In notice of mechanic's lien. See MECHANIC'S LIEN, 1. MORTGAGE. See DESCENT, 6; HUSBAND AND WIFE 17; JURISDICTION, 12, 13. 1 such defendant in the wrong. He may save himself from costs by disclaiming any interest.............Ibid. MURDER. See CRIMINAL LAW, 14, 15, 16, 28, 31, 36, 41, 43 to 47. N NAME. See CORPORATION, 3. Initial Letters.-Where a judgment is rendered before a justice of the peace against a defendant by a name in which an initial letter is used instead of his Christian name, the proceedings and judgment are thereby rendered irregular, but not void. Bridges v. Layman et al............384 Code.-Law and Equity.-Subrogation.-Improvements.-Where mortgaged real estate has been sold and conveyed by the mortgagor to the mortgagee or his assignee, there being a junior judgment-lien thereon, and the vendee of such purchaser, without actual notice of such judgment-lien, has expended money in valuable permanent improvements, without which the value of the property would not exceed the mortgage; though the judgment-plaintiff has a complete legal remedy to enforce his lien, by execution, yet, upon the application of such vendee, the execution-plaintiff will be required to exercise his legal right subject to the equitable right of the vendee, for whom the mortgage will be kept on foot, and to 1. whom the value of the improvements will be allowed-the court, in taking account, charging the vendee with the value of the rents of the property, as it would have been without such improvements, for the time it has been held by him. Troost v. Davis, Sheriff, et al................34 2. Jurisdiction.-Title to Real Estate. 'Where the main object of a complaint in the court of common pleas is to have satisfaction entered of a mortgage of real estate, there is no error in overruling a motion made by the defendant, before answer, to transfer the cause to the circuit court, on the ground that the title to real estate is in issue. Paine et al. v. The Lake Erie & Louisville R. R. Co....... 283 3. Pleading.-Answer.-Costs.-In a suit to enforce the entering of satisfaction of a mortgage, a party de-. fendant against whom no relief is sought, but who is made a defendant merely to answer as to his pretended interest in the subject-matter of the suit, must file an affirmative answer if relief is sought by him. The general denial by such a party puts the plaintiff to such proof as will place NEGLIGENCE. See RAILROAD, 5, 6, 9, 10, 11. Railroad.- Pleading.-Where the owner of a quantity of cord-wood deposits the same at a certain place near a railroad track, in accordance with the direction of an agent of the railroad company and under an agreement with such agent by which it is to become the property of the railroad company when measured and paid for by the company, but until so measured and paid for to remain the property of such owner, and while so remaining his property it is consumed by fire originating from a locomotive engine in the use of the company and caused by the negligence of the employees of the company, and these facts are averred in the complaint in a suit by such owner against the company to recover the value of the wood; it is not necessary to allege also the destruction of the wood without the fault or negligence of the plaintiff. The Indianapolis & Cin. R. R. Co.v. Paramore..... ........143 2. Same.-Burden of Proof.-It is the duty of a railroad company to use machinery properly constructed with a view to prevent fire from being communicated to property lawfully placed by the owner thereof near the railroad track, and the engines should be operated with care and skill to the same end. If fire is communicated to such property from an engine by reason of a failure to use proper preventives, or by the carelessness of employees, the company is liable for the consequences; but negligence in either respect should not be inferred without proof, the burden of which rests on the party alleging it......... .... Ibid. 3. Same.- Watchman.-The railroad 6. and control of said owner, who should examine for himself all the means used in loading and unloading, to see that they were of sufficient strength, of the right kind, and in good repair and order; that each person riding free to take care and charge of said stock should do so at his own risk of personal injury from whatever cause; and that the owner should release and hold harmless, and keep indemnified, the railroad company, from all damages, actions, claims, and suits, on account of any and every injury, loss, and damage heretofore referred to, if any should occur or happen. Suit against the railroad company to recover for certain animals shipped by the plaintiff, under this contract, and lost, while in course of transportation, by escaping through a window open in the end of the car in which they had been loaded by the plaintiff's agent, who accompanied them on the route, and who, after the escape of one of the animals, told the conductor to fix said window, and the conductor not do-ing so, fixed it himself. liable for the loss......... company is not bound to provide a watchman to protect property so placed by the owner, at his own instance, without any contract with the company, in danger of taking fire by unavoidable accident from the engines used by the company..... .......... Ibid. 4. Common Carrier.-Special Contract. A common carrier cannot contract against liability for loss from his own ordinary negligence. Such a condition is void as against public policy. The Ind'polis, Pittsburg, & Cleveland R. R. Co. v. Allen......394 5. Same.-A contract for the shipment of live stock by a railroad company provided, that, in consid-Held, that the railroad company was cration of a certain reduced rate of transportation, the owner of said stock should assume all risks of injuries which the animals or either of them might receive in conscquence of any of them being wild, unruly, vicious, weak, escaping, maiming and killing themselves or cach other, or from delays, or in consequence of heat, suffocation, or the ill effects of being crowded upon the cars of said company, or on account of being injured by the burning of hay, straw, or any other material used by the owner in feeding the stock, or otherwise, and any damage occasioned thereby, and also all risk of any loss or damage which might be sustained by reason of any delay, or from any other cause or thing in or incident to, or from, or in, the loading or unloading of said stock; that said owner should load and unload said stock at his own risk, the railroad company furnishing the necessary la- 7. borers to assist, under the direction VOL. XXXI-36 Ibid. Railroad.—Injury to Passenger.- A railroad train ran beyond the platform for landing passengers at a certain station, and stopped over a culvert, and the proper servants of the railroad company announced the name of the station, as a notification to the passengers for that station that the train was there; whereupon a passenger for that station, who had paid the company the fare demanded of him, relying on the good faith of the company, alighted upon and into said culvert, without his fault or negligence, supposing he was alight-ing upon said platform, it being at night and so dark that he could not see that the train had not stopped at said platform; whereby he was. greatly injured. Held, that the company was liable for the injury so received. The Columbus and Indianapolis Central Railway · Co. v. Farrell........................408. Same.-A railroad company is not legally responsible for the action of persons not its servants in falsely NEW PARTY. Sec PRACTICE, 16, 17, 18. NEW TRIAL. See WITNESS, 2. 1. As of Right.-The form of the Held, that the plaintiff was entitled to 3. costs Ibid. Weight of Evidence.-Where there 8. Motion for New Trial.-Filing of 9. 249 Same.-Finding Beyond the Issue.— Held, that the motion for a new trial Held, also, that the question could not NOLLE PROSEQUI. County Clerk.-Fees where Nolle Pros- NOTE. See PROMISSORY NOTE. NOTICE. See RAILROAD, 11. OFFICE AND OFFICER. See JUSTIFICATION, 1, 2, 3. Of mechanic's lien, reformation of. See 1. County Clerk.-Deputy-Compen MECHANIC'S LIEN, 1. 2. Same. In a complaint to enjoin the obstructing of a public highway, the only averments connecting the plaintiffs with the highway were, "that it is their usual, convenient, and necessary route of travel from their houses, which are all on, or in the vicinity of, the road, to their market town and usual place of business; and that without greater or less circuity, when the road is so obstructed, they and cach of them have no other means, nor have the public wishing to use the road, of going to and fro, as they have a right to do, for business, comfort, and pleasure." Held, that the complaint was bad on demurrer ..Ibid. OBSTRUCTION OF HIGHWAY, See HIGHWAY, 1, 2; CRIMINAL LAW, 3; NUISANCE, 1, 2. OBTAINING GOODS BY FALSE PRETENSE. See CRIMINAL Law, 11, 48 to 54. OBTAINING SIGNATURE BY FALSE PRETENSE. See CRIMINAL LAW, 48 to 54. sation of-A county clerk may contract with his deputy that the latter for his compensation shall have a certain share of the fees taxed and collectable in the clerk's office during his deputyship. Check et al. v. Tilley 121 2. Injunction.-Receiver.-In a suit by such deputy against his principal to recover the former's share of such fees, an injunction may be granted, pending the cause, restraining the clerk from collecting or transferring such fees yet unpaid, and the sheriff' from paying such fees collected by him to the clerk; and a receiver may be appointed..... .Ibid. Vacancy.-County Auditor.-Statute Construed.-Where a vacancy in the office of county auditor is filled by appointment, and a successor is elected at the next general election, such successor is entitled, by section 4 of the act of May 13th, 1852 (1 G. & H. 671), to take the office as soon after his election as he shall have qualified. Douglass v. The State, ex rel. Wright...... 3. 4. 5. ...429 Usurpation.- Damages.— Measure of. If such appointee refuses to surrender the office upon the demand of such qualified successor, the latter is entiled to recover from the former the gross emoluments of the office received by him while so unlawfully withholding the office. Ibid. Same. At the October election, 1863, A. was elected auditor of a certain county, was commissioned, and, having duly qualified, went into said office November 1st, 1863. He resigned in December, 1866, and B. was appointed by the board of county commissioners to fill the vacancy. At the October election, 1867, C. was elected to fill the office, and was subsequently commissined for four years from the 1st of November, 1867; and, having duly qualified, on the 11th of November, 1867, he demanded of B. possession of the office, its records, &c., which B. refused to surrender, claiming the right to hold till the first Monday of March, 1868. Information under the statute, PARTIES. See CoNSIDERATION, 1; CONTRACT, 87 on the relation of C. against B., Held, also, that B. was not entitled to Held, also, that section 1 of the act of Held, also, that, in such a case as this, said act of March 3d, 1855, is not in conflict with section 2 of article 6 of the State Constitution. Howard v. The State, 10 Ind. 99, explained. Ibid. OFFICIAL BOND. See ESTOPPEL, 2 to 5; PRINCIPAL AND ONUS PROBANDI. See INSANITY, 4; NEGLIGENCE, 2; TRUST, 8; VOLUNTARY CONVEYANCE, 2. OVERRULED CASES. See CASES OVERRULED, AFFIRMED, &C. P PARENT AND CHILD. See VOLUNTARY CONVEYANCE, 2, 3. 3. 4. Promissory Note.-Party Plaintiff. It is not necessary that the plaintiff in a suit upon a promissory note should be the legal owner thereof;it is sufficient if he be the equitable owner. Compton v. Davidson et al.62 Decedents' Estates.-The heirs at law of a decedent against whose estate it appears there exists any debts cannot maintain an action for mon ey due the estate. Walpole's Adm. v. Bishop et al.......... ........156 Same.Suit by the heirs at law of A. against the administrator of B., to recover money collected by B. in his lifetime, as attorney of A. The complaint alleged, that, in the same year that A. died, an administrator of his estate was appointed, who six years afterwards resigned his trust; that no assets ever came to his hands; that no claims against A.'s estate were ever filed in court; that no other administrator of A.'s estate was ev er appointed; that the widow of A. paid all the claims that were presented or that she knew existed against his estate, and fully administered the same years before. Held, that these plaintiffs could not maintain the action............... Ibid. Plaintiff.—Agent.—One who contracts merely as the agent of another, and has no personal interest in the contract, is not the trustee of an express trust within the meaning of the statute, and cannot, under the code, sue on such contract in his own name. (Code, secs. 3, 4.) Rawlings v. Fuller... 5. Practice.-Admission of New Party.-Complaint on a note and mortgage, the plaintiffs claiming to be the surviving partners of a late firm named. Before any further pleadings had been filed, another person filed a petition, alleging, that he was a member of said late firm to which the note in suit was payable, and as such had an interest; and praying to be made a party plaintiff; and the court so ordered. Held, the facts alleged in the petition being undisputed, that there was no ..255 |