Offutt v. Cooper et al. one-half the mortgage debt due to Cooper as a part of the purchaseprice of the land, when he purchased it from the mortgagor, Stout. It is to be observed that there was no issue in the case, involving such a question as this. It is nowhere alleged that he assumed any part of the mortgage debt as part of the purchase-price of the land. Furthermore, it affirmatively appears, from the evidence in the cause, that he did not assume any part of the mortgage debt as part of the purchase-price of the land. He received the land from Stout in exchange for real estate in the city of Louisville, Ky. The agreed price of the real estate in Louisville was fourteen thousand dollars, upon which there was a mortgage amounting to five thousand dollars. Stout assumed the payment of this mortgage, leaving due to the appellant the sum of nine thousand dollars. In payment for this sum,Stout conveyed to the appellant the land in controversy, consisting of three hundred and thirty-two acres, at the agreed price of twenty-five dollars per acre, amounting to eight thousand three hundred dollars. This left due from Stout to the appellant the sum of seven hundred dollars, which was paid in cash. It is thus made to appear that the appellant was never, at any time, indebted to Stout for any part of the purchase-price of the land covered by Cooper's mortgage. The finding of the court, therefore, that the appellant assumed onehalf the mortgage debt due to Cooper is contrary to the evidence in the cause as it comes to us, and for this reason the court erred in overruling the appellant's motion for a new trial. Other questions are presented by the record, and argued by counsel, but they are of such a character as that they may not arise upon another trial of the cause. Judgment reversed as to the appellee Abraham, with directions to grant a new trial upon the issues formed on the appellant's crosscomplaint. Filed Jan. 30, 1894. INDEX. ACCIDENT INSURANCE. 1. Construction of Policy.-What Accidents Come Within Its Provisions.- Condition.— An accident insurance policy contained the following provisions: "The Fidelity and Casualty Company, of New York, insures the legal holder hereof against accidental injuries received within thirty days from the day and hour registered hereon, as follows: $5,000, in case of death, payable to the beneficiary named hereon, subject, always, to the conditions indorsed hereon. Condition 1. This covers * * * the assured only against the hazard of travel as a passenger on a public conveyance provided by a common carrier within the United States or Canada.' The assured died from injuries sustained in falling from the hay-loft of a livery barn in San Antonio, Texas. Is such an accident within the provisions of the policy? Held, that such accident does not come within the provisions of the policy, the meaning of the insuring clause and the condition, when construed together, clearly being that the company insured against accidental injuries arising only from the hazard of travel as a passenger on a public conveyance provided by a common carrier within the United States or Canada. Fidelity and Casualty Co. v. Teter, 672 2. Soliciting Agent.-Representations of. When Does Not Control Stipulations in Policy.-An erroneous construction of the force and effect of a contract of insurance, as made and stated by the soliciting agent to the applicant, does not control the proper and legal construction of the contract, unless the representations made by the agent are within the apparent scope of his authority. ACTION. Ib. See AMENDMENT OF PLEADING, 2, 3; Contract, 3, 4; Deed, 2; ExEMPTION FROM EXECUTION; FRAUDULENT CONVEYANCE, 1, 3, 4; GUARDIAN AND WARD, 1, 2; LEGISLATURE, 2; NOTICE; REAL ESTATE, 3; STATUTE OF LIMITATIONS, 1; STATUTE REPEALED; WILL, 1. 1. For Damages for Fraudulently Obtaining Judgment.-When not Maintainable.-An action for damages for fraudulently obtaining a judgment can not be maintained by a party thereto so long as such judgment stands, for a judgment for damages would operate as an impeachment of the first judgment. So long as a judgment stands, it imports absolute verity as to every proposition of law and fact essential to its existence against all the parties to it. Shultz v. Shultz, 323 2. Remedy.-Railroad.-Erecting Depot on Another's Land Without Objection.-Damages.-Where a land owner stands by and, without objection, permits a railroad company to erect a depot on his land, and remains inactive with reference thereto for six years, he can not then recover possession of the land so appropriated by the railroad company. His remedy is in an action for damages. Louisville, etc., R. W. Co. v. Berkey, 591 3. Misjoinder of Causes.-Action by Creditors to Set Aside a Fraudulent Mortgage on Debtor's Property.—Former Adjudication.-Creditors may join in a common complaint against a common creditor, though the debts are several and separate, where the complaint seeks to set aside a fraudulent mortgage on the debtor's property; and when the element of fraud fails to be sustained, then the right of recovery in a common suit is gone, and each must recover on his separate debt, in a separate action; for as soon as the element of fraud failed to be established, there was a misjoinder of causes of action. In such case the failure of the joint action will not operate as a bar to a future recovery on the separate debts, in separate actions. Elliott v. Pontius, 641 ADMISSION. See SPECIAL FINDING, 2. ADVERSE POSSESSION. See REAL ESTATE, 1, 8. AFFIDAVIT. See BILL OF EXCEPTIONS, 2; CRIMINAL LAW, 27, 28; DRAINAGE, 3; JUS- ALIBI. See CRIMINAL LAW, 19. AMENDMENT. See STATUTE. AMENDMENT OF PLEADING. 1. Amended Complaint. See RECEIVER, 2. When Relates Back to Filing of Original Complaint. When Not.-Statute of Limitations.-An amendment of a complaint, which amounts to a restatement of the original cause of action relates back to the filing of the original complaint, but where the amended pleading states a different cause of action from that set up in the original complaint, it can not be made to relate back to the filing of the original complaint, so as to defeat the operation of the statute of limitations. Blake v. Minkner, 418 2. Amended Complaint.-Different Cause of Action.-Partition.-Ejectment. Where the cause of action stated in the original complaint was simply that of partition, which was amended so as to state a cause of action in ejectment, the amended complaint states a different cause of action, and does not relate back to the filing of the original complaint, so as to defeat the statute of limitations. Ib. 3. Amended Complaint.-When States a Different Cause of Action.— Where the cause of action stated in the original complaint, and that stated in the amended complaint, do not correspond, either in their essential elements or in the evidence necessary to support each, the causes thus stated are different, and neither could operate as a bar to the other. Ib. ANSWER. See COSTS; EJECTMENT; PLEADING, 4, 5. APPEAL. See COUNTY COMMISSIONERS, 1, 2; DRAINAGE, 3, 4, 5, 6; JUDGMENT, 1; PARTIES, 1. APPELLATE COURT. Jurisdiction. Money Demand.-Opening of Street.-Damages.-Remedy of Land Owner.-Mandate.-Where land has been appropriated by a city in the opening of a street, and the common council has approved the final report of the city commissioners, assessing benefits and damages, the damages were due and collectible as soon as the assessment was confirmed, unless the common council, in its resolution approving the final report of the commissioners, make express provision that the persons in whose favor damages are assessed shall wait until their damages are collected out of the benefits. And, in such case, the proper remedy of the person who has been awarded damages is by an action on a money demand for the amount awarded; and where such amount does not exceed $3,500, the jurisdiction, on appeal, is in the Appellate Court. Quare, where the common council, in such case, have provided for the payment of damages out of the benefits assessed, when collected, and the city refuses to make such collection, can the city be compelled, by mandate, to make collection of the assessed benefits, and pay the damages out of the sum so collected? City of Terre Haute v. Blake, 636 APPRAISEMENT. See SHERIFF'S SALE, 1, 2; SUPREME COURT PRACTICE, 8. See SUPREME COURT PRACTICE, 4, 7. ARREST OF JUDGMENT. See CRIMINAL LAW, 11. ARSON. See CRIMINAL LAW, 14. ASSAULT AND BATTERY WITH INTENT TO KILL. ASSAULT AND BATTERY WITH INTENT TO COMMIT RAPE. ASSIGNMENT OF ERRORS. See JUDGMENT, 4, 5. 1. Conclusions of Law.-Exception to.-Assignment, How Made.Where an assignment of error is that the court erred in overruling the exceptions to the conclusions of law, instead of that the court erred in its conclusions of law, the record not showing that the court did overrule such exceptions, and not being required to take such action, no question is presented as to the conclusions of law. Starkey v. Starkey, 349 2. Instructions to Jury.-Conjunctive Assignment.-An assignment of error that the court erred in giving (or in refusing to give) several instructions, naming them conjunctively, can not prevail unless all of the instructions so joined in the assignment are erroneous, if given, or, if refused, are good and entitled to be given to the jury. Pennsylvania Co. v. Sears, 460 3. Conjunctive Assignment. When Must Fail.-An assignment of error that "The court erred in sustaining the demurrer of the appellee to the second and third paragraphs of appellant's answer," must fail if either paragraph is sufficient. Black v. Thompson, 611 VOL. 136-45 BILL OF EXCEPTIONS. See JUDGMENT, 4; RECORD, 1. 1. Presenting and Signing on Sunday.-When Unlawful.-Where no emergency is disclosed, nor necessity shown, for presenting and signing a bill of exceptions on Sunday, such act is unlawful. Roberts v. Farmers', etc., Bank, 154 2. Original Depositions, How Made Part of Bill.—Certiorari.—Affidavit of Clerk.-An affidavit of a clerk in return to a writ of certiorari, that on a certain page of the bill of exceptions immediately following the stenographer's report of the oral evidence and its incidents, space was left for depositions, and such depositions were placed inside of the bill of exceptions at said point, but not otherwise fastened, means that the original depositions were placed within the bill, at such point, without being fastened thereto. And, in such case, if the words "here insert" are omitted, the depositions must at least be fastened to the bill before they can constitute a part thereof. Pennsylvania Co. a. Sears, 460 3. Can Not be Attacked by Statements of Clerk.-Certiorari.-The integrity of a bill of exceptions can not be assailed and destroyed by the statements of the clerk in a return to a writ of certiorari. Ib. 4. Stenographer's Longhand Manuscript. When Part of Record.— Where the stenographer's longhand manuscript of the evidence is embraced in the bill of exceptions, and is properly certified to, the evidence is properly in the record, a certified copy thereof not being necessary. Louisville, etc., R. W. Co. v. Berkey, 591 5. When not in the Record.-Presentation to Judge.-Signature.-Sixty days from June 16, 1891, were given in which to prepare and to present to the judge, for his allowance and signature, a proper bill of exceptions, and the only part of the bill that contains any statement when it was presented to the judge for his approval and signature is the concluding clause thereof, viz: "And the plaintiff now presents and tenders this, his bill of exceptions, this day of August, 1891, and asks that the same be signed, etc., which is now here done, this day of August, 1891, and within the time allowed by the court therefor. * * Judge." And somewhere on the bill, but not in body thereof, was found the following indorsement, to wit: "Presented August 6, 1891. "GEORGE V. Howк, Judge. And Judge Howk having died January 12th, 1892, the bill was signed by his successor, George B. Cardwill, May 5, 1892. Held, that there was no valid bill of exceptions in the record. Wood v. Ohio Falls Car Co., 598 BOND. See COUNTY TREASURER; GUARDIAN AND WARD, 1; OFFICE AND OFFI CER, 3. BRIDGES. See RAILROAD, 8, 9, 11, 12. BRIEF. See SUPREME COURT PRACTICE, 5. BURDEN OF PROOF. See DRAINAGE, 6; FRAUD; MASTER AND SERVANT, 2; RECORD, 3. Power of Attorney.-Presumption.-Where a complaint alleges that a power of attorney has been revoked by mutual agreement, the |
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