If a mortgagee, in foreclosing a mortgage, fails to set up any claim that he may have for taxes paid, he can not enforce such claim as to the other parties to the suit or the purchaser of the land under the foreclosure decree. Dixon v. Eikenberry, 161 Ind. 311. ARTICLE 40.-HABEAS CORPUS. SEC. 1133. Judgment, inquiry on habeas corpus. 1133. Judgment, inquiry on habeas corpus. If a court has jurisdiction of the subject-matter of the action and of the person, no inquiry can be made into the legality of the judgment rendered or process issued thereon, under a writ of habeas corpus. Webber v. Harding, 155 Ind. 408; Peters v. Koepke, 156 Ind. 35; Gillespie v. Rump, 163 Ind. 457. If a judgment is rendered by a court of competent jurisdiction, a person held in custody under such judgment can not be discharged on a writ of habeas corpus on the ground that the statute or ordinance on which the judgment is based is unconstitutionel. Koepke v. Hill, 157 Ind. 172. That an affidavit under which a person is held in custody does not charge a criminal offense is no cause for discharging such person on a writ of habeas corpus. Cruthers v. Bray, 159 Ind. 685. Errors of law committed by a court having jurisdiction over the subject matter and person will not be sufficient cause for the discharge of a person, under a writ of habeas corpus, who is held in custody by virtue of a judgment rendered by such court. Gillespie v. Rump, 163 Ind. 457. An information can not be filed on the relation of a private person to determine the right of a person to hold an office unless such relator has a special interest in such office not common to the general public. State v. Reardon, 161 Ind. 249. If the sheriff of a county forfeits his office, the coroner of the county can not file an information on his own relation to have such forfeiture judicially declared. State v. Dudley, 161 Ind. 431. If a prosecuting attorney files an information on his own relation, and the action is sent to another county on change of venue, such attorney will continue to be the relator. Eel River R. R. Co. v. State, 155 Ind. 433. 1148. Usurping office, information. If a relator in an information seeking to remove an officer from an office, and to obtain possession thereof, claims title to the office, it must be alleged that such relator has taken the oath of office and given bond, as required by statute. State v. Wheatley, 160 Ind. 183. SEC. ARTICLE 42.—INJUNCTIONS. SEC. 1162. Proceedings to obtain injunction. 1164. Notice unnecessary, emergency. 1162. Proceedings to obtain injunction. An injunction will not lie to prevent a county auditor from entering upon the tax duplicate an illegal tax assessment. Smith v. Smith, 159 Ind. 388. To warrant the granting of an injunction it must be alleged and proven that the plaintiff will suffer substantial and serious injury if relief by injunction is not granted, and that there is no adequate remedy at law. Hart v. Hildebrandt, 30 App. 415. Injunction will not lie to prevent the acquiring of an easement over lands as the statute provides an adequate legal remedy. Hart v. Hildebrandt, 30 App. 415. 1164. Notice necessary, emergency. The distinction between a temporary restraining order and a temporary injunction is, that the restraining order issues without notice on showing an emergency, and the injunction issues only after notice and hearing. Terre Haute Ry. Co. v. St. Joseph R. R. Co., 155 Ind. 27. If no appeal will lie from a judgment, an appellate court will not require a judge of the trial court to rule on a motion for a new trial and to enter a judgment. State v. Branyan, 30 App. 502. Mandate will issue to compel a judge to sign a bill of exceptions only when such signing is necessary to perfect an appeal. State v. Woodhull, 27 App. 576. Mandamus will not lie when there is an adequate remedy by an appeal or an ordinary action. State v. Schmetzer, 156 Ind. 528. An officer may be compelled by mandate to pay over money in his hands to another officer when it is his duty under the law to make such payment. Wood v. State, 155 Ind. 1. Mandamus will lie to compel persons to permit taxing officers to examine books and papers for the purpose of listing and assessing property for taxation. Coöperative Ass'n v. State, 156 Ind. 463. A township trustee will not be compelled by mandate to locate a school and build a school house at a particular place. State v. Schmetzer, 156 Ind. 528. Mandamus will not lie to compel county commissioners or township trustees to remove bridges over streams to enable a ditch contractor to construct a ditch. State v. Board, 157 Ind. 96. When mandamus will lie to compel a board of county commissioners to proceed to collect a tax voted and levied for the purpose of aiding in the construction of a railroad. State v. Board, 162 Ind. 580. If municipal authorities make an assessment against property for the expense of public improvements, such authorities can not be compelled by mandate to revise or make a new assessment for such an amount as the court thinks proper. Gorman v. State, 157 Ind. 205. 1183. Application, return, neglect. An application or petition for a writ of mandate may be verified by any person competent to make an affidavit. Baltimore R. R. Co. v. State, 159 Ind. 510. The issuance and delivery of a writ of mandate is the only mode provided by statute for bringing a defendant into court in mandamus proceedings. Board v. Mowbray, 160 Ind. 10; Hart v. State, 161 Ind. 189. 1184. Writ, alternative or peremptory. The mode of acquiring jurisdiction over a defendant in mandamus proceedings is by the issuing and service of an alternative writ of mandate, and not by the service of am ordinary summons. Board v. Mowbray, 160 Ind. 10; Hart v. State, 161 Ind. 189. 1185. Issues joined, trial. On a return being made to a writ of mandate, issues of law and fact may be joined, and a trial had as in ordinary civil actions. Wood v. State, 155 Ind. 1. If the facts set up in an answer by a defendant in an application for a writ of mandate shows that it was not the clear legal duty of the defendant to perform the act which, it is alleged, he failed to perform, such answer will constitute a defense to the application for the writ. Wood v. State, 155 Ind. 1. SEC. ARTICLE 45.-PARTITION. 1201. Petition, contents, jurisdiction. 1202. Practice in actions for partition. SEC. 1222. Costs and expenses, apportioning. 1201. Petition, contents, jurisdiction. The superior court of Allen county has jurisdiction of actions for the partition of real estate situate within such county. Romy v. State, 32 App. 146. 1202. Practice in actions for partition. The time and manner for making motions for new trials, in actions for partition, is governed by the provisions of the civil code. Van Buskirk v. Stover, 162 Ind. 448. 1222 Costs and expenses, apportioning. When defendants in an action for partition appear and contest the claims of the plaintiff, no part of the fees of the attorney for the plaintiff should be taxed as costs in the action. Osborne v. Eslinger, 155 Ind. 351; St. Clair v. Marquell, 161 Ind. 56. 1226. Trial of suretyship. If a claim filed against an estate is founded upon a note executed by the decedent and others, and such claim is transferred to the issue docket for trial, the living makers of the note may be made defendants to the action and the question of sureship tried upon proper issues formed. Bowman v. Citizens Bank, 25 App. 38. 1228. Judgment in force for surety. If a surety pays a judgment before the question of suretyship is determined, he may have such question subsequently tried and obtain execution on the judgment for his use. Todd v. Oglebay, 158 Ind. 595; Young v. Stevens, 28 App. 654. When the purchaser of land assumes to pay liens on the land as part of the purchase money, the grantor becomes the surety of such purchaser, and if the grantor pays such liens he becomes entitled to all the remedies given by statute to sureties against principals. Todd v. Oglebay, 158 Ind. 595. 1233. Rate of interest. When a surety pays a debt of the principal, he is entitled to recover interest on the amount paid at the same rate that the debt paid by him called for. Hamilton v. Hamilton, 162 Ind. 430. 1235. Defective bonds cured. Defects in replevin bonds are cured by statute. Rauh v. Waterman, 29 App. 344. General consideration as to the powers and duties of courts in the appointment of receivers. Chicago Ry. Co. v. Kenney, 159 Ind. 72. If the stockholders of a corporation are unable to agree upon its management, and it has no money to pay its debts, a receiver may be appointed. Sheridan Works v. Marion Trust Co., 157 Ind. 292. A receiver can not be appointed for a building and loan association, at the suit of a stockholder, without the recommendation of the auditor of state. Huntington Ass'n v. Fulk, 158 Ind. 113. An action can not be maintained against a life tenant solely for the appointment of a receiver because such tenant does not make repairs and fails to pay assessments for street improvements. Hay v. McDaniel, 26 App. 683. Power of courts to appoint receivers to collect rents of mortgaged lands when the property has been sold under foreclosure proceedings. Russell v. Bruce, 159 Ind. 553. A receiver may be appointed in a suit for the settlement of a partnership when the assets of the firm are liable to be wasted, or when one partner is appropriating the assets to his own use. Fink v. Montgomery, 162 Ind. 424. A receiver may be appointed at the instance of creditors when the property subject to the payment of their debts is liable to be wasted or taken out of the jurisdiction of the court. Levin v. Florsheim, 161 Ind. 457. 1242. Powers of receivers. Receivers under the direction of the court have power to take possession of the property in controversy. Chicago Ry. Co. v. Kenney, 29 App. 506. Power and authority of receivers generally to prosecute and defend suits. Coddington v. Canaday, 157 Ind. 243. 1245. Appeal from order appointing. The statute providing for an appeal from an order appointing or refusing to appoint a receiver within ten days, does not preclude a review of such an order when an appeal is taken from a final judgment in the cause under the general provisions of the civil code. Hay v. McDaneld, 156 Ind. 390; Chicago Co. v. Gostlin, 30 App. 504. If an appeal is taken from an order appointing a receiver, and such appointment is confirmed, and afterwards an appeal is taken in the main action, the receiver will not be enjoined from taking possession of the property during the pendency of such appeal. Chicago Ry. Co. v. Kenney, 29 App. 506. An action of replevin will lie to recover the possession of the body of a dead dog. Vantreese v. McGee, 26 App. 525. 1290. Order, execution, undertaking receiver. Defects in undertakings executed in actions of replevin are cured by statute. Rauh v. Waterman, 29 App. 344. SEC. ARTICLE 50.-GENERAL PROVISIONS. 1302a. Publication in two papers. SEC. 1306a. Bond, deposit of money or check. 1309. Words, how construed. [Acts 1903, p. 360. In force April 23, 1903.] 1302a. Publication in two papers.-1. That in all cases wherein the auditors and treasurers of the several counties of this state are required by law to publish notices affecting county affairs in a public newspaper, said auditors and treasurers are hereby required to publish said notices as by the several statutes required and in two leading newspapers published in their respective counties, representing the two political parties casting the highest number of votes in such counties respectfully [respectively] at the last preceding general election, if there shall be such newspapers published in said county. [Acts 1905, p. 436. In force March 6, 1905.] 1302b. Counties of 150,000, publication.-1. That in all cases wherein the auditors and treasurers of any counties in the state having a popula |