that record stood, that the judgment had not been paid. The appellants were asking, in so far as any claim owing by the garnishee to the attachment defendant was concerned, that they be placed in the attachment defendant's place. Whether a valid claim existed, or whether it had been compromised and settled, and whether the acts done by the parties amounted to a settlement, could be determined only by the proof. When it is said that a judgment has been entered satisfied in the proper court, the presumption is that it was fully paid, and that presumption must control until the satisfaction is properly set aside. This being a special proceeding, and largely controlled by statute, it would seem that under sections 834, 953, Rev. St. 1894 (sections 822, 941, Rev. St. 1881), the special answers filed were unnecessary. But, if they were necessary, they amount to a denial of the matter set out in the affidavits for garnishment, and are good against a demurrer. See Corbin v. Goddard, 94 Ind. 419. The statute gave appellants the right to require the garnishees to make disclosures of any indebtedness owing by the garnishees to the attachment defendant, and it appears an order was made requiring the garnishees to appear on a day named to be questioned as to that matter, but it does not appear that the appellants availed themselves of the order, and no inquiry was made of the garnishees until the trial. The case of Hogan v. Burns (Cal.) 33 Pac. 631, cited by appellants' counsel, was a suit on certain promissory notes, and among the answers filed was one in which the defendant denied that the notes had not been paid, but alleged that they had been "satisfied and discharged." An account, orders, and acceptance were offered in evidence, and excluded. The court held that, while an accord and satisfaction had not been pleaded, yet, conceding that they were, it was not error to exclude the account, order, and acceptance from the evidence, in the absence of any offer to show by other evidence that they were intended or accepted as satisfaction of either of the notes, or that either the account or order had been paid. But in the case at bar the appellants can have no greater rights than the attachment defendant, and, in a suit by her on the judgment, an answer that the judgment had been compromised and settled, and had been entered satisfied in the proper court, would be good.

The record affirmatively shows that the court had jurisdiction of the person of the appellee Consedine. After she was defaulted, she appeared in person, and appellants filed their consent in writing that the default might be set aside, and that she might be permitted to file an answer; and at that time she asked that the default be set aside, and that she be permitted to file her answer, which the record shows was the general denial. It is argued that the court erred in re

fusing to set aside the default, and permit the filing of the answer. It is true, the garnishee defendants had the right to require the appellants to show that the court had jurisdiction of the person of the attachment defendant. The record shows that the court had such jurisdiction. We are not informed how the rights of the appellants were prejudiced by this ruling.

The remaining error discussed by counsel is overruling appellants' motion for a new trial. The grounds upon which a new trial were asked were that the finding and judgment of the court as to the garnishee are contrary to the law and the evidence, and that the court erred in the admission of certain evidence offered by appellees, and in refusing certain evidence offered by appellants. It is argued by counsel for appellees that the evidence is not in the record. It appears that the longhand manuscript of the evidence was filed in the clerk's office on the 17th day of October, 1894, and that on the same day the bill of exceptions was signed by the judge, and filed. It thus appears that the record does not show that the longhand copy of the evidence was filed in the clerk's office before the bill of exceptions containing the same was signed by the judge. The transcript contains the following entry: "And afterwards, on October 17, 1894, and within the time allowed by the court, the plaintiffs filed in the office of the clerk of this court their bill of exceptions, which bill of exceptions is in the words and figures following." This is followed by the longhand manuscript of the evidence containing the file mark of the clerk that it was filed October 17, 1894. The judge signed the bill of exceptions on the same day. There is no other evidence of the filing of the longhand manuscript except that in his certificate to the transcript the clerk says: "I also certify that on the 17th day of October, 1894, the official stenographer who took down the evidence in said cause filed in my office his longhand manuscript thereof, which is the same manuscript of the evidence incorporated in the bill of exceptions, and made a part of the foregoing transcript." From these entries it is evident that the longhand manuscript of the evidence was not filed in the clerk's office before it was incorporated in the bill of exceptions, or before the bill was filed, as required by section 1476, Rev. St. 1894 (section 1410, Rev. St. 1881); Joseph v. Wild (Ind. Sup.) 45 N. E. 467; Carlson v. State (Ind. Sup.) 44 N. E. 660; Rogers v. Eich (Ind. Sup.) 45 N. E. 93; Manley v. Felty, Id. 74; De Hart v. Board, 143 Ind. 363, 41 N. E. 825; Hamrick v. Loring (Ind. Sup.) 45 N. E. 107; Beatty v. Miller (Ind. Sup.) 44 N. E. 8; Fitzmaurice v. Puterbaugh (Ind. App.) 45 N. E. 524. The evidence is not in the record. We find no error in the record for which the judgment should be reversed. Judgment affirmed.

(17 Ind. App. 243)

SANDERS v. HARTGE. (Appellate Court of Indiana. March 17, 1897.) CLAIMS AGAINST DECEDENTS' ESTATES-PRACTICEPLEA IN ABATEMENT-TIME OF FILING-GENERAL APPEARANCE - WAIVER - PLEADING AND PROOF,

1. Under Rev. St. 1894, §§ 2473, 2474 (Horner's St. 1896, §§ 2318, 2319), requiring the clerk, on the filing of a claim against a decedent's estate, to enter the same on the claim docket, and, if it be not admitted by the administrator, to transfer it to the issue docket for trial, it will be presumed, in the absence of a contrary showing, that a claim filed in the clerk's office, and appearing on the issue docket, reached such docket pursuant to statute.

2. A plea in abatement is properly overruled unless filed before an answer in bar, as required by the statute.

3. An administrator, by appearing and filing a demurrer to a claim, waives the objection that it was not filed, placed on the appearance docket, and transferred to the issue docket for trial, pursuant to statute.

4. One who declares on a special contract cannot recover on an implied contract.

Appeal from circuit court, Delaware county: George A. Koons, Judge.

Claim by Bertha Hartge against Millie J. Sanders, administratrix of the estate of John F. Sanders, deceased. Caleb G. Puckett, who was made a party defendant by leave of court, filed a disclaimer, and from a judgment for plaintiff the defendant administratrix appeals. Reversed.

J. N. Templer & Son and Ryan & Thompson, for appellant. Wagner & Bingham, for appellee.

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WILEY, J. The appellant was the administratrix of the estate of John F. Sanders, her deceased husband. The deceased was a lawyer, and practiced his profession at Muncie, Ind., where he died. The record recites that "on the 20th day of May, 1893, the plaintiff * filed in the clerk's office of the Delaware circuit court the following, her complaint," etc. To the original complaint the appellant addressed a demurrer, which was sustained by the court; and on December 8, 1893, the same being the third judicial day of the November term of said court, the appellee filed her amended complaint, in two paragraphs. The substance of the first paragraph is that on or about October 1, 1890, one Hannah J. Puckett placed in the hands of the decedent $739.26, to be loaned for her; that at that time the said decedent held himself out as a money lender and attorney at law, and that she specially instructed him to use great care and diligence in loaning the same, and to make the loan on good and sufficient security; that he accepted said money, and agreed and contracted with said Hannah J. Puckett to loan the same, and to use great care in making the loan, and that he would only loan it on good and sufficient surety; that he loaned said money to parties who were insolvent, and that the security taken by him was wholly insufficient and worthless, and that

by reason thereof said money was lost to the said Puckett and to the claimant; that a commission was paid said Sanders for his services in loaning said money; that the said Puckett is dead, and that appellee is her only child and heir at law; that there was no indebtedness against the estate of said Puckett; that no administration was had upon her estate; that the claimant is the owner of the claim herein; and that there are no set-offs against it. The second paragraph avers that on or about the 1st of October, 1890, Hannah J. Puckett employed John F. Sanders, an attorney at law, to prosecute for her an action upon a promissory note; that he accepted said employment; that a consideration was paid him for his services; that said note was the one described in the preceding paragraph; that judgment was procured thereon for $851.85; that said Sanders could, by using due skill and diligence, have collected said judgment, but that he failed to use due skill and diligence in ordering execution upon said judgment, by reason of which said amount was wholly lost to the said Hannah J. Puckett and this claimant. Then follow averments of the death of said Puckett, and that appellee is her only heir at law. Each of these paragraphs is verified as a claim against an estate. It is proper here, also, to state that each paragraph of the complaint charges that one Caleb G. Puckett was the surviving husband of Hannah J. Puckett, deceased; that, by virtue of an antenuptial agreement between the said Hannah and Caleb, he had no interest in her estate; and that he was made a party defendant by leave of court, to answer as to any interest he might have. Thereupon the said Caleb G. Puckett filed a disclaimer. To this amended complaint the appellant filed an answer in bar, in four paragraphs. This answer, over the appellee's objections and exception, was withdrawn by the appellant, and she filed an answer in one paragraph, which is a general denial. Upon the sworn application of the appellee, Caleb G. Puckett at this time was admitted as a party defendant, and, as above stated, filed his disclaimer, and thereupon the appellant filed her plea in abatement, the material averments of which are that the claim in controversy had never been filed against the estate of the decedent, Sanders, in the office of the clerk of the Delaware circuit court; that the same had not been entered upon the appearance and claim docket in the clerk's office; that said administratrix had not been given an opportunity to allow or reject the claim; that she has never rejected the same upon the appearance docket; and that said claim had not been verified by the claimant, or any one on her behalf, as required by statute. The appellee demurred to this plea in abatement, which the court sustained, and the appellant excepted. Trial by jury, verdict for plaintiff for $874, and with their general

verdict the jury returned answers to interrogatories submitted to them by the court. The appellant moved the court for judgment in her favor on the answers to the interrogatories, notwithstanding the general verdict, which motion was overruled. Over appellant's motion for a new trial, judgment was rendered for appellee.

Upon appeal the appellant has assigned error in this court as follows: First, that the claim or complaint does not state facts sufficient to constitute a cause of action; second, the court erred in sustaining the demurrer to appellant's plea in abatement; third, the court erred in overruling the demurrer of appellant to the amended claim or complaint; fourth, the court erred in overruling appellant's motion for judgment non obstante veredicto; fifth, the court erred in overruling appellant's motion for a new trial; sixth, the court erred in rendering final judgment against appellant on the general verdict.

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We will first consider the second assignment of error. Section 2465, Rev. St. 1894 (section 2310, Horner's St. 1896), provides that claims against an estate shall be filed in the clerk's office where the estate is pending, and prohibits actions against the administrator or executor by complaint and summons. Section 2473, Rev. St. 1894 (section 2318, Horner's St. 1896), is as follows: "Immediately upon the filing of a claim against an estate the clerk shall enter the same in the claim docket of the estate under the appropriate headings. * The filing of the claim and entry thereof upon the claim docket shall be deemed the commencement of the action upon such claim and shall be all the notice necessary to be given to the executor or administrator of the pendency of the action." By the provisions of section 2474 of the Revised Statutes of 1894 (section 2319, Horner's St. 1896) it is made the duty of the administrator, if the claim shall have been filed and placed on the appearance docket 10 days before the first day of the ensuing term thereof, to admit or refuse to admit such claim in writing on the margin of the appearance docket opposite such claim. Under the same section, if such claim is not admitted, the same shall be transferred to the issue docket, and shall stand for trial at the next term thereof as other civil actions pending therein. Appellant's plea in abatement is bottomed on the alleged fact that the claim was not filed in the clerk's office, entered on the claim docket, and passed to the issue docket, and that it was not accompanied by an affidavit, as required by statute. The position assumed by appellant upon this question is at least a novel one. In her original brief the appellant says: "This was an action commenced in the court below by the appellee, Bertha Hartge, filing a pretended verified claim against the estate of the appellant's decedent, in the clerk's office. This claim was disallowed by the appellant, and, under the practice, it was brought upon the

issue docket as a suit pending in the court below. The first thing done after the claim had laid the requisite time on the issue docket was that the appellant filed her demurrer to the claim." The record contains the following entry: "Be it remembered that heretofore, to wit, on the 20th day of May, 1893, the plaintiff * * filed in the clerk's office of the Delaware circuit court the following, her complaint," etc. At the October term, 1893, of said court, the record shows an appearance by the appellant, and a demurrer by her to the complaint. This court judicially knows that the terms of the Delaware circuit court begin on the first Mondays of January, March, June, September, and November of each year. It affirmatively appears that the appellee's claim was filed more than 10 days before the September term, 1893, of said court, at which time appellant appeared and filed her demurrer. In fact, between the filing of said claim and the beginning of the September term the June term had intervened. As the statute makes it the duty of the clerk to enter such claim on the claim docket, and, if not admitted, to transfer it to the issue docket for trial, in the absence of any showing to the contrary it must be presumed that the clerk, being a public officer, did what the law required him to do, and that the claim was rightfully transferred to the issue docket. Public officers are presumed to do their duty. State v. Wensel, 77 Ind. 428; Adams v. Davis, 109 Ind. 10, 9 N. E. 162. But aside from this presumption that the clerk did his duty, and that the claim was properly placed on the issue docket for trial, we think the facts appearing in the record estop appellant from asserting any right she may have had by reason of her plea in abatement. She appeared and demurred to the original complaint, her demurrer was sustained, an amended claim or complaint was filed, she demurred to that, and it was overruled, and appellant then answered in bar. After such answer, appellee amended her claim by making a new party, and thereupon appellant withdrew her answer in bar and filed her plea in abatement. It is a statutory rule that a plea in abatement must precede an answer in bar, and so the courts have universally held. Collins v. Nichols, 7 Ind. 447; Jones v. Foundry Co., 14 Ind. 89; Field v. Malone, 102 Ind. 251, 1 N. E. 507; Glidden v. Henry, 104 Ind. 278, 1 N. E. 369; Brink v. Reid, 122 Ind. 257, 23 N. E. 770; Watts v. Sweeney, 127 Ind. 116, 26 N. E. 680. But it matters not whether this claim reached the issue docket according to the provisions of the statute, for the appellant entered a general appearance, and thus waived any possible irregularity. In the case of Stapp v. Messeke, 94 Ind. 423, the court says: "An executor or administrator may require such claim to be brought before the court in the mode prescribed by the decedent's act, but he is not bound to do so. He may make a full appearance, and demur or answer, and the

court will have jurisdiction, and the parties will be bound by such subsequent pleadings as if they were required by law." In Frazer v. Boss, 66 Ind. 1, the supreme court, speaking by Worden, J., said: "The circuit court had jurisdiction of the subject-matter, and the executor, by appearing and filing his demurrer, * * waived the objection that the claim had not been filed and placed upon the appearance docket." Morrison v. Kramer, 58 Ind. 38, is also in harmony with the last two cases above cited. From the recital of the facts in the record, and these authorities, we are clearly of the opinion that the court did not err in overruling appellee's demurrer to the appellant's plea in abatement.

The fifth assignment of error calls in question the overruling of appellant's motion for a new trial, and our determination of the questions therein presented will render it unnecessary for us to consider the other errors assigned. In her motion for a new trial, appellant assigned 37 causes, but for the purposes of the decision of this case we only need to notice the thirty-third, thirtyfourth, thirty-fifth, and thirty-sixth causes, and they are as follows: (33) "The verdict is not sustained by sufficient evidence"; (34) "the verdict is not sustained by the evidence"; (35) "the verdict is contrary to the evidence"; (36) "the verdict is contrary to the law." These may all be considered together, for they raise the same question. The complaint proceeds upon the theory of an express contract between Hannah J. Puckett, the original payee of the note, and the appellant's decedent. The complaint alleges "that at the time the said Sanders received the said money he was specially instructed to use great care and diligence in making the loan thereof, and to make the loan thereof only upon good and sufficient security; that the said Sanders did then and there, upon receiving said money for the purpose of loaning as aforesaid, agree and contract with the said Hannah J. Puckett to make the loan thereof, and to use great care and diligence in so loaning, and to loan it only upon good and sufficient security." We have examined the record with very great care, and are unable to find any evidence to support the verdict and judgment upon the theory of the case as it comes to us, and as made by the complaint. The appellee having based her claim and tried her case upon an alleged special contract, she is bound thereby, and is not entitled to recover upon any other theory. Railroad Co. v. Renicker, 8 Ind. App. 404, 35 N. E. 1047; Boesker v. Pickett, 81 Ind. 554; Hewitt v. Powers, 84 Ind. 298; Telegraph Co. v. Reed, 96 Ind. 195; Ivens v. Railway Co., 103 Ind. 27, 2 N. E. 134; Railroad Co. v. Bills, 104 Ind. 13, 3 N. E. 611; Pennsylvania Co. v. Marion, 104 Ind. 239, 3 N. E. 874; Spencer v. McGonagle, 107 Ind. 410, 8 N. E. 266; Diltz v. Spahr (Ind. App.; this term) 45 N.

E. 1066; Browning v. Simons (Ind. App.; this term) 46 N. E. 86. The rule appears to be well settled that, where an express contract is declared upon, there can be no recovery on an implied contract, or upon the quantum meruit. 4 Enc. Pl. & Prac. p. 922; Jonas v. King, 81 Ala. 285, 1 South. 591; Packard v. Snell, 35 Iowa, 80; Davis v. Smith, 79 Me. 351, 10 Atl. 55; Whiting v. Sullivan, 7 Mass. 109; Mills Co. v. Titus, 35 Ohio St. 253; Canal Co. v. Knapp, 9 Pet. 541; Young v. Preston, 4 Cranch, 239. In Paris v. Strong. 51 Ind. 339, the supreme court, speaking by Downey, J., said: "The defendant having pleaded a general denial to the complaint, the plaintiff could not recover unless she proved the contract alleged in her complaint. * * No rule of law can possibly be better settled, and none is more necessary in the administration of justice, than that the plaintiff must recover upon his allegations, or not at all. If this were not so, it would be mockery to require him to state a sufficient case in his complaint. Having thus stated his case, his proofs ought to be confined to it; and if he has proved a different case, however meritorious, he should be defeated." It was said in the case of Railroad Co. v. Worland, 50 Ind. 339, "that in an action based upon a special contract the plaintiff cannot sustain his action by proof of a breach of an implied contract, or of the legal duty of the defendant, as a common carrier, to transport the stock in a reasonable time. In such case there would not be a variance, but failure of proof." In the case of Schaffner v. Kober, 2 Ind. App. 409, 28 N. E. 871, this court, speaking by Black, J., said: "In an action on a special contract, there cannot be a recovery on a quantum meruit." In the case of Railroad Co. v. Levy, 127 Ind. 168, 26 N. E. 773, the supreme court, speaking by Coffey, J., said: "It is undoubtedly true that a party cannot sue upon a parol contract and recover upon a written contract. He must recover upon the case made by his complaint. A complaint cannot be made elastic, so as to bend to the changing views of counsel as the case proceeds. It must proceed to the end upon the theory upon which it is constructed." It has been held that in an action on a contract, against two defendants, when the proof shows a contract with but one of them, there can be no recovery. Cobb v. Keith (Ala.) 18 South. 325; Whittemore v. Merrill, 87 Me. 456, 32 Atl. 1008; Davis v. Owings, 2 Mo. App. Rep'r, 847. It is of the highest importance to the administration of the law that courts should adhere most tenaciously and strictly to this rule of pleading, which requires the pleader to be bound by his cause of action as stated by him. Otherwise his adversary could have no assurance of the facts he would have to controvert to meet his attacks, and would be taken unaware in the forensic encounter at the bar.

Defendant was convicted on conceding as true all the facts as stated in the indictment, alleging that in 1878 he was convicted of the crime of abortion, and that afterwards, February 22, 1896, he practiced medicine, contrary to the statute. Held, that conviction should be sustained. Haight, Gray, and Vann, JJ., holding that Laws 1893, c. 661 (Public Health Law) § 153, as amended by Laws 1895, c. 398, declaring guilty of a misdemeanor any one who, after conviction of a felony, shall practice medicine, applies, though the felony was committed before the passage of the act (section 140, prescribing the qualifications for practice of medicine, prohibiting any one from practicing who has "ever" been convicted of a felony), and that it was not an ex post facto law; Andrews, C. J., and Bartlett, J., concurring in result solely on the ground that the record did not show that defendant was ever a physician; O'Brien, J., dissenting on the ground that the statute was wholly prospective, and, if retrospective, was ex post facto; Martin, J., dissenting generally.

Appeal from supreme court, appellate division, First department.

Benjamin Hawker was convicted of a misdemeanor in the court of general sessions, New York county, and from a judgment of the appellate division (43 N. Y. Supp. 516) reversing the judgment of conviction, the people appeal. Reversed.

John D. Lindsay and Robert C. Taylor, for the People. Hugh O. Pentecost, for respondent.

HAIGHT, J. The defendant was indicted in the court of general sessions of the peace for a misdemeanor, charging that on the 6th day of March in the year 1878 the defendant was convicted in the court of sessions of Kings county of the crime of abortion, upon which he was sentenced to be imprisoned in the penitentiary for Kings county for the term of 10 years; that afterwards, and on the 22d day of February, 1896, at the city of New York, he did unlawfully practice medicine by examining, treating, and prescribing for one Dora Hoenig, against the form of the statute in such case made and provided. To this indictment he interposed a demurrer to the effect that the facts stated in the indictment did not constitute a crime, in that the statute alleged to have been violated is prospective in its application, or, if it is not pro

spective, in its application, it is null and void, as being in violation of article 1, § 10, of the constitution of the United States, and of the fifth amendment to said constitution, and also of article 1, §§ 1, 6, of the constitution of the state of New York. The demurrer was overruled by the court, and the defendant demanded a trial. A jury was then impaneled, and thereupon his counsel conceded all of the facts as stated in the indictment to be true. He then moved the court to advise the jury to acquit upon the grounds set forth in his demurrer, which was refused, and an exception taken. The case was then submitted to the jury upon the charge of the court, and a verdict of guilty was subsequently rendered, upon which the defendant was sentenced to pay a fine. The statute under which the defendant was indicted was chapter 661 of the Laws of 1893, as amended by chapter 398 of the Laws of 1895, and is known as the "Public Health Law." Section 140 provides that "No person shall practice medicine after September 1, 1891, unless previously registered and legally authorized, or unless licensed by the regents and registered as required by this article; nor shall any person practice medicine who has ever been convicted of a felony by any court, or whose authority to practice is suspended or revoked by the regents on recommendation of the state board." Section 153, among other things, provides "that any person who, after conviction of a felony, shall attempt to practice medicine, or shall so prac tice, * * shall be guilty of a misdemeanor, and on conviction thereof shall be punished by a fine of not more than $250 or imprisonment for six months for the first offense, and on conviction of any subsequent offense, by a fine of not more than $500 or imprisonment for not less than one year, or by both fine and imprisonment." It is contended that this statute should be construed prospectively. Undoubtedly it has reference only to misdemeanors committed after the passage of the act, but as to the felony charged as the former offense we think it has reference to those committed before as well as after the passage of the act. As we have shown, the provisions referred to are part of the public health law of the state, which provides a system for the preservation of the public health and the practice of medicine, and its provisions, so far as possible, should be construed as in harmony with each other. Section 140 of the act relates to the qualifications of persons who shall be permitted to practice medicine, and prohibits all persons not so qualified from engaging in such practice, including those who have ever been convicted of a felony. Section 153 provides for the punishment that shall be inflicted upon those who violate the provisions of the law. If the provisions of section 153 stood alone, unexplained, there might be some basis for the contention that it was intended to relate only to felonies thereafter

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