Hayes, 163 Ind. 422, 429, 72 N. E. 119; Ellison v. Ganiard, 167 Ind. 471, 79 N. E. 450; Reel, Receiver, v. Bramner, supra. Other questions presented are disposed of by our discussion of the conclusions of law. Judgment affirmed. (63 Ind. App. 527) EDDY v. HONEY CREEK TP., WHITE (Appellate Court of Indiana, Division No. 1.. 1. PLEADING 194(1)-DEMURRER-STATUTE. 2. ANIMALS 88-LIABILITY OF TOWNSHIP tained by the receiver as the representative | on Trust Co. v. Blish, supra; Sellers v. of such creditors, it is on the theory that they as members and policy holders dealt with the company and became members and policy holders in reliance on the belief that the sum of $20,000 involved had been paid on applications for insurance as required by the statute, rather than that it had been advanced by appellees as aforesaid. The finding, however, renders the existence of any such belief impossible as to the greater number of the members and policy holders. The finding is to the effect that as a general rule, the members and policy holders at the time they applied for insurance, and when the policies were issued were fully and specifically informed respecting the advancing of such sum by appellees, and the arrangement by which it was to be repaid. With such knowledge they became members and policy holders. Under the finding, there were exceptions, but the class that acted with full knowledge was by far more numerous than the class that did not have such knowledge. The sum advanced by appellees became a part of the fund drawn on for the payment of dividends aggregating more than $8,000. The members of each class alike received and retained dividends apportioned to them. It is apparent that as to the members of the class that had full knowledge of the facts, the foundation of the cause of action prosecuted in their behalf as beneficiaries has crumbled. By their acquiescence they are estopped. As having a bearing, see the following: Bent, Receiver, v. Underdown, 156 Ind. 516, 60 N. E. 307; Bruner, Receiver, v. Brown, 139 Ind. 600, 38 N. E. 318; Reel, Receiver, v. Bramner, 56 Ind. App. 180, 101 N. E. 1043; Lea v. Iron Belt Co., 147 Ala. 421, 42 South. 415, 8 L. R. A. (N. S.) 279, 119 Am. St. Rep. 93; First National Bank v. Gustin, etc., Co., 42 Minn. 327, 44 N. W. 198, 6 L. R. A. 676, 18 Am. St. Rep. 510; Hospes v. Northwestern, etc., Co., 48 Minn. 174, 50 N. W. 1117, 15 L. R. A. 470, 31 Am. St. Rep. 637; Hill v. Atlantic, etc., Co., 143 N. C. 539, 55 S. E. 854, 9 L. R. A. (N. S.) 606, and note. -NATURE OF. The liability of townships to pay indemnirived wholly from statutes which must be subties for swine killed or injured by dogs is destantially followed by the claimant. [Ed. Note.-For other cases, see Animals, Cent, Dig. § 597; Dec. Dig. 88.] 3. ANIMALS 88-LIABILITY OF TOWNSHIP -CONSTRUCTION OF STATUTE. Under Burns' Ann. St. 1914, § 3269, making townships liable to owners of live stock killed or damaged by dogs upon a report being made to the trustees, the requirement regarding such report is mandatory. Cent. Dig. § 597; Dec. Dig. 88.] 4. ANIMALS 88-LIABILITY OF TOWNSHIP -STATUTE. Under Burns' Ann. St. 1914, § 3269, providing that owners of live stock killed or damaged by dogs "shall within ten days from the time thereof" report certain facts to the township trustees to render the township liable, the report must be made within ten days after the injury, regardless of when the animal died. [Ed. Note.-For other cases, see Animals, Cent. Dig. § 597; Dec. Dig. 88.] Appeal from Circuit Court, White County; Henry H. Vinton, Special Judge. Action by Harry C. Eddy against the Honey Creek Township, White County, Ind. Judgment for defendant, and plaintiff ap [7] A cause of action exists then, if at all, in favor of a class of creditors, rather than in favor of all the general creditors. A receiver, as trustee for creditors, may prosecute only those causes of which all the general peals. Affirmed. E. B. Sellers, of Monticello, for appellee. creditors are beneficiaries. Interests peculiar Sills & Sills, of Monticello, for appellant. to a class of creditors, and from the benefits of which the general creditors are excluded, are not represented by a general receiver for purposes of vindicating rights based thereon by litigation. Otherwise would be to permit him to act in antagonism to the beneficiaries of the trust which he represents. It results that on the assumption that the receiver sues as trustee for the creditors, he cannot, under the finding, maintain this action. It follows that there is no error in the conclusions of law. See the following: Mari BATMAN, J. This was a suit by appellant against appellee to recover damages under section 3268, Burns 1914, on account of the killing by a dog of certain swine belonging to appellant. The amended complaint alleges, among other things, that certain of such swine died and was killed on the 10th, 12th, 14th, and 28th days of July, 1910, respectively; that within ten days from the killing of each of said swine, the plaintiff filed with For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes the trustee of said township his claim and lant to each the second and third paragraphs report of such killing, alleging and stating of answer, contains the following, as the therein the number, age, and value of each ground thereof: of said swine, in which report and claim he was joined by John N. Bunnell and Levi Reynolds, two disinterested and reputable freeholders and householders of said township. To this amended complaint the appellee filed a paragraph of answer in general denial, which was subsequently withdrawn, and two affirmative paragraphs designated as second and third. The second paragraph of answer contains, among other things, the following allegations: "The defendant for further answer to so much of said complaint as seeks to recover for the killing of one brood sow, two years old, being plaintiff's amended complaint herein, says that on the 4th day of July, 1910, the one brood sow, two years old, mentioned in the complaint, was bitten by a dog afflicted by hydrophobia, which dog did not belong to the plaintiff and was not harbored by him. He further says that said dog was killed on or before July 5, 1910; that said dog did not bite or otherwise injure said hogs later than July 5, 1910; that said sow died July 28, 1910." It then alleges in substance that the appellant did not make any report to the trustee of such township of the maiming and killing of such hogs until the 2d day of August, 1910, which was more than ten days after the injury had been inflicted upon said animal by such dog. The third paragraph is likewise a partial answer, and contains substantially the same allegations as the second, except that it applies to the remaining stock mentioned in the complaint, alleging that the injury was inflicted on or about the 5th day of July, 1910, fixing the dates on which the same died as July 10, 12, and 14, 1910, respectively, and further alleging that no report of the injury inflicted on the 4th day of July, 1910, was filed with the trustee of said township until the 16th day of July, 1910, and that as to one of such hogs, no report was filed until the 2d day of August, 1910. The appellant demurred separately to each of said paragraphs of answer, which demurrer was overruled and the proper exceptions reserved. The appellant refused to plead further, and judgment was thereupon rendered in favor of the appellee. The appellant assigned as the sole error on which he relies for reversal the action of the court in overruling his separate demurrer to each the second and third paragraphs of his answer. The appellee advances two theories on which the ruling of the court below was proper: First, that appellant's demurrer was not in the proper form' to raise any question as to the sufficiency of either of such paragraphs of answer. Second, that each of such paragraphs of answer alleges facts which show that the reports of such injuries made by the appellant to the township trustee were not filed within ten days from the time there of, as required by section 3269, Burns 1914. "That the facts stated in each of said paragraphs of answer are insufficient to avoid the cause of action stated in plaintiff's complaint." The Code provides but one form of demurrer to an answer, viz.: That it does not state facts "sufficient to constitute a cause of defense." It is found in section 351, Burns 1914, and must be substantially followed. The courts have held the following alleged grounds of demurrer to an answer to be insufficient to present any question, viz.: "It does not state facts sufficient to make a good answer to the complaint." Dawson v. Eads (1895) 140 Ind. 208, 39 N. E. 919. "That neither of said paragraphs constitutes any defense to this action." Reed et al. v. Higgins. Adm'r (1882) 86 Ind. 143. "That it does not state facts sufficient to constitute a bar to the plaintiff's complaint." Hilderbrand et al. v. McCrum (1884) 101 Ind. 61. "That neither of said paragraphs of answer state facts sufficient to bar the plaintiff's acAngaletos v. Meridian National Bank tion." of Indianapolis (1891) 4 Ind. App. 573, 31 N. E. 368. It is quite apparent that if a demurrer to a paragraph of answer, which alleges that it does not state facts "sufficient to bar the plaintiff's action," is insufficient in form to raise any question, one that alleges that the facts stated in a paragraph of answer are "insufficient to avoid a cause of action," will likewise not raise any question. This is especially true in this case, since each paragraph of answer to which the demurrer is addressed is a partial answer only, and might be good as such, without stating facts "sufficient to avoid the cause of action stated in plaintiff's complaint." We therefore hold that the demurrer raises no question as to the sufficiency of either paragraph of the answer. [2-4] But even if such demurrer had been in statutory form, there would have been no error in overruling the same, as each paragraph of the answer to which it is addressed states facts sufficient to constitute a cause of defense. This conclusion involves the construction of section 3269, Burns 1914, which provides, among other things, that "the owners of sheep, cattle, swine, horses, and other live stock or fowls killed, maimed or damaged by dogs, shall within ten days from the time thereof report to the trustee of his township under oath" certain facts with reference to such injury and damages. Each of said paragraphs of answer state facts showing that such hogs were injured by being bitten by a dog on a certain date, and that no report was made to the trustee of such township until more than ten days after such injury, but that a report thereof was made to the trustee of such township, within ten days from the death of such animals, following such injury. Appellant claims that it is a sufficient compliance with the statute, if the required report be made within ten such animal dies, but one time in either event, viz., ten days from the infliction of such injury. The Legislature might have fixed the time otherwise, but it did not see fit to do so, and we are bound by the statute as written. It may be, as appellant urges, that the extent of the injury inflicted, and the amount of damages sustained, cannot be accurately ascertained until the final result is known, but this fact would not lead to a different construction of the statute. The same fact might be urged with equal force as to personal injuries, and yet all actions for such injuries must be brought within a period of two years from the time the right accrues, or they are barred, notwithstanding the fact that the result of any such injury may remain more or less uncertain for many years. Resort is had to the common experience of men, the opinions of experts, and such like means, to determine the permanency of the injury and amount of damages, rather than deferring a right of action until the results are definitely known. while appellee contends such report must be | animal survives, and another time where made within ten days from the time of the infliction of such injury, regardless of the time of the death of such animals. It does not appear that this particular question has been decided by this court or the Supreme Court. No such decision has been cited, and our investigation discloses none. We must therefore determine it from the language of the statute itself. In determining this question it would be well to remember that there is no common-law right to indemnity from the township, for swine killed or injured by dogs, but such right is statutory, and must be asserted in substantial compliance with the conditions in the law creating it. Such requirement as to making such report is mandatory, and there can be no recovery from the township until it has been fulfilled. Abell et al. v. Prairie Civil Township of Henry County (1892) 4 Ind. App. 599, 31 N. E. 477. The statute provides that upon such injury being inflicted, the owner "shall within ten days from the time thereof report to the trustee of his township under oath" certain facts. It is apparent that the words "from the time thereof" refer, and can refer, only to the time of the injury, and have no reference whatever to whether the animal so injured dies or recovers. It is evidently the intention of the Legislature to fix a definite time in which such owner should report to the township trustee, in order to receive compensation, so that the matter might be brought to his notice while the facts were fresh, in order that he might investigate and protect the fund in his hands from wrongful and excessive claims. Such provisions would be of little value if no definite time were fixed from which the designated period of ten days should begin to run, so the Legislature evidently intended from the language used that such time should begin to run from the infliction of such injury, regardless of the results thereof. Appellant claims that the statute requires certain facts to be stated under oath, in the report of such injury, that can only be stated after the results thereof are known, and urges this as a reason for the construction of the statute for which he contends. We do not concur in this view. If an own er of stock injured by a dog were not required to make a report until within ten days from the time the result of the injury was We therefore conclude that each of said paragraphs of answer alleges facts sufficient to constitute a cause of defense. We find no error in the record, and the judgment is therefore affirmed, (219 N. Y. 435) In re COLE'S ESTATE. In re UNION TRUST CO. OF NEW YORK, (Court of Appeals of New York. Dec. 28, 1916.) WILLS 729-RIGHTS OF LEGATEES—ANNUI TY-ELECTION. Where an absolute and unqualified annuity is given by a will with instructions to invest a nuitant may elect to take the capital sum, insum sufficient to purchase the annuity, the anstead of having it invested for the purpose of producing the annuity, since, if the testator. deemed it necessary to protect the annuitant against improvidence, he could have done so through the instrumentality of a trust. [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1781-1784; Dec. Dig. 729.] Appeal from Supreme Court, Appellate Division, Second Department. In the matter of the estate of William Washington Cole, deceased. From an order of the Supreme Court, Appellate Division, known, the value of the provision requiring Second Department (161 N. Y. Supp. 120), any report at all would be largely destroyed. reversing an order of the Surrogate's Court Under such a construction, if the injured of Queens County, which denied the applianimal died such ten days might begin to run from such death, but if the animal should survive, after lingering between life and death for weeks or months, when would such ten-day period begin to run? could say when the recovery was sufficient, to set such ten-day period in motion? The statute does not provide one time for the tenday period to begin to run where the injured Who cation of Clarissa Sprake for payment to her by the Union Trust Company of New York, as executor, of $10,000, which testator's will directed should be expended in the purchase for her of an annuity, the Trust Company appeals. Affirmed. Nathan A. Smyth, of New York City, for appellant. Thomas M. Rowlette, of New York City, for respondent. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes CUDDEBACK, J. The will of the testator contained the following provision: "VI. I direct my executor to purchase within one year after my death of some life insurance company or other company sound financially doing business in Great Britain of said executor's selection an annuity payable quarterly to each of the following named individuals, said annuity shall be such sum as the amount specified in each case shall procure. There shall be expended for each one of said annuities as fol lows: "4. The same sum of ten thousand dollars shall be expended in each case for an annuity as above provided for each one of the following named individuals, viz.: "a. Clarissa Sprake, of London, England, wife of Henry Sprake and daughter of my mother's brother Henry Cooke." Clarissa Sprake, the person for whom the foregoing directions requiring the purchase of an annuity were made, applied to the Surrogate's Court for an order authorizing the Union Trust Company, the executor, to pay her the sum of $10,000 provided in the will, instead of applying the same to the purchase of an annuity. In her petition the applicant simply shows the provision of the will for an annuity, the extent of the decedent's estate, and that it is ample to meet all charges against it, and that she has filed with the executor a written notice of her election to take the sum of $10,000 instead of having the same expended in the purchase of an annuity, as directed by the will. The Surrogate's Court made an order denying the application, which on appeal, was reversed by the Appellate Division, and from the determination of the Appellate Division the executor of the will has appealed to this court. It is the settled law of England, and has been for more than a century, that the gift of an annuity must be regarded as a legacy of the definite sum required to purchase the annuity. The rule was laid down, and the reason for it stated, as long ago as 1797, in the case of Barnes v. Rowley, 3 Ves. Jr. 305, where the chancellor said: The counsel for the appellant strenuously insists that the right of election claimed by the petitioner thwarts the clearly expressed intention of the testator. I think not. It must be assumed that the will of the testator providing for the annuity was drawn with regard to the law existing on the subject. The testator knew, it must be assumed, that the gift of the annuity might be regarded as a legacy of the definite sum set aside to purchase the annuity. If he had desired to defeat this power of election, he should have followed the suggestion contained in Reid v. Brown, supra, and placed the $10,000 in trust for the benefit of the annuitant. The order appealed from should be affirmed, with costs to the respondent payable out of the estate. WILLARD BARTLETT, C. J., and CHASE, COLLIN, HOGAN, CARDOZO, and POUND, JJ., concur. Order affirmed. (219 N. Y. 420) D'UTASSY v. BARRETT. Where plaintiff concealed true value of express packages and paid a lower rate upon an agreed valuation, the company's rates being filed as required by Interstate Commerce Act Feb. 4, 1887, c. 104, 24 Stat. 379, as amended (U. S. Comp. St. 1913, § 8563 et seq.), plaintiff could not recover true value from express company, where goods were stolen by its agent. [Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 665, 708-710; Dec. Dig. 158(2).] Appeal from Supreme Court, Appellate Division, First Department. "Could I have prevented her selling the annuity the next day, if it had been laid out in an annuity for her? The whole 252 pounds would have been gone. The interference of the court against the will of the legatee to compel the laying out the money in an annuity for a perAction by Leo L. D'Utassy against William son, her own mistress, would have been perfectly M. Barrett, as president of Adams Express nugatory and vain. The executor can never Company. Order of the Appellate Division, benefit by it. I cannot raise a doubt upon it." First Department (171 App. Div. 772, 157 N. This case has since been followed in an Y. Supp. 916), affirming an order of the Speunbroken line of decisions apparently to the cial Term, which overruled plaintiff's demurpresent time. The last case I find is Matter rer to the partial affirmative defenses set of Brunning, [1909] L. R. 1 Ch. 276. The forth in the amended answer to the amendsame principle prevails in the state of Mas-ed complaint, and plaintiff appeals. sachusetts. Parker v. Cobe, 208 Mass. 260, 94 N. E. 476, 33 L. R. A. (N. S.) 978, 21 Ann. Cas. 1100. So far as the decisions of this state go, the case of Reid v. Brown, 54 Misc. Rep. 481, 482, 106 N. Y. Supp. 27, is the only one cited where the subject has been considered. That was a decision made at Special Term by Judge Truax, and it is precisely in point. Judge Truax said: firmed. Af Arthur W. Clement and Wilson E. Tipple, both of New York City, for appellant. William D. Guthrie, of New York City, for respondent. POUND, J. The complaint alleges that the defendant received certain packages from The distinction must be borne in mind between a limitation of liability and an agreed valuation in case of liability. When it is urged that the limitation of value should not be applied to any case of theft by the carrier's employés, for the reason that the company is liable for such acts as if the company had been the thief (Adams Express Co. v. B. & W. Co., 35 App. D. C. 208, 31 L. R. A. [N. S.] 309), the argument loses sight of the distinction suggested. When the agent acts within the scope of his employment in taking possession of the shipment "in legal effect it was the same as if the defendant, personified, had taken it" (Vann, J., in Hasbrouck v. N. Y. C. & H. R. R. R. Co., 202 N. Y. 363, 373, 95 N. E. 808, 812, 35 L. R. A. [N. S.] 537, Ann. Cas. 1912D, 150), but the liability may exist and the valuation of the shipment in case of liability may be agreed upon when the rates for transportation are based on the valuation of the goods intrust plaintiff's assignors for interstate shipment, | 168 N. Y. 533, 61 N. E. 896). A distinction and agreed to carry the same to the con- between a limitation of liability for conversignees thereof, but that said "Adams Ex- sion and for negligence is clearly shown in press Company, its agents, servants, and the cases. employés," stole said packages and their contents, and have unlawfully disposed of said property, and have converted the same to their own use, to plaintiff's damage upwards of $2,000. The answer sets up as a partial defense that it was agreed between the shipper and defendant that the value of each shipment was not more than $50, and that the defendant should not be liable for more than $50 thereon; that the shipper concealed the true value of the property; that charges were fixed and filed with the Interstate Commerce Commission as required by the Interstate Commerce Act of Congress of February 4, 1887, and the acts amendatory thereof, including the Carmack Amendment; that a higher charge would have been made if the true value had been given; that greater care would also have been taken to prevent the loss or theft of the property "as well through the acts or omissions of the agents or employés of said express company as through the acts or omissions of oth-ed to the carrier. er persons." To this affirmative partial defense the plaintiff demurs on the ground of the legal insufficiency thereof. The effect of the pleadings is that the defendant admits that "its agents, servants, and employés" stole, unlawfully disposed of, and converted the packages to their own use, and alleges that the value was stipulated as well in case the property was so stolen or converted by the employés of the defendant as in case the loss or theft was due to the acts of third parties, and therefore claims that if the evidence discloses that the property was so stolen and converted by an agent, servant, or employé of the defendant, the liability of the defendant should be limited to $50 on each shipment. Proof of actual conversion by the defendant itself would, under this partial defense, establish full liability, for it is not pleaded that the value is agreed upon as against such an act. As the defendant may act only through agents whose acts in the scope of their employment are attributed to it, the question narrowly presented is whether the agreed valuation applies to an action for the conversion of the goods by an employé for his own benefit and amounts to a partial defense. Agreements of limited liability are upheld where the loss is due to ordinary negligence or to the wrongful act of another (Boyle v. Bush Terminal R. R. Co., 210 N. Y. 389, 392, 104 N. E. 933; Boston & Maine R. R. v. Hooker, 233 U. S. 97, 34 Sup. Ct. 526, 58 L. Ed. 1141); but the law remains that the carrier may not claim a limitation of liability to a certain amount for its affirmative wrongdoing (Magnin v. Dinsmore, 62 N. Y. 35, 20 Am. Rep. 442) when the plaintiff makes proof thereof (Wamsley v. Atlas S. S. Co., The reason for the rule sustaining the declared and agreed valuation is to prevent fraudulent practices by shippers in obtaining a lower rate by undervaluation. Kansas City Southern Ry. Co. v. Carl, 227 U. S. 639, 652, 33 Sup. Ct. 391, 57 L. Ed. 683; Pierce Co. v. Wells, Fargo & Co., 236 U. S. 278, 35 Sup. Ct. 351, 59 L. Ed. 576. While the rule should not be extended to permit a carrier to realize a profit by converting valuable shipments, such conversions are so unusual as to be almost negligible. It would be unjust and contrary to the policy of the law to permit the agreed valuation to be overthrown for the purpose of enabling the shipper to obtain a recovery in excess thereof in a suit for loss or damage on any theory of trover or conversion for loss of goods by wrongful deliveries or acts of employés for their own benefit, based, not on the wrongful misconduct of the carrier as such, but on the act of the employé. Rosenthal v. Weir, 170 N. Y. 148, 154, 63 N. E. 65, 57 L. R. A. 527. The liability of carriers of goods at common law was that of insurers, and proper care and diligence were insufficient to avoid such liability. The duty was to carry the goods and deliver them to the consignee. A breach of that duty imposed liability. The innocent mistakes of the servant in delivering the goods, no less than his willful misconduct in breach of the trust reposed in him, constituted a conversion by the carrier. Price v. Oswego & Syracuse R. Co., 50 N. Y. 213, 10 Am. Rep. 475. But the contract in suit does not evade the liability; it merely fixes the valuation of the goods when liability is established. In an action for damages against the carrier, the shipper is bound by the terms of the contract, and it is of the |