The Pittsburgh, Cincinnati, and St. Louis Railway Company v. Kain. The evidence clearly enough shows the killing of the horse by the Chicago, Columbus, and Indiana Central Railway Company, in the county mentioned, at a point where her road was not fenced; but it entirely fails to show the consolidation charged. It shows, on the contrary, that the defendant is the lessee of the road-bed, rolling machinery, effects, and franchises of the Chicago, Columbus, and Indiana Central Railway Company, and is running and operating the same. The horse was killed before the making of the lease, and while the road was being operated by the lessor. Under these circumstances the finding cannot be sustained. Besides the variance between the proof and the allegation in respect to the relation of one company to the other, which perhaps might have been amended below and be deemed amended here, were there no other objection to the recovery, there is the fatal objection that the proof does not make a case that fixes any liability upon the defendant. On general principles of law, the defendant cannot, by taking a lease of the road-bed, machinery, franchises and effects of the Chicago, Columbus, and Indiana Central Railway Company, become liable for the torts of the latter company committed before the lease. Nor do we think the statute on the subject of killing animals by railroad companies (3) Ind. Stat. 413) fixes upon the lessee any liability for animals killed by the lessor before the execution of the lease. The judgment below is reversed, with costs, and the cause remanded for a new trial. E. Walker, for appellant. Bledsoe and Others v. Irvin. 35 293 142 557 35 293 160 117 BLEDSOE and Others, v. IRVIN. PLEADING-Abatement.—In a suit on a joint contract, all the makers thereof must be joined as parties defendants, and the failure of the plaintiff to join any one is cause of demurrer, if it appear on the face of the complaint; if it does not so appear, it may be taken advantage of by plea in abatement. SAME-Plea in Abatement.—It is not necessary that a plea in abatement should show in what manner a joint maker of a contract became a maker. APPEAL from Bartholomew Common Pleas. BUSKIRK, J.-The action in the Common Pleas Court of Bartholomew county, from which this appeal was taken, was to obtain judgment on a note, and to foreclose a mortgage given to secure the same. The only question arising in the case is upon the sustaining of a demurrer by the court below to the answer in abatement. The note upon which the action was brought was signed as follows: "L. S. Bledsoe, E. H. Cox & Co., Samuel Stuckey." The answer in abatement above referred to, was as follows, after entitling the cause, viz.: "Defendants, for answer in abatement herein, say that plaintiffs ought not to maintain said action, because, they say that the said note in said declaration mentioned (if any such was made), was made by one Elizabeth Kinney jointly with said defendants, and not by said defendants alone, and that said Elizabeth Kinney is still living, to wit, at said county of Bartholomew, State of Indiana; wherefore, because said Elizabeth Kinney is not named in said complaint, nor made a party defendant in this action, they pray judgment herein that said action abate. L. S. BLEDSOE. (Signed,) Subscribed and sworn to March 22d, 1869. G. W. RICHARDSON, N. P. To this a demurrer was filed, for the alleged reason that it did not state facts sufficient to constitute a defense. This error we think is fatal to the judgment below. The note on its face is a joint note. At common law, all makers of a Bledsoe and Others v. Irvin. joint contract must have been joined as partics defendants, and the failure of plaintiff to join any one was cause of demurrer, if it appeared in the complaint, and of plea in abatement if it did not so appear. Such was the uniform ruling of this court; Bragg v. Wetzel, 5 Blackf. 95; Dillon v. The State Bank, 6 Blackf. 5; Wilson v. The State, 6 Blackf. 212, and authorities cited in the last two cases; Gilman v. Rives, 10 Pet. 298. Nor has the code changed the rule. 2 G. & H. 46, sec. 18'; id. 79, clause 4, and note thereto. Even if this case were to be considered as embraced within the principle laid down in Goodnight v. Goar, 30 Ind. 418, that "the code seems to have re-enacted the rules which prevailed in courts of equity, as to who must join as plaintiffs, and may be joined as defendants," still the plea in abatement in this action, under equitable rules, was good. The answer was pleaded by all the defendants who had been summoned, including Stuckey, whom the record shows to have been a surety on the note. As such he had rights over against all the other makers of the note, in the event of his having anything to pay thereon; and in all cases of that character, it is said to be the rule in equity, that all parties so consequentially liable, must be brought before the court. 1 Daniell's Ch. Prac. 329. And in accordance with this principle, is the decision of Hardy v. Blazer, 29 Ind. 226, and also in Braxton v. The State, 25 Ind. 82. But it is insisted by the appellee, that the ruling of the court was not erroneous, for the reason that the plea in abatement was defective in not showing how and in what manner Elizabeth Kinney had become a maker of the said note. The plea alleged that she was a joint maker of the note, and the demurrer admitted that this was true. Pleadings should contain facts and not evidence. We think the court erred in sustaining the demurrer to the plea in abatement. The judgment is reversed, with costs; and the cause is remanded, with directions to the court below to overrule the Porter and Another v. Silvers. demurrer to the plea in abatement, and for further proceedings not inconsistent with this opinion. R. Hill and G. W. Richardson, for appellants. PORTER and Another v. SILVERS. PRACTICE.-Assignment of Error.-Motion to Strike Out.-The refusal of the court to strike out a portion of a paragraph of pleading cannot be assigned for error. SAME.-Demurrer.-Where a demurrer is not set out in the record, no question with reference to a ruling upon it can be presented in the Supreme Court. PLEADING—A judgment will not be reversed on account of the improper sustaining of a demurrer to a paragraph, or to several paragraphs, of an answer, when the same matter is admissible in evidence under the remaining paragraphs of the answer. AGENT.-Commissions.-If an agent does not perform his duties, or is guilty of gross negligence, or gross misconduct, or gross unskilfulness, he not only becomes liable to his principal for the damages the latter may have sustained, but he also forfeits all claims to commissions. APPEAL from the Howard Circuit Court. DOWNEY, C. J.-Silvers sued Porter & Mills, who were real estate agents, to compel them to account for the proceeds of real estate belonging to him, which they had sold under his employment. The complaint contains two special paragraphs, and also a paragraph for money had and received. The defendants moved the court to strike out parts of the first and second paragraphs of the complaint, which motion was overruled, and this is assigned as the first error. But there was no proper exception to this ruling of the court, and we cannot, therefore, re-examine it. See Miller v. Deaver, 30 Ind. 371, where it is held that this cannot be assigned for error. There Porter and Another v. Silvers. was a demurrer by the defendants to each paragraph of the complaint, which was overruled, and this is the second error complained of. But this demurrer is not set out in the record, and therefore there is no question before us with reference to it. The defendants then answered in four paragraphs. A demurrer was sustained by the court to the second and third, and overruled as to the fourth; and this action of the court constitutes the ground of the third assignment of error. We do not see any good objection to the second or third paragraph of the answer, but we think the same matter set up in these paragraphs was admissible either under the general denial or under the fourth paragraph of the answer, on which issue was taken by general denial, and was actually admitted and considered under these issues. This court will not reverse a judgment on account of the improper sustaining of a demurrer to a paragraph, or to several paragraphs, of an answer, where the same matter is admissible under the remaining paragraphs of the answer. The fourth alleged error is the refusal of the court to grant a new trial, on the ground that the evidence is insufficient to sustain the verdict. There were two theories of the case; each party sustained his own theory in the pleadings and by his evidence. The court, in what seems to us to have been a full and fair examination of the facts of the case, adopted the theory of the plaintiff, and found for him, refusing to set aside the finding on a motion for a new trial. It is contended by counsel for the appellants, among other things, that the amount of the judgment is too large. But if the jury added interest to the amount of their finding, which they might do if they thought proper to do so, the amount is not too large, even after deducting the compensation which the plaintiff testified the defendants were to receive. If no allowance for services had been made by the court, we are not prepared to say that the judgment should have been reversed on that account. If an agent does not per |