
    Madison and Indianapolis Railroad Company v. Herod.
    In a suit against a railroad company for damages for injuring cattle, the witnesses estimated the value of the property variously, from 30 dollars to 40 dollars.' Held, that the Court might find the value to he 37 dollars.
    Section 3, ch. 93, Acts of 1853, is unconstitutional.
    
      APPEAL from the Bartholomew Circuit Court.
    
      W. Herod and S. Stansifer, for the appellant.
    R. Hill, for the appellee.
    
      Monday, December 14.
   Stuart, J.

Suit by Herod against the railroad company, for damages in injuring Herod’s colt. Judgment before the justice in favor of Herod for 37 dollars. The railroad company appealed to the Circuit Court. The cause was there tried without a jury, and judgment given for Herod for 37 dollars, the injury to the colt, 37 dollars in damages, and 5 dollars docket-fee. Motion for a new trial, interposed at the proper time, overruled, and the evidence made part of the record.

The injury done to the colt was variously estimated by the witnesses at from 30 dollars to 40 dollars. The Circuit Court, as they had a right to do, placed it at 37 dollars. The 37 dollars in damages, and the 5 dollars docket-fee were assessed by the Court under the third section of the act of March 1, 1853. Laws of 1853, p. 113. That section has been declared unconstitutional in the White-neck case, 8 Ind. R. 217. Though the Court were not agreed as to the grounds on which the decision should be placed, they were unanimous in the result, that the section in question was clearly a violation of the constitution.

Per Curiam. — The judgment is reversed with costs. Cause remanded, &e.  