Abshire v. The State, ex rel. Bickle. See the notes to this section. See, also, sec. 396 and notes, 2 G. & H. 225-6. The reason of the law requiring notice, if it was ever Naw in such a case, having ceased and failed in this State, the law does no longer exist. This is true of all laws, religious and moral, in their localities, national, international, state, municipal, and of society. ABSHIRE V. THE STATE, EX REL. BICKLE. BASTARDY.-Finding of Justice of the Peace.-The affidavit, or complaint, filed before a justice of the peace in a bastardy proceeding, charged that the defendant was the father of a child of which the relatrix had been delivered. The justice found "the said complaint true." Held, that this was, in effect, a finding that the defendant was the father of the child. SAME.-Open and Close.—It was not error to award to the State the close of the argument on the trial of a bastardy proceeding, when the law allow. ing the defendant in a criminal action the close of the argument was in force. MOTION FOR NEW TRIAL.-The refusal to award to a party the close of the argument upon the trial of an action, if error, should be assigned as a cause in a motion for a new trial, and cannot constitute an assignment of error on appeal to the Supreme Court. BASTARDY.-Attorney's Fees.-Evidence.-The fees of attorneys employed by the relatrix in a bastardy proceeding cannot be recovered by her in such proceeding, and it is error to allow her on the trial thereof, over the defendant's objection, to introduce evidence to prove the amount of such fees. From the Wabash Circuit Court. A. Taylor and F. M. Morgan, for appellant. DOWNEY, J.-This was a prosecution for bastardy by the appellee against the appellant. The prosecution was commenced before one J. G. McGuire, a justice of the peace. At the instance of the defendant, there was a change of venue, Abshire 7. The State, ex rel. Bickle. and the cause was sent to one William L. Russell, another justice of the peace. Here there was an examination of the relatrix, and the justice of the peace found "the said complaint true. The defendant was recognized to the common pleas. Omitting the mention of some motions hereafter noticed, the defendant filed a general denial of the complaint; there was a trial by a jury, a verdict against the defendant, a motion for a new trial overruled, and judgment for the State. There are six errors assigned. 1. It is claimed that the court improperly overruled the motion of the defendant to dismiss the cause, for the reason that there was no finding against the defendant by the justice hearing the charge. The affidavit or complaint charged that the defendant was the father of the child of which the relatrix had been delivered. The justice found that the complaint was true. This was, in effect, finding that the defendant was the father of the child. 2. The court awarded to the State the close of the argument. It is claimed that, as the law allowing a defendant in a criminal action the close of the argument was in force when this cause was tried, this ruling was erroneous. We think This is a civil, and not a criminal action. But if this was not so, the objection to the proceeding should have been urged as a reason for a new trial, and not as an independent assignment of errors. not. 3. It is next urged that the court erred in overruling the defendant's motion for a new trial. The only reason alleged for a new trial in the written motion is, that the evidence was not sufficient to justify the verdict of the jury. The evidence is not in the record, and, therefore, the question is not before us. 4. The next alleged error is the ruling of the court in admitting the testimony of one Williams to enable the court to fix the amount, in part, which should be allowed against the defendant. The child lived less than two months. The court allowed for the nursing, clothing, medical attention, Boardman et al. v. Griffin. and funeral expenses of the child, sixty-one dollars. Evidence was offered of the amount of the fees of three attorneys employed by the relatrix, to which the defendant objected. The court overruled the objection, heard the evidence, and allowed the sum of sixty dollars for such fees, making a total of one hundred and twenty-one dollars. A new trial of this matter was asked in a separate motion and refused, and this refusal is assigned as an error. There is We are of the opinion that the ruling cannot be sustained. The court is authorized to allow for the "maintenance and education" of the child. 2 G. & H. 628, sec. 15. no law, of which we have any knowledge, that authorizes the court to allow against the defendant the fees of attorneys employed by the relatrix. It is not necessary that she should incur the expense of the employment of counsel; for the statute makes it the duty of the prosecuting attorney to prosecute all such cases without expense to her. 2 G. & H. 629, sec. 21. 5 and 6. These assignments do not present any question not already disposed of. Counsel argue a question with reference to witness fees taxed in favor of the relatrix, but there is no assignment of error raising that question. The judgment is reversed, as to sixty dollars of the same, being for the attorneys' fees allowed, and as to the residue, being sixty-one dollars, it is affirmed. BOARDMAN ET AL. v. GRIFFIN. VARIANCE.-Material Variance.-Parties to an action must recover, if at all, upon the allegations of the pleadings therein; and when the trial is by the court, it cannot, any more than a jury, go outside of the case made by the pleadings and find for a party upon facts different in their general scope and meaning from the facts pleaded. From the Marion Circuit Court. Boardman et al. v. Griffin. D. V. Burns, for appellants. H. W. Harrington and H. Francisco, for appellee. DOWNEY, J.-The appellee as assignee of George Borsdorfer, an insolvent debtor, sued Omer B. Boardman, a constable, and Andrew Wallace, the execution plaintiff, to enjoin the collection of an execution in the hands of the constable, on a judgment in favor of Wallace against Borsdorfer before a justice of the peace. It is alleged, in substance, in the complaint, that the assignment to the appellee was made by the insolvent, and took effect by being recorded on the 15th day of October, 1874, and that the execution bore date on the 14th day of the same month. It is charged that, in fact, the execution issued on the 15th day of the month, and after the assignment was perfected; that Wallace's judgment was for about twenty dollars more than was legally due; that there was in the judgment twenty-five dollars for interest on an account and an addition of eight dollars in excess of said interest on said account. It is alleged that Borsdorfer was not a resident of the township in which Wallace sued him, and was about to plead that fact, and that Wallace agreed that if he would not, but would let judgment be rendered against him, no execution should issue thereon for six months, and that said Borsdorfer did allow judgment to be rendered against him accordingly, on the 24th day of September, 1874. A temporary restraining order was granted. Wallace answered that on the 14th day of October, 1874, he caused the execution to issue on his judgment, denied that he made the agreement to abstain from issuing execution on the judgment for six months, or for any other time, but did agree, after the rendition of the judgment, that in case he was satisfied that no such disposition of Borsdorfer's property would be made as would endanger the collection of his judgment, he would not cause a levy of his execution to be made for six months; but he alleges that this agreement was wholly voluntary and without consideration. He also denies all the allegations of the complaint not expressly Boardman et al. v. Griffin. admitted, and specially denies that he ever made any agreement not to have an execution issued on his judgment. He alleges that by the wrongful issuing of the restraining order herein he has suffered great loss and has been compelled to employ counsel at an expense of fifty dollars, which he prays may be allowed him as damages, etc. There was a trial by the court, and, by request, a special finding of facts and conclusions of law, as follows: "The court, upon request of the parties, plaintiff and defendant, finds specially upon the facts as follows: That on the 24th day of September, 1874, defendant Andrew Wallace recovered a judgment against George Borsdorfer before Esquire William H. Schmidts, a justice of the peace of Center township, Marion county, Indiana, for one hundred and ten dollars; that at the time of the rendition of said judgment Borsdorfer was not a resident of said township, but was a resident of another township of said county; that he, however, appeared before said justice at the time the judgment was rendered, and consented to judgment being entered against him for the amount for which it was entered; also, that he had appeared before said justice at previous sittings of the case, without raising the question of jurisdiction; that at the time said parties met at said justice's office, on the day judgment was rendered, and after the defendant, Borsdorfer, had agreed to let judgment go, he asked plaintiff, Wallace, if he would require him to stay execution on the judgment, and stated that he expected to continue business as he had heretofore been conducting it; that Wallace thereupon replied that judgment might stand six months without bail, if everything went on as before with Borsdorfer, and so informed the justice, who entered in pencil on the entry of the judgment on his docket that no execution was to issue for six months; that there was no agreement between Wallace and Borsdorfer that in consideration of Borsdorfer waiving the question of jurisdiction and consenting that judgment should go, Wallace would not cause execution to issue on the judgment for six months; nor was |