Indiana State sentinel. [volume] (Indianapolis) 1841-1853, 1850-09-05

to the Tippecanoe Court Of Common Pleas affirmed.
July 81, 1850
The Board of Commissioners Of Franklin co. '. The
IFhte Water Valley Canal Company Error to the Frank
lin c. G..
BLAcKFoRD, This was action on the case
founded tort. The plaintiffs in were the plain
is below. General demurrer to the declaration and
Judgment for the defendants.
The first count is substantially as follows That be-
fore the committing Of the grievances hereinafter men,
toned, TO wit: on, &c, at &C. there were established
and used certain highways (Which described) IN
Franklin county, which highways had been made by the
plaintiffs expense OF % 900 dollars; that until the
committing of the grievances hereinafter mentioned
there was necessity for the erection mainte
nance OF bridges along said highways but that the
in good repair that the plaintiffs then and there
had the and superintendent of said highways and
were bound to repair the same that afterwards to w.t.
on, &C., ats &c, the defendants made Canal through
said county, for their exclusive profit and crossed
and obstruced at divers places in said county, the SAID
highways, and rendered them wholly and unfit to
travel over; that thereby the money, aforesaid ex
pended by the plaintiffs wholly lost, and they had
been obliged TO expend in building and repairing bridges
said canal the further of 20 GOO dollars.
There other which are in respects
similar to the first.
The declaration concludes by averring that, by
of the in three counts, the plaintiffs
damaged 30 900 dollars.
No substantial objection is seen to the first count
respects the defendant Coffin. BY making the canal
said highways, he has, for au9ht that appears
u
nuisance because of the injury it occasions to the public
generally. Blacks. Comm. 1915 X. S. p. ga. He
Is also table, in civil suit to any person who may
have sustained any special damage by the offence. See
Greasy v. Codlinq ct al Binah. 263 Martin ".
Bliss, Black 80. The law makes it the duty of the
commissioners have bridges built and kept repair,
where necessary, the highways in the county r. s.
p. 1888 IT. in consequence of Collins making the canal
the plaintiffs have been Obliged they alege to build
repair bridge bridges in the county where the
canal crosses said highways, or any OF them they he
IA hava lal Inv ~
sance and may the offender, IN an action ON the
case, for such damage.
The case is, however, different to the other de-
lendants-the White Water Valley Canal Company
They authorized 10y public law to make the canal
and take tolls thereon the condition. among others,
that they would build suitable and convenient bridges
where the canal should highways Acts OF 1912,
PIP 81 42. We have doubt but that the canal com
pany bound only build the bridges but also 10
keep them in repair. They have constructed canal
for their benefit, and have destroyed the highways
where they crossed by the canal The maxim, Qui
senta cORodn seRtTe debet Onus, applies to the case
See The King The Inhabitants of Kent 10 East 300
The King The Inhabitants of Lindsay, IA East BIZ
The King Kerrison, Maule and Selw 526; Hcacock
v. Lockwood, IA Friend IS; Dygert V. Schenck % i'd.
446; Rowe v The Granite Bridge Corporation, 81
Pick 344.
In the before us the canal company must secure
the persons interested from being injured by the canals
crossing the highways which cannot be done unless the
company build and keep repair bridges the canal
at such crossing places II they neglect to perform this
duy, they must pay the damages which SUCH neglect
may occasion. A reasonable time, however, must be
given to the company build repair the bridge or
bridges which, by their making the canal it has become
their duty to build or repair. The count now under
consideration Is bad respects the company, for not
alleging that reasonable time for the performance OF
the work 10 the bridges (Which work was left undone
by the company) had elapsed before the plaintiffs per-
! formed it,
The second count alleges that both the canal compa-
ny and Coffin were authorized o make the canal &c
The objection to the first count which we have noticed
applicable TO the company, exists to the second
count, and applies to Coffin well the company.
The third count alleges no special damage and is bad
I for that reason
As this is an action against two defendants founded
on tort, and the first contains good cause of
ton against OF the defendants the demurrer to the
whole declaration should have b-en sustained Re
rerSed Proceedings subsequent to the demurrer SET
aside. Remanded for further proceedings, with leave
to the plaintiffs to amend the declaration.
Gebrea,h v. Doe d. Zook, ct al. Error to the Wayne
c. c. Affirmed.
Stanley al V. The State, er rel. &c. Error the
Fayette c. c. Affirmed, with 2 per cent damages.
Doe d. Ingram Allen. Appeal from the Tippecanoc
BLAoKFoRD IA recognizance taken by the officer
having execution in his hands, when endorsed the
execution and returned to the clerks office as the statute
directs, becomes, thereby, matter of record.
! recognzance, endorsed on execution, when duly
returned to the proper clerks Office, has the force and
effect Of judgment, upon which an execution may, al
II the proper time issue.
Il is necessary that the recognzance should have
been copied by the clerk into his executiondocket be-
fore the execution issued upon it. Reversed.
/ Warner v. Crab. Error to the Parke c. C.
BLAcKFoRD J.-By the statute of 1898, the replevir
bail not liable execution without scire iacias
The scire lacas against replevin bail stated that
execution against the principal issued on the 18th
June, lS43 and returned on the 9th OF july l843
no property found.
Held that the scire acas was fatally Objectionable
for showing that the debt could not have been collect
ed under the execution which issued against the prnci
pal. The execution retnrnable by law, at the ex
piration of from its date. r. s. 1913; p 1046
The the execution not made according C
the scirc iacas, until long after the day and
does appear that any thing had been done by tho
officer under the execution whilst the in force
Where a motion is made to dismiss scire lacias fo
reasons apparent its face, and objection is made
by the opposite party, who Is present, TO the form
raising the question, late afterwards thu
objection otherwise tenable, to make il. Affirmed
Agplsgate '. DOea Hal Appeal from the Fayett
G. G..
BLAcKFoRD, 1.-The plaintiff in ejcctmcnt ior
mery required 10 prove not only his lessons title, bu
also the defendants possession. Goodnight v. Rich
81.