Bowen and Others v. Wood. two pumps in the machine room, and two hundred feet of piping, were placed in said paper mill since the execution of the plaintiff's mortagage for the express purpose of supplying the places of old and worn out articles of the same character belonging and attached to said paper mill when the plaintiff's mortgage was executed. A demurrer to the second paragraph of the reply was overruled. There was a trial by the court, and finding as follows: That the allegations in the complaint were true, and that to secure the note sued on, Dewey and Griffith had executed the mortgage mentioned in the complaint, whereby they mortgaged to the plaintiff the property described in the complaint, to wit, Lots number 8, 13, and 14, in block 17, and lot number 5 in block 18, of the subdivision of lands on the west side of the Wabash and Erie canal, in the south-east quarter of section 30, township 25, north of range 2 west, in Carroll county, Indiana, &c,, upon which premises are situated a paper mill, &c., together with the machinery, implements, &c., which premises were described in said mortgage by the description of "lots 8, 13 and 14, in block 17, and lot 5 in block 18, together with all the appurtenances and privileges unto the same belonging, as also all the stock, implements, machinery, and apparatus in and about the paper mill, upon said premises situated;" that on the 10th day of May, 1869, the said Dewey and Griffith executed and delivered to Bowen the mortgage mentioned in his answer, upon which there was due five thousand six hundred and seventy-three dollars; that at the time of the execution of said mortgage to Bowen, he had constructive notice of said mortgage to the plaintiff, and also actual notice of the same, and of the lien of the plaintiff upon said premises, and of the further fact that by the description in said mortgage to the plaintiff was meant and intended by Dewey and Griffith and the plaintiff the property described in the plaintiff's complaint; that the property embraced in the mortgage to the plaintiff constitutes one entire property, used for the purpose of manufacturing paper, and was not susceptible of division without Bowen and Others v. Wood. great injury thereto; and the court further found that the two turbine water wheels, four pieces of shafting, two trunnions, one boiler, one marking cylinder, one forming vat, one brick lime house, one frame bleach house, one frame boiler house, one pump in the engine room, two bed plates, two pumps in the machine room, and two hundred feet of piping, mentioned in the several answers of the defendants, were placed in said paper mill since the execution of the plaintiff's mortgage, for the purpose of supplying old and worn-out articles of the same character, belonging to said paper mill when the plaintiff's mortgage was executed, and that they formed a part of the paper mill and were subject to the plaintiff's lien. A motion for a new trial was overruled, and judgment rendered on the finding. 2. The second alleged error relates to the sustaining of the demurrer to the third paragraph of the answer of Dewey setting up the payment of five hundred dollars over and above the legal rate of interest. If this paragraph sets out the facts with sufficient particularity (see Engler v. Collins, 16 Ind. 189) in other respects, it fails to show when the amount was paid. If it was paid while the act of 1865 (3 Ind. Stat. 316) was in force, it could not be recovered back, or set off, and therefore the paragraph is bad. 3. The third point made is, that the court erred in sustaining the demurrer to the fourth paragraph of the answer of Bowen. We are quite well satisfied that this ruling was correct. The fact that Bowen examined the record of the mortgage of the plaintiff, and believed that it did not embrace the property mortgaged to him, and therefore took his mortgage, is no defense. The plaintiff's rights cannot be made to depend on what he believed. There was no merit in this ground of defense, as fully appears from the finding of the court that Bowen had constructive and actual notice of the mortgage and lien of the plaintiff, and that it was meant by the parties to embrace the property described in the complaint, and on which the defendant Bowen was taking his mortgage. VOL. XXXV.-18 Bowen and Others v. Wood. Perhaps this point was involved in the issue made by the general denial. It would seem that it was so considered by the common pleas, as it found on that point. We think the property was sufficiently described to identify the same. It was described in the mortgage as lots in Carroll county, Indiana, giving the numbers, on which there was situated a paper mill; and the complaint alleges that the mortgagors never, at any time, owned any other lots in that county or elsewhere, on which was a paper mill. The more particular description given in the complaint which is incorporated into the judgment, and which will enable the sheriff to advertise and sell the property, renders the description entirely sufficient. Whittelsey v. Beall, 5 Blackf. 143. Bowen says he examined the record of the plaintiff's mortgage. He then saw that it was a mortgage from Dewey and Griffith on real estate on which was a paper mill, including the personal property in the same. Having learned this fact, he takes a mortgage on the same property, by a description only a little variant from that in the plaintiff's mortgage, naming the paper mill, and enumerating the articles of personal property therein, almost as in the plaintiff's mortgage. The paragraph was bad. The next question is as to the sufficiency of the second paragraph of the reply. It alleges that the articles enumerated, which were put in the paper mill since the date of the plaintiff's mortgage, were put there to supply the place of old and worn out articles of the same character, belonging and attached to the mill when the plaintiff's mortgage was made. We must regard these things as having become a part of the realty by their annexation thereto, and as being subject, with the rest of the property, to the prior lien of the plaintiff's mortgage. Sparks v. The State Bank, 7 Blackf. 469, and cases cited; Seymour v. Watson, 5 Blackf. 555 ; Millikin v. Armstrong, 17 Ind. 456; 1 Hilliard on Mortgages, 432, h. 5. On affidavit, the attorney who was appearing for the defendants was required to show his authority for so doing as to Griffith, and showing only that he had been employed by Dewey, and not by Griffith, he was not allowed to defend Stanley. Manly. and who for Griffith. There was no error in this ruling. He could not appear for a party who had not retained him did not wish to make any defense to the action. no other question in the record. There is The judgment is affirmed, with two per cent. damages and costs.* F. Applegate, S. A. Huff, and B. W. Langdon, for appellants. J. H. Gould and R. P. Davidson, for appellee. * Petition for a rehearing overruled. STANLEY V. MANLY. ELECTION.-Distinguishing Mark on Ballot.-The words "Republican ticket," printed at the head of a ballot, and on the same side that the names of candidates are printed upon, is not such a distinguishing mark or embellishment as to require the inspector of an election to refuse the ballot when offered. APPEAL from the Cass Circuit Court. PETTIT, J.-This was a contested election for the office of Sheriff of Cass county, commenced before the board of commissioners, where the contestee, appellee here, was successful; and on appeal to the circuit court, on his motion, the cause was dismissed for want of a sufficient complaint or statement of facts. In 1867, the General Assembly enacted as follows: "That all ballots which may be cast at any election hereafter held in this State shall be written or printed on plain white paper, without any distinguishing marks or other embellishment thereon except the name of the candidates and the office for which they are voted for, and inspectors of elections shall refuse all ballots offered of any other description: Provided, Nothing herein shall disqualify the voter from writing his own name on the back thereof." At the October election, in 1870, there were ballots voted Napier and Another v. Mayhew and Another. for the contestee, with the words "Republican Ticket" printed at the head, and on the same side that the names of the candidates were printed. The only question before us is, was this such a distinguishing mark or embellishment as to require the inspectors to refuse the ballots when offered? In Druliner v. The State, 29 Ind. 308, this question was directly before this court, and was answered in the negative; and we fully concur in the decision of the court. See, also, Gass v. The State, ex rel. Clarke, 34 Ind. 425. The judgment is affirmed, at the costs of the appellant. D. B. McConnell, H. C. Thornton, S. T. McConnell, and M. Winfield, for appellee. NAPIER and Another v. MAYHEW and Another. PLEADING.-Complaint.—Evidence.—In a complaint by M. and B. upon a note, they alleged that they were doing business under the firm name and style of M. & B., and that the defendants were doing business under the name and style of N. & V., and that the defendants by their note, a copy of which was filed with the complaint, promised to pay the plaintiffs, &c. Held, that the note being set out, the allegations of the complaint were equivalent to a direct charge that the defendants, by the names of N. & V., by their note, promised to pay the plaintiffs by the names of M. & B. the sum mentioned in the note. Held, also, that the allegations in the complaint as to the partnership or firm name and style of the respective parties, was mere surplusage, and not necessary to be proved, and might be regarded as stricken out; and the execution of the note not being denied under oath, no proof was necessary other than the note itself. APPEAL from the Fountain Circuit Court. WORDEN, J.-Complaint by the appellees against the appellants, as follows, after entitling the case: "Plaintiffs, doing business under the firm name and style of Mayhew & Branham, complain of the defendants, doing business under the name and style of Napier & Voltz, and say that the defendants, on the 16th day of February, 1870, |