Mills et al. v. Hardy et al. First. That it was identical and the same ditch theretofore established by said board of commissioners. Second. That there is now constructed on 11,194 feet of the proposed line a ditch in full operation of the same dimensions as the proposed ditch. Third. That all persons mentioned in said petition as being interested, etc., have heretofore, by order of the board of commissioners, been assessed, and most of them have paid for the construction of the said ditch of like dimensions on the same line. Fourth. That the construction of said ditch will not be conducive to the public health, convenience and welfare, nor will it be of public utility, and it is not necessary. Fifth. That all of said ditch, except about 80 rods of the upper end thereof, has heretofore been dug and fully completed in accordance with the specifications of said proposed ditch; that the excavation of said 80 rods will drain a valuable pond of stock water on the land of the remonstrants, greatly damaging them in their business of stock raising in which they are engaged; that said remonstrants are now constructing a tile ditch to another part of their land where they can utilize it for stock water and wholly remove it from the land of said petitioner; that if removed and drained by said proposed ditch it will damage said remonstrants in the sum of $2,000, and that the construction of said 80 rods of said ditch has been forever enjoined by an order of the Carroll Circuit Court and can not be constructed but in contempt of said court, which order is of record, in full force and unreversed. Sixth. That the assessments made by the viewers, $1,760.15, as the costs of construction is false and fraudulent, in this, that 11,194 feet of the same is now constructed, and will cost nothing to make it, and that the construction of the remaining 80 rods would not cost more than $424.85. Reviewers were appointed, who reported against the remonstrants and in favor of the ditch, and the board of com Mills et al. v. Hardy et al. missioners ordered said ditch established and constructed. This order was made at the September term, 1881, of the board of commissioners, and the remonstrants immediately appealed from the order in term time to the Carroll Circuit Court. A change of venue was taken to the White Circuit. Court, and from there to the Cass Circuit Court. During the pendency of the proceedings William Hardy died, and his widow and heirs were made parties. A trial was had, an appeal taken to the Supreme Court, and the judgment reversed. The costs accruing subsequent to the error for which a reversal was ordered were taxed against the losing party, and a final judgment rendered in the cause establishing the ditch, and the remainder of the costs apportioned among the parties benefited by the construction of the ditch. The record of the proceedings in said cause was certified back to the board of commissioners of said Carroll county, and the amount properly apportioned charged upon the tax duplicate against the persons adjudged benefited by the construction of the ditch, including the appellants. The case appealed to this court is reported in Hardy v. McKinney, 107 Ind. 364. These appellants, being those interested except the petitioner and, remonstrants in the former suit, bring this suit against the petitioner and remonstrants, the auditor and treasurer of Carroll county, to enjoin the collection of the costs taxed against them. The appeal and errors assigned present the question as to whether or not all of the parties interested in the ditch, and who were before the commissioners' court in the original proceedings were before the circuit court on appeal, so as to be bound by the final judgment rendered in said cause, or whether the appeal only brought before the circuit court the petitioner and the remonstrants. In the decision in the case of Hardy v. McKinney, supra, it was held that on the appeal taken in the case the cause was in the circuit court for trial de novo, and that the court or jury trying the case succeeded to all the substantial Mills et al. v. Hardy et al. duties of the viewers and reviewers, and that the finding or verdict should be sufficiently specific upon every question involved to authorize a judgment finally determining all the matters in controversy. Under the act of 1875, supra, the benefits are assessed and a portion of the work assigned to each parcel of land in proportion to the benefits received. The remonstrance in this case affected the whole ditch. The case being for trial de novo, if the court found in favor of the remonstrants on the question of public utility it would terminate the case, and defeat the construction of the ditch. All of the parties assessed for its construction were interested in the result of the case in the circuit court. The circuit court, having the power of the viewers and reviewers, had the right to adjust and fix the assessments, and in case of a variance of the assessments against the remonstrants, or an assessment of damages in their favor, a readjustment in the apportioning and assignment of the work necessarily followed. Our conclusion is that under the act of 1875, supra, the appeal transferred the entire cause to the circuit court for trial de novo, and all the persons who were parties to the cause before the board of commissioners were parties in the circuit court, and were bound by the judgment rendered, and they can not attack the judgment for costs in this collateral way. If the judgment was erroneous their remedy was by an appeal in the original case. Wright v. Wilson, 95 Ind. 408; Meehan v. Wiles, 93 Ind. 52. Proper notice having been given to the appellants of the pendency of the proceedings in the commissioners' court, they were properly before the court on appeal taken in term time in the cause. They were in the circuit court without further notice. There is no error in the record. Hewett v. Fenstamaker. No. 15,052. HEWETT v. FENSTAMAKER. TAXES.-Injunction.-Payment of Part Due.-Tender.-Pleading.--An injunetion will not lie to prevent the collection of taxes, a portion of which are legally assessed, without an allegation in the complaint that the plaintiff has paid so much of the assessment as is lawfully due; or that he has tendered the same to the tax collector, and that he keeps the tender good by bringing the money into court for his benefit. From the Henry Circuit Court. J. M. Morris, for appellant. MILLER, J.-This was an action to enjoin the collection of taxes. It was alleged in the complaint that a portion of the taxes assessed against the plaintiff for the year 1888 were illegal; that at the proper time the plaintiff tendered to the defendant a sum of money being, as he claimed, the full amount lawfully assessed against him, and demanded from the defendant a receipt in full for all taxes assessed against him then due; that the defendant refused to give him a receipt in full for his taxes, but demanded, and threatened to collect, the full amount of taxes assessed against him. It nowhere appears in the complaint that the plaintiff paid the taxes which he admits were properly and lawfully assessed against him, and there is no pretense that the tender was kept good by bringing the money into court. The plaintiff does not even aver a willingness or readiness to pay his lawful taxes. An injunction will not lie to prevent the collection of taxes, a portion of which are legally assessed, without an allegation in the complaint that the complainant has paid so much of the assessment as was lawfully due; or that he has tendered the same to the tax collector, and that he keeps the tender good by bringing the money into court for his benefit. Reynolds r. Quick. Brown v. Herron, 59 Ind. 61; Morrison v. Jacoby, 114 Ind. 84. In the latter case the reasonableness of the rule requiring the complaint to show that the tender is kept good by bringing the money into court, is so fully set forth that a citation of other authority is unnecessary. It follows that the court did not err in sustaining a demurrer to the complaint, and rendering judgment for costs against the plaintiff, who is the appellant here. Judgment affirmed. Filed May 21, 1891. No. 15,077. REYNOLDS v. QUICK. CHATTEL MORTGAGE.-Recording.-As between the mortgagor and the mortgagee or the latter's assignee, it is not necessary to record a chattel mortgage. As between them it is valid without recording. SAME.-Receiver.-If a petition to foreclose a chattel mortgage shows that the mortgagor is insolvent, that the mortgaged property is not sufficient in value to secure the debt, and that there is danger of its removal beyond the jurisdiction of the court, it is sufficient to authorize the appointment of a receiver of such property. From the Warren Circuit Court. J. M. McCabe and E. F. McCabe, for appellant. MCBRIDE, J.-This is an appeal from an order appointing a receiver for mortgaged chattels. The suit was brought by the assignee of the mortgage, and of the notes secured thereby, against the mortgagor to collect the sum due on the notes and to foreclose the mortgage. There is no other defendant, and the notes are overdue. The appellant urges that as the complaint does not show that the mortgage was recorded within ten days it is void, |