the plaintiff, as to issues not covered by them, the defendant will not be entitled to judgment thereon, though they be inconsistent with the general verdict as to the issues covered by them. The T., W. & W. R. W. Co. v. Milligan, 505 22. Supreme Court.-Appeal in Name of Deceased Party.-Motion to Set Aside Judgment After Term.-Assignment During Pendency of Action.-After the death of the plaintiff in an action, an appeal was taken to the Supreme Court from a judgment rendered against him in said action, error being assigned by counsel in the name of said plaintiff, and a join der in error being filed in behalf of the defendant by counsel, and there was judgment of reversal and for costs in favor of said plaintiff, the counsel who assigned error and the defendant and his counsel being ignorant of the death of said plaintiff until after the rendition of said judgment of reversal. Held, that if said judgment of reversal was not void, the Supreme Court never having acquired jurisdiction of said plaintiff, it was erroneous in fact and voidable, and, whether void or voidable, it ought to be set aside upon motion of the defendant, though such motion was not filed until after the expiration of the term at which said judgment of reversal was rendered. Held, also, that said appeal could not be prosecuted in the name of said plaintiff by one to whom, during the pendency of the action in the court below, the plaintiff had made a written assignment of the cause of action. Taylor v. Elliott et al., 588 23. Construction of Statute.-Transfer of Interest.-The provision of section 21 of the code, 2 G. & H. 51, that, in case of any transfer of interest, other than such as arises from the death, marriage or other disability of a party, "the action shall be continued in the name of the original party, or the court may allow the person to whom the transfer is made to be substituted in the action," means that when such transfer of interest is made, the action may be continued in the name of the original party if he be living, but does not mean that it may be continued in his name after he is dead. PRINCIPAL AND SURETY. ть. I. Indemnity to Co-surety.-Where a surety received from the principal debtor an indemnifying chattel mortgage, a co-surety could have no right of action against said mortgagee for failing to cause said mortgage to be recorded, if it was taken upon an agreement that it should not be placed on record. White v. Carlton, 371 2. Payment by Negotiable Note.-Contribution.-The satisfaction of a debt by a surety by giving his own note, governed by the law merchant, to the creditor, is such a payment as will authorize such surety to sue a co-surety for contribution. Ib. 3. Bank.-Deposit Under Special Agreement.—A person, who was indebted as principal upon a promissory note to a banking firm, after the maturity thereof, deposited in the bank of said firm, where said note was payable, and checked out, sums amounting to more than said indebtedness, under a special agreement between the depositor and the bank that the former should buy cattle and give the sellers checks payable or to be presented after the buyer had sold the cattle and deposited the proceeds in the bank, and that the bank should apply the money so deposited to the payment of such checks exclusively. Held, that the money so deposited could not have been applied by the bank to the payment of said note, and that a surety thereon, who was not a party to said agreement, was not released by the failure of the bank to so apply said deposits. Wilson et al. v. Dawson et al., 513 PROCESS. See PRACTICE, 10. PUBLIC POLICY. See CONTRACT, 3, 4. RAILROAD. See CITY, 9, 10; DAMAGES, 2; Negligence. I. Width of Right of Way Appropriated.-Erection of Telegraph Poles.-Additional Appropriation of Land.-By the original charter of a railroad company granted in 1846, the president and directors thereof were invested with all the rights and powers necessary for the construction and repair of a railroad between certain places named, within this State, "not exceeding sixty feet wide;" an amended charter enacted in 1849, before the construction of its road by said company, which did not expressly repeal any portion of the original charter, provided that "for the purpose of constructing said road, with all desirable appendages, and for putting and keeping the same in repair, and for doing all proper business thereon," said company was authorized "to enter upon, take and hold in fee simple all real estate and materials neces sary for that purpose, doing no unnecessary damage;" the qualifying words, "not exceeding sixty feet wide," contained in the original charter, not being inserted in the amended charter, which provided that said company should, within ten years, sell and dispose of all lands granted, conveyed or released to it, "except so much as may be embraced in the width of the road allowed by the charter," etc., and also provided that when such real estate and materials necessary for such purpose could not be had by donation or fair purchase, the owner was authorized to have the damages assessed in a mode therein provided, and that all claims for damages should cease unless applied for in two years next after the company had taken possession of such real estate or materials. Said company, by its agents, entered upon and took possession of certain land, without donation, purchase, condemnation, assessment of damages or claim therefor made by the owner, but with his acquiescence; and said company constructed its railroad over said land, and erected telegraph poles, with wires thereon, on ⚫ one side of said railroad, at the distance of nineteen feet from the center of the track. Held, that, construing the amended charter in connection with the original charter and with the whole current of legislation in this State regulating the right of eminent domain by uniformly fixing a limit to the width of the right of way, the amended charter did not enlarge the width of the right of way, as defined by the original charter.\ Held, also, that while said company might have acquired title to sixty feet in width of said land, if it had taken possession thereof and occupied such space; yet, having appropriated and used less than that width, its right being limited by its necessities to the extent that it occupied and used, it became entitled, not merely to the strip of ground on which the railroad track was constructed and the ground actually occupied by said telegraph poles, but, also, to the amount of land necessary for the purpose of constructing its road, with all necessary appendages, and for putting and keeping the same in repair, and for doing all proper business thereon, including sufficient land for the erection of telegraph poles at a safe distance from the track, together with the right to the exclusive use of the intervening space between said track and the fixture or appendage so erected. Held, also, said company having so erected telegraph poles on but one side of its road and made no use of the other side, except for the purpose of keeping its track in repair, for a period of eighteen years from the The L., C. & S. W. R. W. Co. v. Buchanan, 163 3. Same.-Practice-Waiver.-If such a proceeding may be dismissed, on the motion of the land-owner, because the instrument of appropriation deposited with the clerk of the circuit court, as provided in section 15, I G. & H. 509, is not signed by any person in behalf of the railroad company, such objection will be waived if not made until a late stage of the proceeding. Ib. 4. Appropriation of Land.-Damages.-On the trial of a proceeding to condemn land for the track of a railroad, it was not error to instruct the jury that the land-owner was entitled, as damages, to the value of the land actually taken, to which might be added any injury to the residue of the land naturally resulting from the appropriation and the construction and operation of the road thereon, such as cutting the fields into inconvenient and ill shape, and destroying means of communication between different portions of the farm, the company not being required to furnish any crossing other than highway crossings, but being entitled to exclusive possession of the strip taken; and that the jury might consider as damages any additional amount of fencing necessary to a safe and proper use of the defendant's improved farm, or fields already inclosed, as the company was not legally obliged to fence the railway track, except so far as it might choose to do so for the protection of its own interests, the law simply imposing on the company the obligation to pay for animals killed by it on its track where it was not, but might have been securely fenced. The B., P. & C. R. R. Co. v. Lansing, 229 5. Assessment of Damages to Land-Owner.-A proceeding to assess against a railroad company damages sustained by a land-owner from the appropriation of his land for the construction of the railroad of such company cannot be maintained by such owner, under sec. 15, 1 G. & H. 509, where there has not been an instrument of appropriation filed by the company, as provided in said section. The I., B. & W. R. W. Co. v. Reed et al., 357 6. Street.-A railroad company is liable in damages for injury occasioned by reason of the construction of a raised railroad track along a street of a city, thereby causing the water from rains and freshets to flow upon adjacent real estate, and also for injury occasioned by reason of the construction of an embankment, on a street approaching a street crossing of said track, in front of a lot in a city occupied by a dwelling-house, thereby rendering the approach to the lot in the front on such street impossible for carriages, wagons and vehicles and inconvenient for footpassengers. The 1., B. & W. R. W. Co. v. Smith et ux., 428 7. Jurisdiction.—Injury to Animals.—Action Under Statute.-Practice.—In an action, under the statute, against a railroad company, to recover for the killing or injuring of animals by a passing train, the complaint should aver that the animals were killed or injured in the county where the action is brought. If such averment be omitted, the objection to the complaint may be raised by answer or by demurrer assigning want of jurisdiction, but not by demurrer assigning failure to state facts suffi cient. If the question of jurisdiction be not so raised, it is not waived, ment. but the objection may be raised by motion in arrest of judgment. The failure to prove such fact is not a ground for a motion in arrest of judg The T., W. & W. R. W. Co. v. Milligan, 506 8. Same.-Action as at Common Law.--An action against a railroad company, based on its common law liability for negligently killing or injuring animals, is a transitory action, and may be brought in any county through which the railroad passes. 9. Negligence.-Injury to Animals.-The owner of horses left them in a pasture adjoining a railroad which was securely fenced, and went to another state, not leaving any person to look after the horses, which went upon the railroad track, through a gate which had been recently left open by trespassers, and the horses were negligently injured by a passing train. Held, that the owner of the horses was not guilty of contributory negligence. Ib. 10. Same. Upon the approach of the railroad train to said horses, they ran along the side of the track a long distance, and were forced upon the track by an embankment, and were driven into a bridge, and some of them were injured by the train, its speed not having been diminished, but having been increased; and the remaining horses were injured on the bridge by another train which followed in a few minutes, the engineer of which did not discover the horses until he was near them, though the conductor jumped off the train, and the fireman deserted his post, and when the signal was given there was no person to apply the brakes. Held, that the railroad company was guilty of negligence. Ib. 11. Diligence of Passenger.-It is the duty of a person about to take passage on a railway train to inform himself when, where and how he can go or stop, according to the regulations of the railway company; and if he make a mistake, not induced by the company, against which ordinary diligence would have protected him, he has no remedy for the consequences against the company. The Ó. & M. R. W. Co. v. Applewhite, 540 12. Same.-Refusal to Stop Train Contrary to Regulations.-Where a person who had purchased of a railroad company a ticket for passage to a certain station, by his own fault or mistake got upon a train which, by the regulations of the company, did not stop at that station, he could not recover damages of the company for the refusal and failure of the conductor to stop the train and let him off at said station. Ib. REAL ESTATE, ACTION TO RECOVER. See NEW TRIAL, I. Pleading. In an action for the recovery of the possession of real estate, under an answer of general denial, all defences and all matters of reply may be given in evidence. Tracy et al. v. Kelley, 535 REFORMATORY INSTITUTION FOR WOMEN AND GIRLS. See CRIMINAL LAW, 18. REPORTS OF SUPREME COURT. Price. The limitation fixed by the act of March 13th, 1875, of the price at which the reports of the Supreme Court of Indiana published under that act may be sold by others than the reporter is valid; and no more than three dollars per copy can be recovered for such reports by any seller thereof, though the buyer may have contracted to pay a higher price. Welling v. Merrill et al., 350 SALE. Refusal to Accept Goods.-Conversion.-Statute of Limitations.-Under a contract for the sale of a quantity of wine, the vender delivered to a carrier, to be transported to the buyer, wine, which on its arrival the buyer refused to accept, because it was not of the quality contracted for, and the buyer, after corresponding with the vender, took the wine from the carrier, and stored it in his cellar, subject to the order of the vender. Said buyer died, and his successor in business sold the wine to other persons. Held, that the property in the wine did not pass to said buyer, the administrator of whose estate would not be liable therefor to the vender; but said successor of the buyer was liable to said vender for the wrongful conversion. Held, also, that the statute of limitations did not commence to run against said vender in favor of said successor of the buyer until the time of the conversion. Bishplinghoff et al. v. Bauer, 519 SCHOOL CORPORATION. See TOWNSHIP, I, 2. Parties.-An action to recover for materials furnished and services rendered by the plaintiff in the erection of a school-house, under the employment of the school trustees of a city, should be brought, not against such trustees, but against the school corporation, by the name and style of "The School City of," filling the blank with the name of the city. Sims et al. v. McClure et al., 267 SCHOOL LAW. Amendment of Statute.-The act of March 8th, 1873, amending sections 33, 37, 39 and 43 of the common school law of March 6th, 1865, is still in force, and the act of March 9th, 1875, purporting to amend the same sections (which, having been amended by said act of 1873, had ceased to exist, and therefore were not subject to amendment), is void. The Board of Comm'rs of Marion Co. v. Smith, 420 I. SHERIFF'S SALE. See EVIDENCE, 8. Where the rents and Redemption of Real Estate. Rents and Profits. profits of real estate for a term of years, not exceeding seven years, are sold by the sheriff on execution, the interest so sold may be redeemed within one year from the date of the sale, under the provisions of the act of June 4th, 1861, 2 G. & H. 251, and the purchaser at such sale is .not entitled to possession during such period; the provisions of said act being applicable in such case, as well as where the fee simple is so sold. Ragsdale et al. v. Mathes, 495 2. Property Sold Subject to Incumbrance.—Redemption Law of 1861. — The provision of the first clause of section 452, 2 G. & H. 244, that "when any property shall be sold subject to liens and incumbrances, the purchaser may pay the liens and incumbrances, and hold the property discharged from all claims of the execution-defendant," is not repealed by the redemption, law of 1861, 2 G. & H. 251, so far as it affects the right of redemption existing by the general principles of law and held by one not a party to the judgment on which the sale was made. Gatling v. Dunn et al., 498 Same.-Sale Under Junior Judgment. Certain real estate subject to the lien of two judgments, rendered in favor of different plaintiffs at different times, against the owner of such real estate, was sold on execution issued on the junior judgment to one not a party to either judgment, 3. |