Compton

..62

4.

1. Pleading.-Bastardy.—It is not a good defense to a suit upon a promissory note given in compromise of a prosecution against the maker for bastardy, "that it was understood that if the child should be born too soon, or the circumstances would not make out a case of bastardy, the note was to be delivered up, and that the child was born eight months from the time the defendant first met the prosecuting witness;" nor is it a good answer, "that the defendant has since learned that he could prove he was not the father, but could not make such proof at the date of the compromise." v. Davidson et al... 2. 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 is the equitable owner............Ibid. 3. Principal and Surety.-Co-Surety.Alteration of Writing.-A promissory note payable to and at a certain bank was signed by A. and B., the former being the maker and the latter his surety, and delivered by A., for a valuable consideration, to C., who, for the purpose of having it discounted for his benefit at said bank, it having been prepared by A. and B. with that expectation, signed the note as maker, without the knowledge or consent of B., upon the requirement of the officers of 6. the bank, but with the express agree

5.

cution for his benefit on said judgment against A. and B., and, A. having become insolvent, such execution was properly levied for the whole amount thereof upon the property of B. Bowser et al. v. Rendell. ..........128

Pleading.—Abatement.—Decedents' Estates. Where the assignee of a promissory note, to whom it has been indorsed in blank by the payee, dies, intestate, and, there being no administration upon his estate, his widow, the note not having been made her property, assigns and indorses it in blank, and, the intestate having been largely indebted at the time of his death, his debts remain unpaid; or where, in addition to these facts, the maker holds a claim against the estate of the decedent, which in a suit by his administrator would be a proper set-off; in an action against the maker by one to whom the assignee of the widow has indorsed the note in blank, upon the note as if indorsed by the payce to the plaintiff, an answer, verified by affidavit, setting forth these facts and praying that the suit abate is good on demurrer. Stebbins v. Goldthwait et al......

........159 Same.-General Denial.-An answer of general denial not sworn to would not, under our code, put the plaintiff upon proof of the genuineness of the indorsement as shown by the complaint, or admit evidence of the facts set up in such answer in abatement .... ..........Ibid. Corporation.-Party Plaintiff.-A

1. Fences. Where a railroad passes upon an embankment erected in the bed of a canal, such embankment must be guarded by fences. The White Water Valley R. R. Co. v. Quick

.127

2. Negligence.-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

3. 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

4.

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.

Same.- Watchman.-The railroad 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. 5. Negligence.-Liability for Injury to Employee.-Suit by an adminis trator, for the benefit of the children and heirs at law of the deceased, against a railroad company, the complaint alleging, that the decedent had been in the employment of the defendant as fireman on a freight engine for about two months. when, or a day mentioned, he was ordered by defendant to serve as fireman on a particular engine attached to an express passenger train, then running on said road between certain points named; that said engine "was old and rickety, with a weak, defective, patched up, and leaky boiler," which was not strong enough to endure a high pressure of steam, and could not be used with safety in drawing a train of any kind, and that its use to an express train, in its weak and unsafe condition, involved great peril to the lives of the passengers and employees; that the deceased did not know, and had no means of knowing, the weak and unsafe condition of said engine when he was placed upon it as fireman; that defendant, with full knowledge of the defective and unsafe condition thereof, carelessly and negligently caused the same to used in drawing said express train; that on the same day the boiler exploded, by reason of its defective and unsound condition, and caused the death of the decedent, without any negli gence or fault on his part.

6.

Held, that the complaint was good on
demurrer. Columbus & I. C. Rail-
way Co. v. Arnold, Adm'r.........174
Same.-Master and Servant.-An
employer or master is not liable, in
the absence of an express contract to
that effect, for injuries suffered by one
of his employees solely through the
carelessness or negligence of anoth-
er employee of the same master, en-
gaged in the same general business.
Nor is the master rendered liable by
the fact that the employee receiving
the injury is inferior in grade of em-
ployment to the one by whose neg-
ligence the injury is caused, if the
services of each in his particular
sphere or department are directed to
the accomplishment of the same gen-
cral end. Gillenwater v. The M. &
I. R. R. Co., 5 Ind. 339, and Fitz-
patrick v. The N. A. & S. R. R. Co.,
7. Ind 436, disapproved... ....Ibid.

7.

8.

Board of Directors.-The board of
directors of a railroad company are
its immediate representatives and
occupy the relation of master to the
various employees engaged in oper-
ating the road and superintending
and performing the business of the
company in its various depart-
ments......
....Ibid.
Master-Machinist-A master-ma-
chinist who has the immediate
charge, control, and direction, of the
engines and other machinery of a
railroad company, and the repairs
thereof, and the control and direc-
tion of the engineers and firemen
on the trains, is a fellow-servant of
such a fireman.....
Ibid.
9. Responsibility to Employee.-The
principle of respondeat superior does
not apply as between a railroad
company and its employces, and the
company can only be held responsi-
ble to the employee injured without
his own fault, while in the discharge
of his duty, where the injury is
caused by the negligence or failure
of the board of directors to perform
some duty devolved upon them by
express contract with the employee,
or which is implied from their rela-
tion of master to the employee. Ibid.
10. Same.-Implied Duties.-It is the
duty of a railroad corporation to
use every reasonable care in the

VOL. XXXI-37

proper construction of its road, in
supplying it with the necessary
equipment, including properly con-
structed engines, and the necessary
and proper materials for its repair,
and in the selection of competent,
skilful, and trusty subordinates to
supervise, inspect, repair, and regu-
late the machinery, and to regulate
and control the operations of the
road. If these duties are performed
with care and diligence by the di-
rectors, and one of the persons so
employed is guilty of negligence,
by which an injury occurs to an-
other employee, it is not the negli-
gence of the directors, or master,
and the company is not responsi-
ble......
.....Ibid.
11. Same.- Notice.- Where the di--
rectors have performed these duties,
and have placed the engines of the
company under the immediate
charge, control, and direction of a
competent and trusworthy master-
machinist, and have furnished him
with adequate materials and resour-
ces for their repair, notice to the
directors that an engine is out of
repair and unsafe for use is not, in
the absence of notice that is being
so used, sufficient to render the com-
pany liable for an injury to a fire-
man employed by the company,
while in the performance of his duty
upon such engine under the direc-
tion of the master-machinist, caused
by the explosion of the boiler, by
reason of its defective condition,
without his fault or negligence or
the fault or negligence of the engi-
neer in charge...... .......Ibid.

12.

Injury to Animals.- Fences.-
Where an animal was killed by the
cars of a railroad company at a
point where the road was securely
fenced to within ten feet, on one
side of the track, and within twenty
steps on the other, of a public cross-
ing, "but the fences did not extend to
the cattle-guard at the public cross-
ing; if they did it would stop the
cattle from going on the track;"
Held, that the company was not re-
lieved from liability by the fact that
the road was securely fenced at the
point where the animal was killed.
The Jeff, Mad., & Ind'polis R. R.
Co. v. Avery.
.........277:

REDEMPTION.

See SCHOOL LANDS.

REFEREE.

See CONSIDERATION, 6.
RELATION.

See INDIAN TREATY.

RELEASE.

See CONTRACT, 8, 9, 10.

Of surety. See PRINCIPAL AND SURETY,
1, 2.

Joint Debtors.-A. held a judgment
against B. and C. for a

certain

amount; B. paid half the amount,
and thereupon A. executed to him a
written instrument wherein A. cov-
enanted that he would thenceforth
"pursue the legal and equitable rem-
edy on said judgment against C.
alone, and not against B., looking to
C. alone for the full and final pay-
ment and satisfaction of said judg-
ment, without, however, intending
to prejudice or interfere with the
rights and liabilities of said B. and
C. to cach other on account of said
judgment."

Held, that this instrument did not op-
erate as a release of C. from liabil-
ity upon the judgment. Aylesworth
et al. v. Brown et al.................270
REMEDY.

made default in the payment of in-
terest on purchase money, the lands
were resold. By the law in force at
the time of his purchase, a default-
ing purchaser had a right to redeem
within one year after sale; by that
in force at the time of the resale and
at the time of the default, a delin-
quent purchaser could redeem at
any time before sale, but not after.
Held, that the right to redeem was
governed by the latter law...... Ibid.

REPLEVIN.

See HUSBAND AND WIFE, 14.

1. Affidavit.-In an action of replevin
in the court of common pleas, the
affidavit of the plaintiff for delivery
of the property to him did not state
whether or not it had been seized
under an attachment against his
property.

Held, that the affidavit was bad.
Bridges v. Layman et al............384

2.

House Treated as Personalty.—
Trust.-A., being the owner of a
certain town lot on which was a
dwelling house, built another house
adjoining the former and perma-
nently attached thereto, but stand-
ing in a street of the town, though
he supposed that it was upon a lot.
Becoming financially embarrassed,
he fled the country; and an execu-
tion 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. Af-
terwards, 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. there-
upon wrote to A., stating the prop-
osition 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 prop-
erty 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