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2. Same.--Stockholders.-An arrange- ment with said officers that he did

ment made by persons who are di- so as surety or guarantor to the bank rectors of a railroad company with for both the other makers, and not a contractor, by which such persons as joint surety with B. After maare to share in the profits of the turity the bank sucd A. B., and C. contract for the construction of the upon the note; C. was “not found;"> road, can only be confirmed by the and judgment was rendered against stockholders, and not by the direct- A. and B. by default, upon their ors of whom the guilty persons form failure to appear. C. paid the bank a part........

.Ibid. the amount of the judgment under

the promise by the bank to assign PROMISE.

it to him.

lleld, that the signing by C. was not See RESCISSION, 4.

such an alteration of the note as

rendered it void as to B. PROMISSORY NOTE.

Held, also, that C. was not a co-surety

with B. See ARBITRATION AND AWARD, 1; Con- Held, also, that C. was entitled to exe

SIDERATION, 2 to 5; IIUSBAND AND cution for his benefit on said judgWIFE, 12; PLEADING, 23, 24, 25; ment against A. and B., and, A. PRINCIPAL AND SURETY, 1, 2.

having become insolvent, such exc

cution was properly levied for the 1. Pleading.Bastardy.It is not a whole amount thereof upon the

good defense to a suit upon a prom- property of B. Bowser et al. v. Renissory note given in compromise of dell..

...128 a prosecution against the maker for 4. Pleading.--Abatement.Decedents' bastardy, “that it was understood Estates.- Where the assignee of a that if the child should be born too promissory note, to whom it has soon, or the circumstances would been indorsed in blank by the payee, not make out a casc of bastardy, the dies, intestate, and, there being no note was to be delivered up, and administration upon his estate, his that the child was born eight months widow, the note not having been from the time the defendant first made her property, assigns and inmet the prosecuting witness;" nor is dorses it in blank, and, the intestato it a good answer, “that the defend- having been largely indebted at the ant has since learned that he could time of his death, his debts remain prove he was not the father, but unpaid; or where, in addition to could not make such proof at the these facts, the maker holds a claim date of the compromise." Compton against the estate of the decedent, v. Davidson et al....

02 which in a suit by his administrator 2. Party Plaintiff.--It is not necessary would be a proper set-off; in an ac

that the plaintiff in a suit upon a tion against the maker by one to promissory note should be the legal whom the assignee of the widow owner thereof;—it is sufficient if he has indorsed the note in blank, upon

is the equitable owner.. ....Ibid. the note as if indorsed by the payce 3. Principal and Surety.- Co-Surety.- to the plaintiff, an answer, verified

Alteration of Writing.--A promis- by affidavit, setting forth these facts sory note payable to and at a certain and praying that the suit abate is bank was signed by A. and B., the good on demurrer.

Stebbins v. former being the maker and the Goldthwait et al......... .......159 latter his surety, and delivered by 5. Same.- General Denial.-- An anA., for a valuable consideration, to swer of general denial not sworn to C., who, for the purpose of having it would not, under our code, put the discounted for his benefit at said plaintiff upon proof of the genuincbank, it having been prepared by A. ness of the indorsement as shown and B. with that expectation, signed by the complaint, or admit evidence the note as maker, without the of the facts set up in such answer in knowledge or consent of B., upon

abatement ......

........ Ibid. the requirement of the officers of 6. Corporation.-Party Plaintiff.--A the bank, but with the express agree

note made payable to the treasurer near the railroad track, and the enof what purports to be a corporation, gines should be operated with care wi out giving the

name of the and skill to the same end. If fire treasurer, is, in cffect, payable to is communicated to such property the corporation, and shows that the from an engine by reason of a failure corporation is the party in interest; to use proper preventives, or by the and a suit on the note is properly carelessness of employees, the combrought in the name of the corpora

pany is liable for the consequences; tion. McBroom v. The Corporation but negligence in either respect of Lebanon........

.268 should not be inferred without proof,

the burden of which rests on the PROVISION.

party alleging it.................... Ibid.

4. Same.- Watchman.—The railroad For wife.

Sce VOLUNTART COVEY- company is not bound to provide a ANCE, 2.

watchman to protect property so placed by the owner, at his own instance, without any contract with

the company, in danger of taking RAILROAD.

fire by unavoidable accident from

the engines used by the compaSce Common CARRIER, 5, 6.

ny......

......... Ibid.

5. Negligence.Liability for Injury 1. Fences.-Where a railroad passes to Employee.-Suit by an adminis

upon an embankment erected in the trator, for the benefit of the children bed of a canal, such embankment and heirs at law of the deceased, must be guarded by fences. The against a railroad company, the White Water Valley R. R. Co. v. complaint alleging, that the deceQuick .....

....127 dent had been in the employment 2. Negligence.--Pleading.–Where the of the defendant as fireman on &

owner of a quantity of cord-wood freight engine for about two months, deposits the same at a certain place when, or a day mentioned, he was near a railroad track, in accordance ordered by defendant to serve as firewith the direction of an agent of the man on a particular engine attached railroad company and under an to an express passenger train, then agreement with such agent by which running on said road between cerit is to become the property of the tain points named; that said engine railroad company when measured "was old and rickety, with a weak, and paid for by the company, but defective, patched up, and leaky boiluntil so measured and paid for to er," which was not strong enough remain the property of such owner, to endure a gh pressure of steam, and while so remaining his property and could not be used with safety it is consumed by fire originating in drawing a train of any kind, and from a locomotive engine in the use that its use to an express train, in of the company and caused by the its weak and unsafe condition, innegligence of the employees of the volved great peril to the lives of the company, and these facts are averred passengers and employees; that the in the complaint in a suit by such deceased did not know, and had owner against the company to re- no means of knowing, the weak and cover the value of the wood; it is unsafe condition of said engine when not necessary to allege also the de- he was placed upon it as fireman; struction of the wood without the that defendant, with full knowledge fault or negligence of the plaintiff. of the defective and unsafe condiThe Indianapolis f Cin. R. R. Co.v. tion thereof, carelessly and negliParamore.

143 gently caused the same to used in 3. Same.-- Burden of Proof. It is drawing said express train; that on

the duty of a railroad company to the same day the boiler exploded, by use machinery properly constructed reason of its defective and unsound with a view to prevent fire from be- condition, and caused the death of ing communicated to property law- the decedent, without any neglifully placed by the owner thereof gence or fault on his part.

Held, that the complaint was good on proper construction of its road, in

demurrer. Columbus f I. C. Rail- supplying it with the necessary

way Co. v. Arnold, Adm'r..........174 equipment, including properly con-
6. Same.Master and Servant.-An structed engines, and the necessary

employer or 'master is not liable, in and proper materials for its repair,
the absence of an express contract to and in the selection of competent,
that effect, for injuries suffered by one skilful, and trusty subordinates to
of his employees solely through the supervise, inspect, repair, and regu-
carelessness or negligence of anoth- late the machinery, and to regulate
er employee of the same master, en- and control the operations of the
gaged in the same general business. road. If these duties are performed
Nor is the master rendered liable by with care and diligence by the di-
the fact that the employee receiving rectors, and one of the persons so
the injury is inferior in grade of em- employed is guilty of negligence,
ployment to the one by whose neg- by which an injury occurs to an-
ligence the injury is caused, if the other employee, it is not the negli-
services of each in his particular gence of the directors, or master,
sphere or department are directed to and the company is not responsi-
the accomplishment of the same gen- ble..........

..... Ibid.
cral end. Gillenwater v. The M. & 11. Same.- Notice.- Where the di-
I. R. R. Co., 5 Ind. 339, and Fitz- rectors have performed these duties,
patrick v. The N. A. & S. R. R. Co., and have placed the engines of the
7. Ind 436, disapproved.... ...... Ibid.

company under

the immediate
7. Board of Directors.—The board of charge, control, and direction of a

directors of a railroad company are competent and trusworthy master-
its immediate representatives and machinist, and have furnished him
occupy the relation of master to the with adequate materials and resour-
various employees engaged in oper- ces for their repair, notice to the
ating the road and superintending directors that an engine is out of
and performing the business of the repair and unsafe for use is not, in
company in its various depart- the absence of notice that is being
ments.....

....Ibid. so used, sufficient to render the com-
8. Master-Machinist-A master-ma- pany liable for an injury to a fire-

chinist who has the immcdiate man employed by the company,
charge, control, and direction, of the while in the performance of his duty
engines and other machinery of a upon such engine under the direc-
railroad company, and the repairs tion of the master-machinist, caused
thereof, and the control and direc- by the explosion of the boiler, by
tion of the engineers and firemen reason of its defective condition,
on the trains, is a fellow-servant of without his fault or negligence or
such a fireman...

Ibid. the fault or negligence of the engi-
9. Responsibility to Employee.—The neer in charge......

..Ibid.
principle of respondeat superior does 12. Injury to Animals.- Fences.
not apply as between a railroad Where an animal was killed by the
company and its employces, and the cars of a railroad company at a
company can only be held responsi- point where the road was securely
ble to the employee injured without fenced to within ten feet, on one
his own fault, while in the discharge side of the track, and within twenty
of his duty, where the injury is steps on the other, of a public cross-
caused by the negligence or failure ing, but the fences did not extend to
of the board of directors to perform the cattle-guard at the public cross-
some duty devolved upon them by ing; if they did it would stop the
express contract with the employec, cattle from going on the track;".
or which is implied from their rela- Held, that the company was not re-

tion of master to the employee. Ibid. lieved from liability by the fact that
10. Same.— Implied Duties.-It is the the road was securely fenced at the

duty of a railroad corporation to point where the animal was killed.
use every reasonable care in the The Jeff., Mad., f Ind'polis R. R.

Co. v. Avery

....277:
VOL. XXXI-37

13. Consolidated Companies.--A rail- attempting to alight from the train
road company formed by the consol- is injured.........

.... Ibid.
idation of two companies succeeds
to all the rights of cach of the cor-

RAPE.
porations of which it is composed,

See WITNESS, 2.
and may compromise and settle a
claim against one of them, and sus-

RATIFICATION.
tain an action to enforce the settle-
ment. Paine et al. v. The Lake Erie

See RAILROAD, 14, 15.
& Louisville R. R. Co...............283
14. Directors.-Fraud.--Persons who

REAL PROPERTY.
are directors of a railroad company
cannot acquire such an interest in Action to quiet title. See New Trial,
the profits of a contract for the con- 1, 2.
struction of the road as to give them Action for possession. See VOLUNTARY
a standing in a court of equity to CONVEYANCE, 3; EJECTMENT, 1; Mis-
interpose an objection to the con- JOINDER, 1; STATUTE OF FratDS, 2, 3.
summation of a compromise between Title to involved. See JURISDICTIOX, 2.
the railroad company and its con-
tractor ...

.......Ibid. REASONABLE DOCBT.
15. Same. - Stockholders. - An ar-
rangement made by persons who

See INSANITY, 4.
„are directors of a railroad company 1. A juror in a criminal case ought
with a contractor, by which such

not to condemn unless the evidence
persons are to share in the profits of

excludes from his mind all rcasona-
the contract for the construction of

ble doubt as to the guilt of the ac-
the road, can only be confimed by

cused—that is, unless he is so con-
the stockholders, and not by the
directors of whom the guilty persons

vinced by the evidence, no matter
form a part...........

what the class of the evidence, of
....... Ibid.

the defendant's guilt, that a prudent
16. Negligence.-Injury to Passenger.
A railroad train ran beyond the

man would feel safe to act upon that

conviction in matters of the highest
platform for landing passengers at a
certain station, and stopped over a

concern and importance to his own
culvert, and the proper servants of

dearest personal interests, under cir-

cumstances where there was no
the railroad company announced the
name of the station, as a notification

compulsion resting upon him to act

at all. Arnold v. The State, 23 Ind.
to the passengers for that station
that the train was there; whereupon

170, explained. Bradley v. The
State

......492
a passenger for that station, who had

2. Same.--On the trial of an indict-
paid the company the farc demanded

ment for murder in the first degree,
of him, relying on the good faith of
the company, alighted upon and into

the court instructed the jury, in ef-

fect, that if the evidence satisfied
suid culvert, without his fault or

them of the guilt of the defendant
negligence, supposing he was alight-

with such certainty that a prudent
ing upon said platform, it being at

man would feel safe in acting upon
night and so dark that lic could not

such conviction in his own import-
sce that the train had not stopped at
said platform; whereby he was

ant affairs, then, in such case, there

would be no reasonable doubt of the
greatly injured.
Teld, that the company was liable for Held, that this test was too rar-

defendant's guilt.
the injury so received. The Colum-

..Ibid.
bus and Indianapolis Central Railway

Co. v. Farrell.............. .....408
.17. Same.-A railroad company is not

RECEIVER.
legally responsible for the action of

Sec IXJUNCTION, 1.
persons not its servants in falsely
announcing the arrival of a train at

RECORD.
a station, whereby a passenger in See Bill of. Exceptions, 1, 2; PRACTICE,

30.

row.....

REDEMPTION.

made default in the payment of in-

terest on purchase money, the lands
See SCHOOL LANDS.

were resold. By the law in force at

the time of his purchase, a default-
REFEREE.

ing purchaser had a right to redeem

within one year after salc; by that
Sce CoxSIDERATION, 6.

in force at the time of the resalc and

at the time of the default, a delin-
RELATION.

quent purchaser could redeem at

any time before sale, but not after.
See INDIAN TREATY.

Held, that the right to redeem was

governed by the latter law...... Ibid.
RELEASE.

REPLEVIN.
See CONTRACT, 8, 9, 10.
Of surety. See PRINCIPAL AND SURETY, See HUSBAND AND Wife, 14.

1, 2.
Joint Debtors.-A. held a judgment

1. Afidavit.-In an action of replevin

in the court of common pleas, the
against B. and C. for a certain

affidavit of the plaintiff for delivery
amount; B. paid half the amount,
and thereupon A. executed to him a

of the property to him did not stato

whether or not it had been seized
written instrument wherein A. Cov-
enanted that he would thenceforth

under an attachment against his
"pursue the legal and equitable rem-

property.
edy on said judgment against c. Held, that the affidavit was bad.

Bridges v. Layman et al............384
alone, and not against B., looking to

2. House Treated as Personalty-
C. alone for the full and final pay-

Trust.-A., being the owner of a
ment and satisfaction of said judg-

certain town lot on which was a
ment, without, however, intending
to prejudice or interfere with the

dwelling house, built another house
rights and liabilities of said B. and

adjoining the former and perma-
C. to cach other on account of said

nently attached thereto, but stand-
judgment."

ing in a street of the town, though
Held, that this instrument did not op-

he supposed that it was upon a lot.
crate as a release of C. from liabil.

Becoming financially embarrassed,

he fled the country; and an execu-
ity upon the judgment. Aylesworth

tion was issued on a judgment
et al. v. Brown et al.................270

which had been rendered against
REMEDY.

him in favor of B., by virtue of

which the sheriff levied on and sold
See INTEREST, 3.

said house in the street as personal

property, C. being in possession
RENT.

thereof at the time of the sale. Af

terwards, the agent of B., who had
See LANDLORD AND TENANT; MISJOIN- bid off the property for B., informed
DER; MORTGAGE,

C., that by B.'s direction he would let

C. have the house for A. if (. would
RENTS AND PROFITS.

pay the amount it had been bid off

at, and also pay said agent a small
Sec HUSBAND AND WIFE, 4, 15. debt that A. owed him. C. therc-

upon wrote to A., stating the prop-
REPEAL OF JANS.

osition made by said agent, and

offering to furnish the money and
1. Inchoate Rights.-- Inchoate rights buy the houso for A.'s benefit. A.

generally, derived from a statute, replied, advising C. to buy the prop-
are lost by its repeal, unless saved erty and sell it again, pay himself
by express words in the repealing out of the proceeds, and apply the

statute. Moor v. Seaton............11 balance to the payment of A.'s
2. Same.- Redemption.-School Lands. debts. Subsequently, C., being the

A purchaser of school lands having! owner of the lot, purchased the

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