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The Columbus and Indianapolis Central Railway Co. v. Farrell.

sufficient facts; the demurrer was overruled, and the defendant excepted.

The defendant then answered by the general denial, and also several special paragraphs upon which no question is made in argument here; and the plaintiff replied by the general denial.

The cause was tried by a jury, who found for the plaintiff, assessing his damages at three thousand dollars, and answered interrogatories.

A motion for a new trial made by the defendant was overruled, and the defendant excepted.

In the instructions to the jury, excepted to by the defendant, was the following:

“If the plaintiff did not alight from the train until it had been fully stopped, nor until the defendant's servants had announced the name of the station or it had been announced from the proper and usual place of making such announcement, he had a right to believe that the train had reached a proper stopping place, and that he could safely alight; and if lie did then alight, and did so without knowing the danger of the place, and in consequence of the darkness of the night he had no reasonable opportunity of ascertaining the danger, and he was injured by so alighting, he will be entitled to a verdict. * * * If at the stopping of the train an announcement of the station was made at and from the point on the train where announcements were commonly and properly made, so as to be heard by the plaintiff, then the plaintiff had, from that, a right to believe that the train was at a proper and safe landing place; and if he stepped off, after the stopping of the train, without fault on his part, and received injury, then he would be entitled to recover. But if the announcement was made by a person not a servant of the company, and from a place not the usual and proper place on the car for making such announcement, or was the mere talk of the passengers upon the train, and was not within the knowledge of the defendant's servants, then the act of plaintiff in stepping off the train in an unsafe place would

The Columbus and Indianapolis Central Railway Co. v. Farrell.

not be caused by any fault or negligence of the defendant; and in such event the plaintiff would not be entitled to recover."

FRAZER, J.-We cannot reverse this judgment upon the cvidence, as we are earnestly pressed to do. As it appears upon paper it creates a decided impression that the verdict was wrong. But that depends upon the credit due to the witnesses; and it may be if they had been examined in our personal presence as they were before the jury which found the verdict and the judge who overruled the motion for a new trial, that we would have thought otherwise. There are tests of truth in testimony impossible to be put into a bill of exceptions; and it is therefore wise that where the question is one of credibility only, the action of the lower court should stand.

The instruction to the jury, to the effect that the railroad company was legally responsible for the action of persons not its servants, in falsely announcing the arrival of the train at the station, whereby the plaintiff in attempting to disembark was injured, was not, in our judgment, a correct statement of the law. But this crror was clearly harmless. The jury found, in answer to an interrogatory, that the announcement was, in fact, made by the proper servants of the defendant.

We think that the complaint was good.
The judgment is affirmed, with costs.

J. L. Ketcham, J. L. Mitchell, and W. A. Ketcham, for appellant.

M. M. Ray, J. W. Gordon, and W. March, for appellee.

Burrows v. Holderman and Another.

BURROWS v. HOLDERMAN and Another.

PracticE.Demurrer.-Misjoinder of Causes.-Complaint to recover the pos

session of certain real estate held by the defendant as tenant of the plaintiff, for non-payment, upon ten days' notice, of rent duc, and also for the rent unpaid, in one paragraph. Finding, that the plaintiff was not entitled to the possession of the premises, and that the defendant was indebted

to the plaintiff in a certain sum. Judgment for the sum found due. Held, that if two causes of action were improperly joined, the only method

to reach that error was by demurrer. IIeld, also, that this court can in no case reverse a judgment for this error.

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APPEAL from the Marion Civil Circuit Court.

Ray, J.—This cause was commenced before a justice of the peace and appealed to the circuit court. The complaint is as follows:

"Henry Holderman and Isaac Boone complain of G. W. Burrows, and say that said defendant as tenant of plaintiff occupied certain real estate under a written lease filed herewith and made part hereof, and containing a description of said real estate; and said Burrows has failed to pay the rents due under said lease, and is now indebted to said plaintiff in the sum of three hundred and twenty-five dollars for said rent; and that on the 1st day of July, 1867, they caused a notice to be served on said Burrows, which, together with the return thereon, is filed herewith and made part hereof, demanding possession of said premises within ten days from that time, if the rents should not be paid; said defendant has failed to pay said rent and refused to deliver up possession of said premises; wherefore plaintiff's pray judgment for possession of said premises, and for two hundred dollars damages for non-payment of rent, and for all proper relief.”

To this a denial was filed. Trial by the court, and a finding that the plaintiff was not entitled to the possession of the premises, and that the defendant was indebted to the plaintiff in the sum of one hundred and twelve dollars and fifty cents, rent to July 1st, 1867.

The defendant moved for a new trial. The only reason

Burrows v. Holderman and Another.

assigned, which is argued in this court, is, that the finding is against the law and the evidence. The motion was over- . ruled, and judgment rendered for the sum found due.

It is insisted, that the action is brought under the provision of the “act concerning the unlawful detention of lands and the recovery thereof,” 2 G. & II. 630; and that section 1 of that act only authorizes a recovery of damages for the detention when the landlord is entitled to the possession of the lands; and as the court finds he is not entitled to such possession in this case, there can therefore be no re

covery here.

There was no motion made to separate the two causes of action. There was no demurrer for misjoinder of causes of action.

The section already cited authorizes the suit for the recovery of the lands, and also provides for the recovery at the same time of damages for the detention.

This action is not for damages for the detention, but for rent unpaid.

The "act containing several provisions regarding landlords, tenants, lessors, and lessees,” 2 G. & 1. 358, provides, in section 17, that “rents from lands are collected as other debts.”

If these two causes of action were improperly joined, the only method to reach that error was by demurrer. We can in no case reverse a judgment for this error. 2 G. & H. 81,

sec. 52.

Judgment affirmed, with costs and ten per cent. damages.
E. W. Kimball, for appellant.
J. T. Dye and A. C. Harris, for appellees.

Foy and Others v. Reddick.

Foy and Others v. REDDICK.

REPLEVIN. - House Treated as Personalty.-- Trust.-A., being the owner of

a certain town lot on which was a dwelling bouse, built another house adjoining the former and permanently attached thereto, but standing in a street of the town, though he supposed that it was upon a lot. Becoming financially embarrassed, he fled the country; and an execution was issued on a judgment which had been rendered against him in favor of B., by virtue of which the sheriff levied on and sold said house in the street as personal property, C. being in possession thereof at the time of the sale. Afterwards, the agent of B., who had bid off the property for B., informed C., that by B.'s direction he would let C. have the house for. A. if C. would pay the amount it had been bid off at, and also pay said agent a small debt that A. owed him. C. thereupon wrote to A., stating the proposition made by said agent, and offering to furnish the money and buy the house for A.'s benefit. A. replied, advising C. to buy the property and sell it again, pay himself out of the proceeds, and apply the balance to the payment of A.'s debts. Subsequently, C., being the owner of the lot, purchased the house of said agent, paying him therefor the amount the agent had bid for it and a certain sum for back rent, C. furnishing the money, which A. never refunded or offered to refund. C. continued to occupy the house, always claiming it as his own, till his death, when his sole heir sold the lot and the house in the street, by two separate and distinct sales, to D. Suit by A. against D. to recover possession of the house in the street as personal property, the abore facts appearing in evidence, but there being no written eridence of

title to the lot in C. or D. Leld, that, in the absence of a conveyance to C., in terms sufficiently compre

hensive to cover the house as appurtenant to the lot, it was reasonable to

presume that it was properly treated by the parties as personalty. Held, also, that there was no trust in favor of A. TIeld, also, that a subsisting indebtedness of C. to A. growing out of a part

nership which had existed between them long prior to the purchase of the house by the former, could not be deemed a refunding by A. of the money paid by C. for the house.

APPEAL from the Pulaski Common Pleas.

ELLIOTT, C. J.—This was a suit by Reddick against Caroline Foy and others, to recover the possession of a house as personal property, situate in a street in the town of Winamac.

An answer was filed, containing the general denial, and

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