The Louisville, New Albany and Chicago Railway Company v. Wolfe. It is true the language used was unjustifiable, and was an insult to those in whose presence it was uttered, but it is evidently the fact that this breach of decorum was provoked and caused by an insult offered by the conductor to the appellee in the presence of the passengers, and we see no just reason why, under such circumstances, it should operate as a defence to appellee's right of action, and bar him from a recovery. It is next contended that the verdict is excessive, for the reason that the jury found that all the physical injuries inflicted were caused by the appellee resisting, and that he can not recover for an injury caused by his resistance. There is nothing to show that the jury did include any damages for the injury occurring by reason of appellee's resistance, but the appellee being lawfully in the car, and having paid his fare, he had the right to be carried, and had the right to make reasonable resistance, as he did, by holding on to the seats, and he was forced loose and taken from the car; and for such damages as he sustained on account of such removal from the car the appellant is liable. English v. Delaware, etc., Canal Co., 66 N. Y. 454; Southern Kansas, etc., R. W. Co. v. Rice, 38 Kansas, 398; Lake Erie, etc., R. W. Co. v. Acres, 108 Ind. 548; Chicago, etc., R. R. Co. v. Holdridge, 118 Ind. 281. Some objection is made to the giving of the seventh instruction, and the refusal to give instruction seventh asked by appellant. We have examined these instructions, and think there is no available error in the instruction given. It is evident the jury was not misled by any technical error in the language used, even if it is erroneous. The instruction relates to the right to give exemplary damages, and there was some evidence which, if true, authorized the assessment of exemplary damages. Jeffersonville R. R. Co. v. Rogers, 38 Ind. 116. Where the offence is not punishable by the criminal law, and malice or oppression weigh in the controversy, exemplary or vindictive damages may be as Hormann et al. v. Hartmetz. sessed. What we have said as to the other alleged errors disposes of the question presented by the instruction refused. It is further contended that a new trial should have been granted by reason of accident and surprise on account of an absent witness. There is no diligence shown; no application for a continuance, and the evidence is merely cumulative. There is no error in the record. Judgment affirmed at costs of appellant. No. 15,128. HORMANN ET AL. v. HARTMETZ. MORTGAGE.-Payment of Prior Encumbrance.—Tender.—Where a husband and wife executed a mortgage on certain real estate, to secure a loan, and a portion of the money borrowed was applied to the payment of prior encumbrances on the mortgaged premises, they can not defeat the enforcement of the mortgage, though a part of the mortgage debt is not enforceable, when there has been no return or tender of the amount paid to discharge the prior encumbrances. PRACTICE.-Demurrer.—Sustaining of.—When Not Available Error.-Complaint. Where a demurrer is sustained to one paragraph of a complaint, and additional paragraphs are subsequently filed, alleging substantially the same facts, and requiring no more evidence than the one held bad, the ruling on the demurrer is not available. Summers v. Turney, 123 Ind. 560, distinguished. SAME.-Bill of Exceptions.- What Record Must Show as to Filing.-Un less the record affirmatively shows that a bill of exceptions has been filed, there is no bill in the record. Section 629, R. S. 1881. SAME.-Bill of Exceptions.-Date of Presentation.- Must Appear in Bill.--The date of the presentation of a bill of exceptions must be stated in the bill itself. It is not sufficient to endorse the time upon the bill. SAME.-Appeal-Objections to a Judgment, or Decree.-When Must be First Made.-Objections to a judgment, or decree, can not be successfully made, for the first time, on appeal. Specific objections must be preVOL. 128.-23 Hormann et al. v. Hartmetz. sented to the trial court, and so presented as to direct attention to the defects, or errors, and enable the trial court to review them, and, if need be, to correct them. From the Vanderburgh Circuit Court. C. B. Harris and J. T. Walker, for appellants. S. R. Hornbrook, for appellee. ELLIOTT, J.-A demurrer was sustained to the third paragraph of the appellants' complaint, and upon this ruling is based one of the specifications of error. But as the appellants subsequently filed additional paragraphs, alleging substantially the same facts as those pleaded in the paragraph held bad, and requiring no more evidence to support them, the error, if it was one, was harmless. Where a demurrer is sustained to one paragraph of a complaint, and additional paragraphs are subsequently filed, alleging substantially the same facts, and requiring no more evidence than the one held bad, the ruling on the demurrer is not available. Hunter v. Pfeiffer, 108 Ind. 197, and cases cited. We do not mean to trench upon the long established rule that a plaintiff may state his cause of action in different forms, nor do we do so, for we hold that where there is an amendment the amended pleading is superseded, and that where the paragraphs which remain entitle the plaintiff to give the same evidence as that admissible under the paragraph adjudged bad, and require no greater evidence, an erroneous ruling on the demurrer is not a prejudicial error. Long v. Williams, 74 Ind. 115; City of Elkhart v. Wickwire, 87 Ind. 77. Where, however, a paragraph of a complaint is erroneously adjudged insufficient, and others are held good, the error is not harmless if the paragraphs allowed to stand are substantially different from that held bad, or if those held good impose upon the plaintiff the burden of adducing stronger or greater evidence than would be necessary under the paragraph condemned. If, in other words, the effect of the ruling on demurrer is to make it necessary to introduce more or greater evidence, or to ex Hormann et al. v. Hartmetz. clude competent evidence, the error may be prejudicial, but it is otherwise where the ruling on demurrer does not have the effect either to abridge the right of the plaintiff or to increase his burden. The decision in Summers v. Tarney, 123 Ind. 560, does not, when justly interpreted, declare any doctrine opposed to our conclusion, for all that is there decided is that where two paragraphs of a complaint allege the same facts, it is not prejudicial error to overrule a demurrer to one of them. That case can not, however, be construed as asserting that a defendant would not be prejudiced if a bad paragraph was held good where such a ruling would enable the plaintiff to recover upon insufficient evidence. The principle involved in such a case is the same as that involved in such cases as Messick v. Midland R. W. Co., ante, p. 81, and Over v. Shannon, 75 Ind. 352. In a case where a demurrer to one paragraph is overruled and there is another paragraph stating the same facts as the paragraph assailed, but stating additional facts, it would be prejudicial error to hold the assailed paragraph sufficient, if, in fact, it is bad on demurrer. If, to somewhat vary the statement, a complaint contains two paragraphs, and one of them states only a part of the facts essential to a recovery, and the other states the same facts, but also states the other facts essential to a cause of action, it would not be a harmless error to overrule a demurrer to the paragraph stating part only of the facts essential to the existence of a right of action. Of course, other parts of the record might show a ruling in such a case to be harmless, but unless other parts of the record should show this, the error could not be regarded as a harmless one. Many cases affirm this doctrine, but we do not deem it necessary to cite them. The facts, as they appear in the special finding, are, in substance, these: The plaintiffs, here the appellants, are husband and wife, and have been since the year 1875. Prior to August 22d, 1885, Hiram E. Read owned the real estate in Hormann et al. v. Hartmetz. volved in the controversy, and on that day he conveyed it to the plaintiffs jointly. About the time of the purchase of the real estate the husband contracted for the erection of a dwelling-house thereon, for which he agreed to pay, and did pay, six hundred dollars. In November, 1884, the plaintiffs executed a mortgage to August Matt, and obtained from him three hundred and fifty dollars, which was used in paying for the house erected on the land of the plaintiffs. On the 26th day of February, 1885, the plaintiffs executed to the Franklin Building Association a mortgage to secure a loan of three hundred and ninety dollars, and they represented to the officers of the association that the money was to be used in discharging liens upon the property, and for improving it. On these representations the association relied. Of the money borrowed from the association, the sum of three hundred and fifty-five dollars was used to pay the mortgage executed to August Matt; the sum of ten dollars was used to pay expenses incurred in securing the loan, and there is no evidence as to the use made of the residue. On the 6th day of August, 1885, the plaintiffs conveyed the property to Herman Thole without consideration, and on the same day. obtained from the building association another loan, and executed a mortgage for one hundred and thirty dollars. The association knew that the money obtained was to be used by the husband in his own business, and the money was so used. On the 28th day of April, 1886, the husband obtained from one Klein a loan of two hundred dollars, for which a mortgage was executed by the husband and wife. On the 29th day of July, 1887, the plaintiffs joined in a mortgage to Solomon Bartholme for four hundred dollars, and the husband represented to Bartholme that Thole had re-conveyed to him and his wife, but this representation was not true. In June, 1887, the husband applied to Hartmetz, the appellee, for a loan, representing that he was the owner of the property; that he was about to engage in the saloon business, and would need more capital than he had. Hartmetz acceded to the hus |