Brown and Others v. Ellis. question as to the validity of the verdict of the jury and the judgment of the court `rendered thereon, but we do not think that any question is raised by that motion. There was no motion made to set aside or make more perfect the verdict; there was no motion for a new trial; there was no motion to correct or set aside the judgment. Such a question cannot be raised, for the first time, in this court. The judgment is affirmed, with costs, and five per cent. damages. F. N. Sims, for appellant. BROWN and Others v. ELLIS. PRACTICE.-Motion for New Trial.-Excessive Damages.—A question as to excessive damages can only be reached by a motion for a new trial. SAME.-Judgment.—To present a question as to the kind of judgment rendered, there must have been an exception entered, or a motion made to set it aside, or to modify it, in the court below. APPEAL from the Fountain Circuit Court. WORDEN, J.-This was an action by the appellee against the appellants to foreclose a mortgage and recover judgment on a note secured thereby, executed in 1859. The complaint prayed for payment in gold. The defendants appeared and answered, but upon the calling of the cause for trial they withdrew their appearance, and the issues formed by the pleadings were tried by the court in their absence. Finding and judgment for the plaintiff, and that the amount found due be paid in gold coin. The errors assigned embrace two points only. First, that the amount found due was excessive; and, second, that the judgment for payment in gold coin was erroneous. We are of opinion that neither of the points made is properly raised by the record. The point as to excessive damages could only be reached by a motion for a new trial. Turpin v. Clark. In regard to the other point, there should have been an exception to the kind of judgment rendered, or at least a motion to set aside or modify it, before bringing the case to this court. No step of this kind was taken in the court below. The judgment of the court below is affirmed, with costs, and five per cent. damages. M. M. Milford and F. Poole, for appellants. TURPIN V. CLARK. PRINCIPAL AND SURETY.-Release of Surety by Extension of Time.-The ques tions in this case are the same as those decided in Menifee v. Clark, ante, p. 304. APPEAL from the Marion Common Pleas DOWNEY, C. J.-This was a suit by Clark against the appellant and another on a promissory note. The defendant Harrison G. Turpin answered, that by an agreement between the appellee and the other defendant, for whom he was security, the time for payment of the note had been extended without his consent, and that he was thereby discharged. There was a reply to the answer, to the second paragraph of which there was a demurrer, which was overruled, and an exception taken. The question is the same as in the case of Menifee v. Clark, at this term, ante, p. 304, and must be decided in the same way. The judgment is affirmed, with costs. W. Wallace, for appellant. C. W. Smith, Fr., for appellee. The State, ex rel. Dougherty, v. Sayer. THE STATE, on the Relation of DOUGHERTY, v. Sayer. SURETY OF THE PEACE.-In a proceeding for surety of the peace, the question as to just cause of fear relates to the time of the institution of the proceeding, and not to the time of the trial. SAME.-If, on the final trial of a proceeding for surety of the peace, it is found that the fears have, since the commencement of the proceeding, ceased to exist, this fact may be considered by the court in determining the time and amount of the recognizance to be entered into by the defendant, but it will not entitle him to an unconditional discharge, at the costs of the relator. APPEAL from the Fulton Common Pleas. WORDEN, J.-Ephraim Dougherty filed his affidavit for surety of the peace against the appellee before a justice, on which such proceedings were had as that the cause went to the court of common pleas, where it was tried by a jury, who returned the following verdict and answers to questions propounded to them, viz.: Ist. "Did the complaining witness have just cause to entertain his fears expressed in his affidavit (so far as the same relates to the defendant), at the time he made and filed his affidavit with the justice of the peace?" Answer. "Yes." 2d. "Has the complaining witness just cause to entertain his fears, expressed in his affidavit (so far as relates to the defendant), at this time?" Answer. "No." "We, the jury, find that the complaining witness, Ephraim Dougherty, has not just cause to entertain his fears, expressed in his affidavit, at this time." Upon this verdict the court discharged the defendant, and rendered judgment against Dougherty for the costs in the case. Dougherty excepted. We are of opinion that the action of the court was erroneous. Under the statute regulating proceedings for surety of the peace (2 G. & H. 640), we think if a party applying for such surety has, at the time he makes and files his affidavit with the justice for that purpose, just cause to fear, The Indianapolis, Cincinnati, and Lafayette R. R Co. v. Robinson. and does fear, that the defendant will commit such an injury as is mentioned in the statute, the case is made out, and judgment should be rendered against the defendant. In other words, the question as to just cause of fear relates to the time of the institution of the proceedings, and not to the time of the final trial. It would be a mockery of justice, where proceedings under this statute are justly and for good cause instituted, to turn the party instituting them out of court and mulct him in the costs on the final trial in the court of common pleas, because, at that time, there was no just cause of the fears which rightfully led to the institution of the proceedings. If, on the final trial, it appears that, although there was just cause for entertaining the fears alleged and for the institution of the proceedings, yet that circumstances have intervened that render the fears groundless at the time of the final trial, this may well be considered by the court in determining the time and the amount of the recognizance to be entered into by the defendant for keeping the peace in future; but it does not entitle the defendant to be unconditionally discharged at the costs of the prosecuting witness. The judgment below is reversed, with costs, and the cause remanded, with instructions to the court below to render judgment in accordance with this opinion. D. Turpie and D. P. Baldwin, for appellant. H. B. Jamison, for appellee. THE INDIANAPOLIS, CINCINNATI, AND LAFAYETTE R. R. Co. v. ROBINSON. RAILROAD.-Killing Stock.-Pleading.-To render a railroad company liable under the statute for killing stock, it must be alleged in the complaint, and proved, that the road was not securely fenced. It is not sufficient to say that the road "was not fenced according to law." The Indianapolis, Cincinnati, and Lafayette R. R. Co. v. Robinson. SAME.-Pleading.—To be good at common law, a complaint against a railroad company for negligently killing stock must allege that the injury did not result from the negligence of the plaintiff. APPEAL from the Marion Circuit Court. · DOWNEY, C. J.-This action was brought by the appellee against the appellant before a justice of the peace, where there was judgment for the plaintiff, and an appeal to the circuit court. In the latter court, there was a trial by the court, finding for the plaintiff, motion by the defendant for a new trial overruled, and judgment on the finding. Two questions are presented here: first, that the complaint is insufficient; and second, that the circuit court should have granted a new trial on account of the insufficiency of the evidence. The complaint alleges, that on or about the 14th day of August, 1868, at the county of Marion, and State of Indiana, the defendant did kill two hogs of the plaintiff, of the value of thirty dollars, through the fault, misconduct, and negligence of the employees, servants, and agents of the defendant, by striking and running over the said hogs with a locomotive and train of cars running on the defendant's road, which road was not fenced according to law, &c. It is urged against the complaint, that it is not a good one for negligence, because it does not allege that the plaintiff was without fault; and that it is not good under the statute requiring railroads to be fenced, because it does not allege that the road was not securely fenced, but only alleges that the road was "not fenced according to law," which it is contended is a mere conclusion of law. To render the company liable, under the statute, it must be alleged and proved that the road was not securely fenced, &c. The Indianapolis, &c., R. R. Co. v. Means, 14 Ind. 30; Indianapolis, &c., R. R. Co. v. Williams, 15 Ind. 486; The Indianapolis, &c., R. R. Co. v. Wharton, 13 Ind. 509. In The Toledo, &c., R. R. Co. v. Fowler, 22 Ind. 316, this court held, that, to allege that the road was not "fenced in by the defendant, in manner and form as in the statute pro |