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and refused: “If, at the time deceased scribe and pay for stock in a railroad
* was killed, it was his duty to be en- company. John v. The C. R. Ev F.
gaged upon the track at that place, W. R. Co. et al........

and he might have seen the approach | 10. Same.—The act, approved My
of the train by exercise of reason- 12th, 1869, “to authorize aid to the
able care, as by looking up, then the construction of railroads, by ccunties
failure to do so, if he did so fail, was and townships taking stock in,' &C..
negligence on his part; and if such contemplates a payment for stock at
ncgligence contributed to his injury, the time of subscription, and not the
then the jury should find for the de- creation of a debt therefor, and is

constitutional........ ...... lbid.
Held, that there was no error in this

Ileld, also, that this evidence was suffi-

cient tɔ sustain a finding against the
railway company. The 1. B. & W.

R. W. Co. v. Carr, Adm'r .........

7. Action against two Companies for Restriction of.-A grantor of real estate

Stock Killed.—Where a complaint may limit or restrict the power of
against two railroad corporations alienation for a period of time, but
charged that “the defendants, by an absolute prohibition is void. An.
their locomotive and cars then by drews v. Spurlin et al............... 262
them run upon their road, at said
county and State, run over and upon REAL PROPERTY, RECOVERY
one colt belonging to the plaintiff,"

Ile!!!, that regarding the action as in 1. Unlawful Detention of Lands.-

the nature of a tort, it was sufficient Complaint.-In an action to recover
to charge that the act was done by the possession of real estate, the com-
the defendants, without showing plaint must describe the real estate
what relation they sustained to each with reasonable certainty. Leary r.
other, and a recovery might be had Langsdale.....

against the one shown by the evi- 2. Practice. Motion in Arrest of
dence to be liable; or that there Judgment.--A complaint in an ac-
might under the statute be a joint or tion to recover the possession of
several liability of the defendants as real estate which does not designate
lessees, assignees, receivers, or as the county and State in which the
running or controlling a railroad. land is situated, is bad on a motion
The I. C. & L. R. R. Co. v. Iar- in arrest. This defect is not cured
-515 by answer..........

8. Track Along Street - Where a rail-
road company has not the exclusive

right of way, as where a railroad
runs along, instead of across, a street See FUGITIVE FROM JUSTICE, 2.
or alley, and where others as well as
the company have the right to pass Form of:- In a criminal proceeding on
in or along such street or alley, the appeal from a justice of the peace,
company under such circumstances a bond conditioned that the desend.
cannot legally construct fences or ant “shall prosecute his appeal to
cattle-guards on or along its track, final judgment, and pay such jedg.
and is only liable for killing stock at ment as may be rendered against him
such point on its track when guilty on such appeal,” is a good recogni-
of negligence....

........ Ibid. zance, although imprisonment may
9. Constitutional Law. Subscriptions be a part of the punishment pro-

to Railroads.- Townships.- Taxes, vided. Olt v. The State. ....... 365
The State may make internal im-
provements, directly, or by a corpo-

ration, and for that purpose, levy
and collect taxes, or empower coun- See SUPREME COURT, 6; DEPOSITION;
ties and townships to do so and sub- PRACTICE, 7.



manner as a trial by the court. The Answers oy Jury to Interrogato- may be required to state the facis ries. The answers to interrogatories

and conclusions of law separately; made by a jury discharged without otherwise they may render a general agreeing form no part of the record. finding

Ibid. Leffel v. Leffil.......... ......76 5. Same.- Report of Referecs.—The 2. Bill of Exceptions.--Where there report of referees stands as a general

is an appearance to an action, the finding by a court, or as the special summons and return are no part of verdict of a jury, and the finding in the record unless made so by a bill the one case, and the verdict in the of exceptions; but where there is no other, must be followed by a judgappearance to an action, the sum- ment thereon, or they will amount to mons and return are properly a part nothing .........

....... Ibid. of the record. The Fiff. Mad. Eu Ind' polis R. R. Co. v. Ross et al... IOS

REPLEVIN BAIL. 3. Affidavits.Bill of Exceptions.

See FRAUD, 3, 4. Affidavits filed during the progress

S of a cause can only be made a part of the record by a bill of exceptions.

Blizzard v. Phebus ...... ........284


1. Pleading:--Complaint.—Complaint

by A, against B., alleging that A. Party.–To cut off the right of an sold and delivered to B. a certain

owner of an equity of redemption quantity of wheat, on the 31st day to redeem, he must be made a of August, 1867, and B. agreed to party to the suit to foreclose. (Pet- pay A. within twelve cents per bushel TIT, C. J., dissents, holding that the of the Cincinnati market price, to be statute of June 4th, 1861, takes determined by the Cincinnati papers away all rights to redeem except at any time which A. might select, as provided in that statute.) Cox v. within one year from the delivery of Vickers et al.

the wheat; that on the 28th day of

April, 1868, A. notified B. that he REFEREES.

would on that day take the price of

said wheat as per Cincinnati papers Trial by Referees. — Before thero of that date; that wheat was worth can be a reference for trial, there in Cincinnati on that day $2.70 per must be an action pending; and there bushel; and that A. fixed the price can be no action pending unless on that day and demanded the pay there are adversary parties. Gilmore therefor, but B. refused, &c. v. B'd of Com’rs of Putnam Co..344 Teld, that the complaint was good.

Action - The filing of a claim Jones et al. v. Cook....... .....175 against a county before the Board of 2. Contract.-B. received of A., in Commissioners does not constitute November, 1864, a certain number an action, and there can, in such of sheep, on the following terms, set

case, be no reference for trial... Ibid. out in a written contract: B. to give 3. Arbitration.-Reference.—The ap- annually one pound and a half of

pointment of a committee by the wool per head, sheared from said Board of County Commissioners, to sheep and delivered by the 15th day examine the books and accounts of a of June, and pay, on or before the county treasurer who presents a claim ist day of July, 1868, four dollars for services, and to report whether and fifty cents per head for the sheep. there is any money due the treasurer, If the annual amount of wool was does not amount to a submission to not delivered, the principal sum, as arbitrators or a reference to referees, well as the wool, should be due at and the report of a committee so ap- the end of the year, and the above pointed is not binding, either upon amount of wool should be paid

the county or the claimant....... Ibid. yearly until the contract was fulfilled. 4. Trial by Referees. — A trial by Complaint by A. against B. on the

referees is conducted in the same contract, alleging that B., in August,

....... 27



1865, delivered on the contract a guage of a deed was as follows:“1.,
certain quantity of wool, being the and B., his wife, convey and warrant
amount ihat was due in June, 1865, to C. her lifetime, and after her
and something over, and that no death to descend to the heirs of her
wool was delivered for the year body," certain real estate. “The
1866 or 1867, thereby rendering the said C., in consideration of this deed,
contract due as ta principal and wool. receipts and forever quitclaims to any
The complaint of A. was filed July further interest in and to her father's
24th, 1867.

real estate whatever, and that a trans-
B. answered, that the sheep were affect- fer of said real estate by C. shall in

ed with a contagious disease when no wise be valid.”
he received them, and one half of Held, that the deed conveyed a fee
them died of said disease, without simple absolute to the grantee.
his fault, before the shearing season Hell, also, that the grantee possessed
in 1865, and the residue before the the right of alienation, and that an
shearing season in 1866, and that the alienation by her completely cut off
wool delivered was all that was ever all her heirs.........

sheared from the sheep.

Held, that by the contract, the property
in the sheep passed to B., and they

were thenceforth at his risk, and
their death did not excuse him from

1. Irregularities.-Evidence.-A. sued
delivering the wool; and on failure

B. for the recovery of real estate and
to deliver it, A. could maintain his

damages for its detention. The right
suit for the price of the sheep and

of A. to recover depended on whether

a sheriff's sale and conveyance to
for the wool not delivered. Smith
et al. v. Dallas et al.................. 255

him was valid, he not being the judg-
3. Pleading:- Answer.- Warranty: --

ment-plaintiff or chargeable with
An answer setting up a warranty

notice of any irregularities in the

sale. A. introduced the judgments,
made by parol at the time of entering

executions, and sheriff's deed, and
into a written contract for the sale of

proved payment of purchase-money
the property warranted, and alleging
that it was also at the same time

and his damages, and rested. B.
agreed by parol that the warranty

offered to prove that the sheriti
should not be inserted in the written

omitted to post notices of the sale
contract, is bad..............

in the township where the real estate

is situated, and that the property
4. Evidence.—Evidence that at the
time of the contract it was agreed

sold for only one-half its cash value.

The court refused to admit the clin
that B. might sublet the sheep if he

desired, upon the same terms, and
whe: sublet he was to be credited for Tield, that the evidence was properly

excluded. White et al. v. Cronk.
the same, and that he did thus sublet


some of the sheep, is at variance

Same. Instruction. The court
with the written contract and inad-

charged the jury, “If you find that
...... Ibid.

the judgments, and executions, an. 1
5. Warranty.--If a sale of property

the sheriff's deed are valid, and they
is complete and perfect, by the terms

are if nothing contrary appears, you
of a written contract of sale, a sub-
sequent warranty is yoid, unless some cht, that this instruction stated the

ought to find for the plaintiff.”
new consideration be given to sup-

law ....................

.. lbid.
port it. Summers et al. v. Vaughan
et al..........



.... Ibid.



See WILL, I.
The rule in Shelley's case is the
law and a rule of property in this

State. Andrews v. Spurlin et al..262
2. Deed. - Construction. The lan-


1. Volunteer Soldier.-Credit to Town.

ship.-Evidence.- Where the ques-
tion submitted to the jury was, whe-
ther a person entering the military
service of the United States, under a
call for volunteers, had been credited
to a particular township;



Helil, that the muster-roll containing withholds the remedy for its enforce.

his name as a resident of that town- mcnt. Mather v. Scoles............
ship was not sufficient evidence of 2. l'erbal Contract to Convey Real
the fact that such township had re- Estate.-A complaint upon a verbal
ceivel the credit. Druly v. agreement to convey real estate, not

•507 showing part performance, or that
2. Same.--Bounty.-- Collateral Pro- the defendant fraudulently refused to

mise.-An instruction to the jury, reduce the contract to writing, is bad.
that where one promised to guaran-

tee or warrant the pay to a volunteer 3 Part Performance.- Payment of
which had been promised to be paid purchase-money is not such a part
by a public meeting, his promise was performance as will take a case out
only collateral and not binding on of the statute of frauds............ Ibid.
him unless in writing, was held 4. Alternative Contract.- A parol
proper in a case, where if the evi.

agreement in the alternative, to con-
dence showed any contract, it had a vey land, or, in case of failure to
tendency to show that it was thus convey, to pay a certain sum of mon-

..Ibid. ey, is within the statute of frauds,

and no action, either to compel a per-

formance or to recover money, can

be maintained upon it............. Ibid.
1. Where the court upon request finds
the facts specially, and there is no

cxception to the conclusions drawn
upon the facts found, no question in See CONTRIBUTION, 2; War, 13 to 17.
regard to said conclusions is present-
ed for the consideration of the Su. Pleading.-Demurrer.- When a stat-

ute of limitations contains no excep-
preme Court. B'd of Com’rs of La-

tions, and it appears upon the face of
grange Co. v. Newman......
Exception.—Where the court finds

the complaint that the action is barred,

the bar can be taken advantage of
the facts specially, and states the con-
clusions of law thereon, an exception

by demurrer; but where there are ex-
to the finding will not raise the ques-

ceptions, the statute must be pleaded
tion of the correctness of said con.

by answer. Perkins v. Rogers.. 124
clusions;-exception must be taken
to said conclusions, or no question

thercon can be presented on appeal.

Sce RECORD, 2.
Leffel v. Lefsel...... .........76

3. Same.- Where there is a special

finding of facts by the court, without Sce DEPOSITION; DIVORCE, I; Evi-
any conclusions of law being found,

and with no exception entered to the

ING, I, 2.
decision, in accordance with 341 of Assignment of Error. See THE STATE
the code, no question can be raised 1'. ECHERT, 283.
upon the finding as a special finding
under said section 341. The O. & 1. Agreement 10 Submit Questions not
M. R. R. Co. v. Hays..............173 Presented by the Record.— Parties

cannot by agreement submit for the
SPECIFIC PERFORMANCE. consideration of this court any ques.

tion not presented by the record.
S'C PLEADING, 1, 2; VENDOR AND PUR- Board of Comm’rs Lagrange Co. v.


2. Judgment.—Where the evidence

is in the form of an agreed state-

ment of facts, and there is no reason

for another trial, the Supreme Court
Colluteral promise. See SOLDIER, 2. will pronounce judgment without

remanding the case for trial. City of
1. The statute of frauds does not Fiffersonville v. Ferryboat John

make a contract void, but simply Shallcross ct al...........

to 4


3. Question of Law Reserved.-When
a question of law is reserved under
section 347 of the code, and the evi-
dence is not in the record, this court
cannot say that the verdict is sus-
tained by the evidence, and that the
giving of an erroneous instruction,
which in effect excluded from the
jury the principal ground of defense,
resulted in no injury. Bissell v.



4. Refusal to Instruct Fury.-Where
the jury are discharged without
agreeing, and a second trial had, the
refusal of the court to give instruc-
tions upon the first trial cannot be
assigned as error. Leffel v. Leffel...76
5. 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. Porter et al. v.
6. 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.

7. Pleading-A judgment will not
be reversed on account of the im-
proper 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.
8. Evidence.-A judgment will not
be reversed upon the weight of evi-
dence, where there is a conflict, and
there is evidence, which, if believed,
will support the verdict. Richard-
son v. Reed et al.
9. Excessive Damages.-A judgment
will not be disturbed on the ground
that the damages are excessive, if
there is a conflict in the evidence,
and there may be an honest differ-
ence of opinion as to the propriety
of the finding, where the finding is
within the range of the evidence,
and where it does not appear that
substantial injustice has been done.



Release of Errors. -A judgment
in favor of A. against B. was ren-
dered by confession, upon a warrant
of attorney made by B., waiving the
filing of a complaint and the issue
and service of process, and setting
out a copy of the note on which

the judgment was confessed, and
authorizing the attorney confessing
to release all errors. The record
showed that the execution of the
power was proved to the satisfaction
of the court, and also that the de-
fendant waived all error. B. ap
pealed, assigning for error the render-
ing of the judgment without a com-
plaint being filed, and without procf
of execution of the power, and that
a judgment was rendered for the
amount of attorney's fees mentioned
in the note. A. answered to the
assignment of errors, that the judg
ment was rendered by virtue of a
power of attorney made by B.; that
in the power B. expressly waived the
filing of a complaint, and released all
errors; that the execution of the
power was duly proved to the satis-
faction of the court; and that judg
ment was rendered waiving all error,
and was only for the amount of
principal and interest due upon the
note, and contained no amount for
attorney's fees.

Held, that the release of errors pleaded,
the truth which was sustained by
the record, was a bar to the proceed-
ing in error. Boyd et al.
Assignment of Errors.-Demur-
rer.- -Waiver.-The objection that
the court erred in rendering judg-
ment for plaintiffs, because the com-
plaint does not state facts sufficient
to constitute a cause of action, is not
waived by a failure to demur to the
complaint, and answering it, but may
be assigned for error in the Supreme
Court. Newhouse v. Miller et
Same.-Names of Parties.—On an
appeal to the Supreme Court, the
assignment of errors must state the
names of all the parties to the appeal;
and if any of the appellants be there-
in designated only by the words “.?
al.," the appeal will be dismissed.
Lang et al. v. Cox et al............470




Credibility of Witnesses.-The
Supreme Court will not, upon the
evidence, reverse the finding of the
court below, trying an action without
the intervention of a jury, where the
evidence is conflicting, and its weight
must be determined by the credibility
of the witnesses. Wallace v. Mil-



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