to support an information in the
nature of a quo warranto against a corporation,

It is not necessary that relief should be prayed at the close of each para-
graph of an information, but the prayer at the close of the information
will be taken distributively and applied severally to the paragraphs.
The directors of the corporation, alone, are authorized to receive real estate,
and hence it would seem that real estate subscriptions can not be taken
upon the preliminary articles of association; but, perhaps, the board after
it is constituted, may receive real estate in payment of such prelimi-
nary subscriptions.

Corporations can only consolidate with the consent of the Legislature, and
when a consolidation is thus effected it amounts to a surrender of the
old charters, and the formation of a new corporation out of such portions
of the old as enter into the new.

Those stockholders in the old who do not enter the new, are entitled to withdraw their shares, and may enjoin till they are secured.

APPEAL from the Randolph Circuit Court.

May Term, 1861.

THE STATE

V.

BAILEY.

PERKINS, J.-Information in the Randolph Circuit Court, in the nature of a quo warranto, filed by the prosecuting attorney, in the name of the State, against certain persons who, it is alleged, are claiming to be a railroad corporation, and assuming to act as such, without being organized accord- Monday, May 27. ing to law.

The information is composed of four paragraphs:

The first charges that the defendants pretended to organize as a corporation, on February 25, 1853, and are assuming to act under the organization then made; while, at that time, there was no law in force, nor was there till May 6, then next following, permitting such organization as that made. The second and third paragraphs charge the filing in the office of the Secretary of State, of false and fraudulent articles of association, whereby the corporation was claimed to be organized. The fourth charges present insolvency of the corporaA demurrer was sustained below to all the paragraphs of the information.

tion.

The paragraphs must be examined separately. We commence with the first: It charges, that the organization of the corporation was perfected prior to the taking effect of the law authorizing it.

Waiving the question, whether, if the fact be as alleged, that organization was not a continuous one, which the law operated upon, and made good when it came into force, the members of the organization not withdrawing nor dissenting, we proceed to inquire when the general railroad law of 1852 took effect.

The new Constitution, under which that law was enacted, provides that laws, except in cases of emergency, shall take effect from the time when they are distributed, by authority, in all the counties of the State. Jones v. Cavins, 4 Ind. 305. It seems to be necessary here, then, to ascertain the person or persons who had authority to distribute the statutes enacted by the Legislature. This is not a thing of difficulty. The code of 1843, and that of 1852, alike provide, that the distribution shall be made by the Secretary of State. R. S. 1843, p. 158; 1 R. S. 1852, p. 436.