The appellee was permitted to prove that after the accident occurred the appellant changed and repaired the crossing. This was error. Evidence of repairs made after an injury has been sustained is incompetent to show antecedent negligence. This question was carefully considered by the supreme court of Minnesota in the case of Morse v. Railway Co., 30 Minn. 465, 16 N. W. Rep. 358, and three of the earlier decisions of that court were overruled. In the course of the opinion in that case it was said: "But, on mature reflection, we have concluded that evidence of this kind ought not to be admitted under any circumstances, and that the rule heretofore adopted by this court is on principle wrong, not for the reason given by some courts that the acts of the employes in making such repairs are not admissible against their principals, but upon the broader ground that such acts afford no legitimate basis for construing such an act as an admission of previous neglect of duty. A person may have exercised all the care which the law required, and yet, in the light of the new experience, after an unexpected accident has occurred, and as a measure of extreme caution, he may adopt additional safeguards. The more careful a person is the more regard he has for the lives of others, the more likely he would be to do so, and it would seem to be unjust that he could not do so without being liable to have such acts construed as an admission of prior negligence. We think such a rule puts an unfair interpretation upon human conduct, and virtually holds out an inducement for continued negligence." The authorities are collected and discussed in the case of Nalley v. Carpet Co., 51 Conn. 524, and it was there said: "The fact that an accident has happened, and a person has been injured, immediately puts a party on a higher plane of diligence and duty, from which he acts with a view of preventing the possibility of a similar accident, which should operate to commend rather than condemn the person so acting. If the subsequent act is made to reflect back upon the prior one, although it is done upon the theory that it is a mere admission, yet it virtually introduces into the transaction a new element and test of negligence, which has no business there, not being in existence at the time." The question received consideration in the very recent case of Hodges v. Percival, (Ill.) ante, 423, and in the course of the discussion the court said: "The happening of an accident may inspire a party with greater diligence to prevent a repetition of a similar occurrence, but the exercise of such increased diligence ought not, necessarily, to be regarded as tantamount to a confession of past neglect." The rule asserted in the cases from which we have quoted is declared in many other cases. Dougan v. Transportation Co., 56 N. Y.1; Baird v. Daly, 68 N. Y. 547; Dale v. Railroad Co., 73 N. Y. 471; Salters v. Canal Co., 3 Hun, 338; Payne v. Railroad Co., 9 Hun, 526; Cramer v. Burlington, 45 Iowa, 627; Hudson v. Railroad Co., 59 Iowa, 581, 13 N. W. Rep. 735; Ely v. Railroad Co., 77 Mo. 34.

The rule stated and enforced in the cases referred to is the only one that can be de

fended on principle. To declare the evidence competent is to offer an inducement to omit the use of such care as the new information may suggest, and to deter persons from doing what the new experience informs them may be done to prevent the possibility of future accidents. The effect of declaring such evidence competent is to inform a defendant that if he makes changes or repairs he does it under penalty, for, if the evidence is competent, it operates as a confession that he was guilty of a prior wrong. If it is competent, then it would be the duty of the court to charge the jury that they must regard the making of subsequent repairs as evidence of antecedent negligence, and this, certainly, would violate settled principles; for it is what occurs prior to the action, and not what happens afterwards, that determines whether there has or has not been a culpable breach of duty. If, for example, the owner of a mill or factory repairs or improves after an accident has happened, so as to prevent the possibility of future accidents, the just inference is, not that he was previously guilty of negligence, but that, prompted by humane motives and influenced by the new information supplied by the fact that an accident has happened, he has exerted extraordinary care and taken such precautionary measures as render it impossible that any one should be injured in the future. It is unjustly reversing the presumption to hold that such an owner improves or repairs because he was at some time anterior to the time of making the improvements or repairs guilty of an actionable wrong. True policy and sound reason require that men should be encouraged to improve or repair, and not be deterred from it by the fear that, if they do so, their acts will be construed into an admission that they had been wrong-doers. A rule which so operates as to deter men from profiting by experience, and availing themselves of new information, has nothing to commend it, for it is neither expedient norjust. Accidents do happen despite the utmost care and diligence, but, with very rare exceptions, the happening of an accident does not of itself supply grounds for inferring negligence. It is common knowledge that accidents occur which even the highest degree of care can neither anticipate nor prevent; but in cases where an extraordinary accident happens, which ordinary prudence could not have foreseen or anticipated, neither a natural nor an artificial person is liable for a failure to exercise extraordinary care. Railroad Co. v. Locke, 112 Ind. 404, 14 N. E. Rep. 391.

The law does not, as a general rule, require any one to exercise extraordinary care or vigilance. The question in this case, and in all others like it, is whether the defendant prior to the accident used due care; and whether due care was or was not used must be determined by the precedent facts and attendant circumstances, not from what subsequently occurs. If a person does all that is reasonable under the facts as they exist and are known at the time of the injury, or at some antecedent time, he is not a wrongdoer; forno one is bound to anticipate and provide against unusual and unexpected

accidents. In Lane v. Atlantic Works, 111' Mass. 136, it was said: "The test is to be found in the probable injurious consequences which were to be anticipated, not in the number of subsequent events and agencies which might arise." Events may cast their shadows before, so as to render an act wrong, but they cannot cast them backward, over an act not wrong when it was performed, and make it a tortious one. The fact that the happening of an accident may convey information producing a conviction or belief that, had extraordinary precaution been taken, the injury would have been prevented, does not legitimately tend to prove that ordinary care and vigilance were not exercised. All may be done that ordinary care requires, and yet a person, satisfied by experience that a higher degree of care may insure absolute safety, may employ extraordinary | means to prevent accidents in the future. In doing this he does what is commendable, and, certainly, he ought not to be restrained or checked by the fear that, if he does resort to unusual means to insure safety, he may be treated as one who confesses that he was a wrong-doer when the accident occurred. It is unjustly burdening one who, influenced by the light supplied by events, resorts to greater precautions to insure the safety of others. The incidental remark made in the case of City of Goshen v. England, 119 Ind. 368, 21 N. E. Rep. 977, cannot be considered as an authoritative affirmation of the right to adduce evidence of subsequent repairs to prove precedent negligence. Judgment reversed, with instructions to award a new trial.

(122 Ind. 594)

OLD V. MOHLER.

(Supreme Court of Indiana. March 19, 1890.) PLEADING-COPY OF INSTRUMENT SUED ON.

Under Rev. St. Ind. 1881, § 362, which provides that, when any pleading is founded on a written instrument, such instrument, or a copy of it, must be filed with the pleading, a complaint for breach of covenant in a deed, where neither the deed nor a copy of it is filed, is insufficient to sustain a judgment by default, even when questioned for the first time on appeal.

Appeal from circuit court, Miami county; J. D. CONNER, Judge.

Rev. St. Ind. 1881, § 362, provides that, "when any pleading is founded on a written instrument or on account, the original, or a copy thereof, must be filed with the pleading.

W. E. Mowbray, for appellant. Brown & Antrim, for appellee.

terest. Old prosecutes this appeal, and makes the question that the complaint does not state facts sufficient to constitute a cause of action, in that neither the original nor a copy of the deed was exhibited with the complaint. The action is predicated upon a covenant against incumbrances supposed to have been contained in the deed. That instrument was therefore the foundation of the action, and it was essential that the original, or a copy, should have been filed with and made a part of the complaint. Craig v. Donovan, 63 Ind. 513; Wadkins v. Hill, 106 Ind. 543, 7 N. E. Rep. 253; Overly v. Tipton, 68 Ind. 410. As was, in effect, said in Brown v. State, 44 Ind. 222, the statute is imperative that the instrument, or a copy thereof, which constitutes the foundation of the action, must be filed with the pleading. Alleging that it is filed is not enough. It must in fact be filed, and if it is not the pleading is demurrable. Ashley v. Foreman, 85 Ind. 55, and cases cited; Montgomery v. Gorrell, 51 Ind. 309.

Where it is averred in a pleading that a copy of the instrument declared on is filed therewith, and made a part thereof, and an instrument corresponding with the one described in the pleading is found in the transcript at its appropriate place, the pleading will be held sufficient. Insurance Co. v. Hazelett, 105 Ind. 212, 4 N. E. Rep. 582; Hill v. Mayo, 73 Ind. 357. Where, however, as in the present case, no copy of the instrument appears in the record, the averment that a copy was filed will not make the pleading good against a demurrer. These propositions are not seriously controverted, but it is contended that, inasmuch as there was no demurrer to the complaint in the court below, the objection that no copy of the instrument sued on was filed is not available when made for the first time in this court, or by motion in arrest, after verdict. It is certainly true, as a general rule, that there is an "important and well-defined distinction, resting upon solid ground, between cases in which the attack is by demurrer and those in which it is by motion in arrest, or where the pleading is questioned for the first time in this court, after a judgment in the court below. Parker v. Clayton, 72 Ind. 307: Lassiter v. Jackman, 88 Ind. 118; School Tp. v. Hay, 107 Ind. 352, 8 N. E. Rep. 220; Eberhart v. Reister, 96 Ind. 478. Section 658, Rev. St. 1881, provides, in substance, that no judgment shall be reversed for any defect in form contained in the pleadings, etc., which by law might be amended by the court below, but such defects shall be deemed amended in the supreme court; and that no judgment shall be reversed where it shall appear to the court that the merits of the cause have been fairly tried and determined in the court below. It has often been held that the effect of this section is to prevent a reversal on appeal, because of the existence of defects in a complaint which would have rendered it insufficient as against a demurrer, but which may have been supplied by proof, and cured by the verdict. It is settled by many decisions that a complaint that is defective, on account of the failure of the pleader to set out the original or a

copy of a written instrument upon which the pleading is founded, will be cured by a verdict or finding. Westfall v. Stark, 24 Ind. 377; Scott v. Zartman, 61 Ind. 328; School Tp. v. Hay, supra, and cases cited. Where, however, a fact or averment is entirely omitted which is essential to the right of action,-as where, in an action for a personal injury, there was no averment that the plaintiff was free from fault,-the defect will not be cured by a verdict. Eberhart v. Reister, 96 Ind. 478; Mansur v. Streight, 103 Ind. 358, 3 N. E. Rep. 112; Peters v. Banta, 120 Ind. 416, 22 N. E. Rep. 95, and ante, 84.

It will be presumed, to the extent that the plaintiff's cause of action was defectively or inaccurately stated, no fact essential to the cause of action being omitted, that the facts imperfectly stated, which were necessary to support the action, were proved at the trial, and the complaint will be considered as having been amended to correspond with the proof. This rule has, however, no application to a case where judgment has been taken by default. One who takes a judgment by default must, on an appeal seasonably taken, be content to stand upon his complaint as he makes it; for, in considering whether or not it is sufficient to support a judgment so taken, the court cannot assume that anything was proved beyond what was alleged in the complaint, nor can the complaint be considered as having been amended to meet the proof. In the language of a standard author: "A default cures no defect in the declaration which would not have been aided on a general demurrer; for no fact can be presumed to have been proved when no trial has been had and no proof exhibited. And therefore a motion in arrest of judgment for the insufficiency of the declaration, after a default, operates precisely as a general demurrer to the declaration would have operated." Gould, Pl. 471. Mr. Bliss, in his work on Code Pleading, (section 438,) after enumerating a variety of defects in pleadings which are held to be cured by intendment after verdict, concludes by saying that "in all these instances, and some others which are given as illustrations, the defects are held to be cured by verdict, although they would have been fatal on demurrer or on default." In Collins v. Gibbs, 2 Burrows, 899, decided in 1759, Lord MANSFIELD said: "This is a motion made by the defendant in arrest of a judgment by default; so that it comes before the court exactly as if it had been upon demurrer, and is not like the cases of objections to judgments after verdict." In Abbe v. Marr, 14 Cal. 210, the court said: "An action by default can no more be taken, under our practice act, when the complaint shows no legal cause of action, than it can be taken over a general demurrer." Strock v. Com., 90 Pa. St. 272. As is correctly stated in Smith v. Carley, 8 Ind. 451, as a general rule, a default regularly taken admits the cause of action, but the declaration or complaint must contain such a statement of fact as will, when admitted, authorize a Judgment against the defendant. In the case last cited it was held that a judgment by default could not be sustained on ap

|-peal where the declaration on a promis. sory note was defective, in that it was not alleged therein that the defendant was the maker of the note, and that the note remained unpaid. A judgment taken by default on a defective complaint is good, as against a collateral attack, but is liable to be reversed on appeal, and it is not essential that there should have been a motion in the court below to set it aside. Wright v. Norris, 40 Ind. 247; Monroe v. Strader, 33 Ind. 111; Odell v. Carpenter, 71 Ind. 463; Baldwin v. Humphrey, 75 Ind. 153.

The foundation of the plaintiff's cause of action in the present case was a deed which he alleges in his complaint contained full covenants of warranty. In the absence of the deed, the original or a copy of which the statute imperatively requires should be filed with the complaint, the ababove averment was a mere conclusion of the pleader. If the deed was in the statutory form, then the law imported into it a covenant against incumbrances. If it was not, the liability of the defendant depended upon the covenants actually written therein, and upon these subjects the instrument which constitutes the foundation of the action controls the averments in the complaint. In the absence of the instrument, it is clear that the complaint did not state facts sufficient to constitute a cause of action, or to support a judgment rendered upon a default, when tested by an appeal. A defendant is not bound to answer a complaint which, upon its face, states no cause of action against him. He may rely upon the court not to render an erroneous judgment against him, and, if such a judgment is rendered upon default. he may have it reversed upon appeal. Mathew v. Furnace Co., 1 West. Law Month. 351. The rule seems to be settled that any defect in a complaint which would have been avail able as a ground of demurrer before judg. ment may be taken advantage of on appeal after judgment by default. Judgment reversed, with costs.

COFFEY, J., dissents.

(123 Ind. 30)

STATE ex rel. KAHN v. WOODWARD. (Supreme Court of Indiana. March 19, 1890.) JAIL AND JAILER-IMPRISONMENT.

Under Rev. St. Ind. 1881, § 992, allowing prisoners to be discharged in certain cases after having been "imprisoned in the jail of the county for a period of 12 months," the facts that a prisoner, while in the custody of the sheriff, was not locked in his cell at night, and that during part of the year he worked upon the streets under the sheriff's direction, do not show that he was not "imprisoned.

Appeal from circuit court, Wells county; H. B. SAYLER, Jugde.

Dailey, Mock & Simmons, for appellant. France & Lee, for appellee.

OLDS, J. This was a prosecution for bastardy, and the defendant found to be the father of the child, and the court ordered the payment of the sum of $600 to the relatrix for the maintenance of the child, and, on the failure of the defendant to pay or replevy the judgment, he was committed to the jail of Wells county.

After the expiration of one year the defendant made an application to be released, on the grounds that he had been imprisoned the county jail one year, and that he was unable to pay or replevy the judgment. The relatrix appeared, and objected to his discharge, on the grounds that he had not been confined in jail one year. The court heard evidence in support of the application, and ordered the release of the defendant, and from this order and judgment of the court the appellant appeals, and contends that the court erred in sustaining the motion or application of the defendant for his release. It is contended by counsel for appellant that the evidence in support of the application shows the fact to be that the defendant had not been imprisoned in the county jail for one year, but only for a few weeks, and that the remainder of the time he had his liberty, and went and came at will, associated with the family of the sheriff, and was only confined in jail, or under lock and key, as were the family, at night-time; being able to leave the house at any time at will. We are not favored with a brief on behalf of the appellee. The statute1 provides that, "should the defendant fail to replevy or pay said judgment, and in default thereof be committed to jail, and upon proof thereof being made to the court that the defendant has been imprisoned in the jail of the county for a period of twelve months from the date of this imprisonment, and that he is unable to pay or replevy the same, he may be released from imprisonment by an order of the court, made at any regular term of said court, which order of release shall be entered," etc. This statute contemplates a motion or application to be made for the release of the defendant, and that the court shall hear proof in support of such application; and if it shall affirmatively appear that the defendant has been imprisoned in the county jail for the period of one year, and is unable to pay or replevy the judgment, the court shall make an order discharging him. If there is any evidence tending to support the finding of the court the case must be affirmed. We have read the evidence, and think counsel are in error in their construction. The evidence shows the defendant to have been under the control of the sheriff all the time, and that he always ate his meals within the prison part of the jail; that, by reason of having more prisoners than that portion of the jail constructed exclusively for male prisoners would accommodate, the sheriff changed defendant's place of sleeping to the portion of the jail constructed for females, and he continued to sleep in that part of the jail. The defendant was trusty, and was not locked within the cell at night; but to escape from that part of the prison in which he slept it was necessary to pass through the office, and that the office was locked at night, so that the defendant could not escape. The evidence further shows that from October 2d until in the following March the defendant was constantly confined in jail; that during the remainder of the year he worked under the direction and control of the sheriff, upon

Rev. St. Ind. 1881, § 992.

the streets and other public work, without compensation. There is no evidence to show whether or not the work was done under and by authority of the board of county commissioners. The law authorizes prisoners to be put at labor under such rules and regulations as the board of county commissioners shall prescribe. Nothing appearing to the contrary, the presumption is that the sheriff discharged his duty according to law, and that, therefore, he only worked the prisoners in his custody under a proper order of the board. We think the evidence supports the finding of the court that the defendant had been imprisoned in the county jail for one year. It was necessary to show imprisonment for one year. This would be shown by proof of the order, and that the sheriff took him into custody; as the presumption would be that the sheriff discharged his duty, and that the prisoner continued in custody until he was discharged, and the sheriff would be liable if he allowed the prisoner to escape. State v. Hamilton, 33 Ind. 502. Possibly, if the defendant escaped and remained at large, or fraudulently procured his liberty, he would not be entitled to relief under the statute. The statute needs no interpretation. It means what its terms purport,-that before he shall be entitled to his discharge it shall have been proven that he "has been imprisoned in the jail of the county for a period of twelve months from the date of his imprisonment. Imprison" means to confine; to incarcerate; to shut up, or restrain one of his liberty. See Webster and Worcester. But, as the statute authorizes the working of prisoners, the sheriff is authorized, under a proper order, to put the prisoner at work; and while at work, under the control and supervision of the sheriff, the prisoner would be, in contemplation of law, in the custody of the sheriff, and when he had remained in the custody of the sheriff for the one year he would be entitled to be discharged. The sheriff has no authority to allow prisoners committed to the county jail, and placed in his custody, to run at large, and grant to them their liberty in violation of the order and judgment of the court; but the prisoner is not responsible for the sheriff's neglect of duty. When he was taken into custody by the sheriff, it was the duty of the sheriff to confine him in jail. The prisoner was in the custody of the sheriff, and the sheriff had it in his power at any time to keep him confined in jail, and the prisoner could not enter the prison without the sheriff's authority; so that the evidence, in any event, shows no more than a failure of the sheriff to discharge his duty, and the defendant cannot be made to suffer the penalty. There is no error in the record. Judgment affirmed, with costs.

(123 Ind. 35) EVERROAD et al. v. SCHWARTZKOPF. (Supreme Court of Indiana. March 20, 1890.) PLEADING-ANSWER.

1. Where the first paragraph of a complaint is for services and materials furnished under a special contract, and the second seeks to recover for such services and materials under a quantum meruit, an answer setting up breach of the special contract,