6. Striking Out Evidence.-A party can not complain of the striking out of evidence, the admission of which was not authorized by his pleadings. Muncie National Bank v. Brown, 474
7. Calling Case for Trial.-Calling a case for trial is an announcement or declaration by the court that it has been reached in its order, and that a judicial examination of the issues upon which the decision of the case depends is about to begin. Moore v. Sargent, 484 8. Finding of Facts.- When Regarded as a General Finding.-A finding made by the court upon the trial of a cause, no matter how full it may be, will be regarded on appeal as a general finding, unless the record shows that it was made in writing, at the request of one or both of the parties, and signed by the judge.
Conner v. Town of Marion, 517 9. Reserved Questions of Law.-Causes for New Trial. -Alleged errors occur- ring at the trial must be made grounds of a motion for a new trial, and this rule applies as well to questions of law reserved under sec- tion 630, R. S. 1881, as to questions reserved under the general rules of practice authorized by the code. Ib.
10. Same.-Questions Arising on Evidence.-Bill of Exceptions.-Where, an- der section 630, R. S. 1881, the reserved question of law arises on evidence admitted at the trial, all the evidence which has any bear- ing upon the reserved question must be made part of the record by the bill of exceptions, to enable the Supreme Court to apprehend the particular question involved. Ib.
PREFERENCE OF CREDITOR.
See BANKRUPTCY; LABORERS AND EMPLOYEES.
See CHATTEL MORTGAGE, 3; EXECUTORS AND ADMINISTRATORS, 4; FRAUD- ULENT CONVEYANCE, 1; NEGLIGENCE, 19; RAILROAD, 16, 17, 23; SPECIAL FINDING, 1; SUPREME COURT, 4.
PRINCIPAL AND AGENT.
See INSURANCE, 2 to 4, 6, 7; RAILROAD, 3.
PRINCIPAL AND SURETY.
See APPEAL BOND; GUARANTY; GUARDIAN AND WARD; MORTGAGE, 1 to 3; PROMISSORY NOTE, 7, 8; RECOGNIZANCE; TOWNSHIP TRUSTEE.
See CHATTEL MORTGAGE, 10; LABORERS AND EMPLOYEES; MINES; MORTGAGE, 8, 9.
PRIVILEGED COMMUNICATIONS. See EVIDENCE, 2; WITNESS, 1.
PROCEEDINGS SUPPLEMENTARY TO EXECUTION.
1. Pleading.-Method of Testing Sufficiency of Affidavit.— Motion to Quash.— Practice. In a proceeding supplementary to execution, the statutory methods of testing the sufficiency of the order and affidavit, viz., by demurrer, motion to dismiss or motion to strike out, must be pur- sued, and a motion to quash the writ and order, not being authorized by the statute, should be overruled. Hutchinson v. Trauerman, 21 2. Same.-Civil Action.-Amendment of Affidavit.-A proceeding supple- mentary to execution is a civil action, and the modes of procedure and rules of practice fixed by the code in civil actions are applicable to such proceeding, except where the statute on that subject has pre- scribed a different procedure and practice. Where, in such a proceed-
ing, a demurrer has been sustained to the original affidavit, the plain- tiff may be allowed to amend and proceed as in other civil actions.
3. Same.-Special Finding of Facts and Conclusions of Law.-Practice. --- Upon the hearing of such a proceeding, the statute does not contemplate that either party may require the trial court to make a special find- ing of facts therein and state its conclusions of law thereon.
See DAMAGES; EVIDENCE, 9.
PROMISSORY NOTE.
See MORTGAGE, 1 to 4; PAYMENT; STATUTE OF LIMITATIONS, 2 to 4; Town- SHIP TRUSTEE, 4, 5.
1. Duty of Maker to Ascertain Proper Person to Whom Payment Should be Made. -It is the duty of one having a matured outstanding note, in which no specific place of payment is appointed, to seek out the persons enti- tled to receive payment and discharge his debt, without waiting until those so entitled establish their right. Gale v. Corey, 39
2. Same.-Death of Payee.-Decedents' Estates.- Interest.— Abatement of.— Payment.-Upon the death of the payee of a matured promissory note, interest will not abate thereon, although the maker has the money set apart with which to pay it, and although there is no administration on the estate, the minor heirs of the deceased are without guardians, and it is uncertain as to whether there is indebtedness against the estate. If the maker desires to escape the payment of interest he should cause letters of administration to issue, and pay the debt to the administrator. Ib.
3. Same.-Interest After Maturity.-Contract.-Where a promissory note, by its terms, becomes due at a specified time subsequent to the death of a third party, who, during his lifetime, is to receive the interest thereon, and provides that on the death of such party interest shall cease, such latter stipulation will operate to relieve the maker from the payment of interest from the death of such party until the maturity of the note, after which interest is recoverable at the statutory rate. Ib.
4. Endorsement.-Fraud.-Innocent Purchaser After Maturity.-Estoppel.- Where the holder of a promissory note is induced, by fraud and with- out consideration, to endorse and deliver the same to another, who, after maturity, endorses it to an innocent purchaser for value and without notice, the latter takes title, the original holder being estop- ped as against him to deny the title of the fraudulent endorsee. Moore v. Moore, 149
5. Set-Off Against Assignor.- Reply by Assignee.-Sufficiency of.-In a suit by the assignee, after maturity, of a promissory note, it is a good re- ply to an answer of set-off by the maker against the assignor that the maker is indebted to such assignor in a sum in excess of that claimed Meeker v. Shanks, 207 as a set-off.
6. Legal Inception.-Delivery to Person Other than Payee.-It is not essen- tial to the legal existence of a promissory note that it should have been delivered to the person named therein as payee.
7. Sureties.-Inquiry.-Fraud.-Consideration.-If paper is signed for a special purpose in which the sureties are interested, the fact that it is made payable to a particular person may be sufficient to put another who takes it upon inquiry; and if to take it will operate as an in- jury or fraud upon the sureties, they may defend against it for want Ib. of consideration. 8. Accommodation Makers.-Perversion of Paper.-Where mere accommo-
dation makers, having no interest beyond the accommodation of their principal, either in the mode of raising the money or in the manner in which it is to be applied, sign a promissory note made payable to a named person, the fact that without their consent the note is delivered to another, without any alteration, who advances the money upon it, does not constitute such a perversion of the paper as will defeat it in the hands of a holder for value.
9. Rate of Interest.-Lex Loci Contractus.-Where promissory notes, in which no interest is specified or contracted, are executed and payable in another State, or at some specified place therein, the liability of the maker as to all matters contracted for therein is governed and measured by the laws in force in that State. Kopelke v. Kopelke, 435 10. Same.-Place of Payment.—Interest.—Damages.—Lex Fori.-Where, how- ever, promissory notes are payable generally, no place of payment being fixed, the general rule is that the lex fori governs in the collection thereof; and where no interest has been provided for therein, the in- terest recoverable after a breach of the contract is recoverable, if allowed, as damages; and where interest is adjudged as damages upon such contracts, the rate of interest will be governed by the law of the place of suit.
See ARGUMENT OF COUNSEL; CRIMINAL LAW, 7; INTOXICATING LIQUOR, 3; MEDICINE AND SURGERY, 2 to 4.
PROSTITUTE.
See CRIMINAL LAW, 5.
QUIETING TITLE. See EXECUTION, 2.
Complaint.-Relief of Different Character.-A complaint to quiet title to land, upon a specific claim of absolute ownership, does not entitle the plaintiff to relief of an entirely different character.
See MEDICINE AND SURGERY, 2 to 4; OFFICE AND OFFICER, 2, 3.
See CONTRACT, 4; NEGLIGENCE, 9 to 16, 20, 21.
1. Negligence.-Carrier.-Passenger Taking Wrong Train by Mistake.—Where a person has bought a ticket over a railroad, and by mistake takes passage on the wrong train, he is a passenger so far as to entitle him to protection against the negligence of the company.
Cincinnati, etc., R. R. Co. v. Carper, 26 2. Same.-Directions of Conductor to Passenger.-Contributory Negligence.- Where the directions of the conductor of a passenger train are within the scope of his authority, and obedience to them will not expose a passenger to known or apparent danger which a prudent man would not incur, obedience by the passenger is not contributory negligence, although it may result in bringing injury upon him.
Ib. 3. Same.-Principal and Agent. -Authority of Conductor. -When Termi- nated.-Responsibility of Carrier for Act of Agent.-Where a passenger enters a wrong train through a mistake of his own, the authority of the conductor as the representative of the carrier terminates when a safe alighting place is provided, and the passenger has voluntarily left the train in safety. In such case the carrier is not responsible for any advice or directions given by a conductor to the passenger after he has left the train, and is not liable for any injury received
by him while acting upon such directions or advice, however errone- ous, negligent or misleading the same may have been. 4. Private Crossings.—Land-Owner Required to Keep Gates Closed.—Statute. — Negligence.-Under the provisions of the act of April 8th, 1885, the land-owner for whose benefit a private farm crossing is maintained is required to keep the gates thereto closed, and the railroad company is exonerated from liability for damages resulting from his failure so to do, except where the injury or killing of animals is caused by the negligence of its servants. Pennsylvania Company v. Spaulding, 47 5. Same.-Cattle-Guards and Cross-Fences at Private Crossings not Required.— A railroad company is not required to construct or maintain cattle- Ib. guards or cross-iences at a private farm crossing.
6. Negligence.-Right of Public to Use of Track Laid in Street.-Trespass.- Where a railroad track is laid in a public street, the rights of the pub- lic and the railroad company respecting the use thereof are mutual, though those of the latter are paramount. A person is not a tres- passer who walks along such track, and if in so doing his foot be- comes fastened in an opening which exists by reason of the negligent construction of the track, and he is run upon by a train of the rail- road company, which is negligently managed, he being without fault, the railroad company is liable for the injuries sustained.
Louisville, etc., R. W. Co. v. Phillips, 59 7. Private Farm Crossings.-Railroad Company not Liable for Injuries to Animals Going Upon Track at Such Points.-Statute.-Under the acts of April 8th and 13th, 1885, a railroad company is not liable, in the absence of negligence, for the injury or killing of animals going upon its track through gates at private farm crossings, whether such crossings were constructed prior to those acts, or under the power given by the first section of the act of April 8th, or since the passage Hunt v. Lake Shore, etc., R. W. Co., 69 8. Statute.-Constitutional Law.-Fifth Section of Act of April 13th, 1885, Con- stitutional.-The 5th section of the act of April 13th, 1885, which pro- vides for the fencing of rights of way by railroad companies, the con- struction of cattle-guards, etc., is valid and constitutional, being suffi- ciently connected with the subject as expressed in the title.
9. Fencing Right of Way.-Act of April 13th, 1885, Did not Repeal Prior Statute.-Liability for Animals Killed-The act of April 13th, 1885 (Acts 1885, p. 224), relating to the fencing of railroad rights of way, did not repeal by implication the prior act on the same subject (R. S. 1881, section 4025, et seq.), and for a failure to fence at all places re- quired by the prior statute, railroad companies are liable as previously, except so far as farm crossings and gates are concerned.
Jeffersonville, etc., R. R. Co. v. Dunlap, 93 Pennsylvania Co. v. McCarty, 322 10. Same.-Joint and Several Liability of Owner and Lessee.-Incorporated Towns.-Platted Portions.-Procedure.-The prior statute not being re- pealed, the corporation owning a railroad, and its lessee, etc., are jointly and severally liable for the killing of animals upon the track thereof within such portions of an incorporated town as are laid out and platted, if the right of way could have been fenced at the place of killing, and the manner of commencing and prosecuting actions Ib. and of collecting judgments is the same as formerly. 11. Same.-Injury Must be Done by Cars or Engines.-Under the act of April 13th, 1885, as well as under the prior act, railroad companies are not liable for the injury or killing of animals unless injured or killed by the cars or engines.
Ib. 12. Right of Way.- Liability for Killing Animals Turned into. — Fence.—
Private Gate.-Where one habitually turns his horses into the right of way of a railroad company, through a gate maintained for his ac- commodation, in order that they may reach a pasture field adjoining the right of way, between which and the latter there is no fence, he can not recover their value if killed.
Fort Wayne, etc., R. R. Co. v. Woodward, 118 13. Wrongful Appropriation of Land.— Agreement of Parties.—Damages. -Com- plaint. Practice.-In an action against a railroad company for the wrongful appropriation of land, an agreement by the parties thereto, made in open court, fixing the amount of damages which the plaintiff is entitled to recover, if he has a cause of action, will be enforced; and in such case, if some part of the cause of action averred is good and unanswered, the plaintiff is entitled to recover the stipulated dam- ages. Bloomfield R. R. Co. v. Grace, 128 14. Same.- Pleading.— Defence.--Adoption by Railroad Company of Acts of Contractor or Receiver.-Where, in such a proceeding, the complaint shows a wrongiul appropriation of the plaintiff's land, an answer that the appropriation was made by a contractor of the railroad com- pany, or by the receiver of such contractor, is bad on demurrer. If the railroad company adopts the acts of its contractor and the re- ceiver, in appropriating the land, it must pay a just compensation. Ib. 15. Same.-Defence.—Answer.—Former Adjudication.-In such an action, an answer which attempts to set up the defence of former adjudica- tion, by averments that in a former suit against an insolvent construc- tion company, concerning funds in the hands of the officers of the court, or which might come into their hands, upon which parties other than the plaintiff had claims, the plaintiff might have litigated his claim, but which does not show that he had notice of the pendency of such proceeding, or was a party thereto, is insufficient. 16. Negligence.-Presumption that Men will Act Reasonably. Extraordinary Conditions.-Persons in control of railroad trains have a right to pre- sume that men of experience will act reasonably in all given contin- gencies. They are not bound to anticipate and provide against ex- traordinary, unusual and improbable conditions, which involve inat- tention on the part of others, and their duty to persons thus situate only begins when they have good reason to suppose that they are unconsciously in peril or disabled from avoiding it.
Cincinnati, etc., R. W. Co. v. Long, 166 17. Same.-Presumption that Men will Leave Track.-A watchman or lookout on a train, moving slowly, with bell ringing, may presume, when he sees a man walking soberly on or near the track, that the latter has observed the train, if by the exercise of care he could have observed it, and, unless something indicates the contrary, that he will step aside so as to avoid injury. 16. 18. Same.-Tracks Used by Several Railroads.— Liability to Servants of Other Companies.-The employees of a railroad company, whose track con- nects with union tracks belonging to a distinct corporation, which are used for switching and other local purposes by the several rail- roads centering in the city where they are laid, may assume that the servants of other companies, who are discharging duties upon the tracks and grounds of the union company, will observe a degree of care commensurate with the known perils of the situation and the duties required of them.
19. Same.-Switchman.-Injury While Discharging Duty.-Care Required of.- A railroad company using one of the union tracks is not liable for an injury to a switchman employed by another company, sustained by being struck by a slowly backing train, with bell ringing, while walking upon or near such track to reach a switch standard to be operated by
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