injury, to the best of his ability, but without stat- on the note in suit was made.-Schmidt v. Packing how often he passed over the track, the ex- ard, (Ind. Sup.) 31 N. E. 944. tent of his examination, or whether he had ex- Checks-Liability of drawer. amined this particular bolt. Held, that the presumption of negligence arising from the injury was not allayed by defendant's evidence, and the direction of a verdict, therefore, in its favor, was erroneous. 9 N. Y. S. 708, reversed. -Volkmar v. Manhattan Ry. Co., (N. Y. App.) 31 N. E. 870. NEGOTIABLE INSTRUMENTS. Payment by note, see "Payment," 2-4. * * * 1. An instrument properly dated and signed, which read: "April 1, 1889, for value received, pay to or order $400, with 8 per cent. interest after maturity until paid. Payable at Bank, "-is a note, and negotia ble, under Rev. St. 1881, § 5501, as a written instrument promising to pay money. -Bunting v. Mick, (Ind. App.) 31 N. É. 378; Id. 1055. Indorsement and transfer-In general. 2. When the back of a note is covered by various indorsements, an assignment of the note, written on a piece of paper pasted to the note, will pass the legal title.-Brown v. Bookstaver, (Ill. Sup.) 31 N. E. 17. 10. Where a bank upon which a check is drawn fails before payment thereof, though it is presented in due season, and the drawer of the check in his own behalf, or for his own benefit, had the check certified before delivering it to the payee, he is not discharged from liability on the check.-Minot v. Russ, (Mass.) 31 N. E. 489; Head v. Hornblower, Id. 11. The drawer is discharged if the payee or holder of the check, in his own behalf or for his own benefit, got the check certified instead of getting it paid. -Minot v. Russ, (Mass.) 31 N. E. 489; Head v. Hornblower, Id. Demand. 12. Where the drawer of checks had no funds in the hands of the bank, and knew they would not be paid if presented, it was not necessary, before commencing action on the checks, to present them to the bank for payment.-Beauregard v. Knowlton, (Mass) 31 N. Ě. 389. 13. In an action by the purchaser against the drawer of drafts, payment of which was refused by reason of the suspension of the drawee when presented, 2 and 5 months after issue, though they could have been sent through the mail in 10 days, plaintiff is guilty of laches, in the absence 3. Where it appears on writ of error that a of evidence that they had been in circulation, note has been assigned by a writing pasted to and presentment delayed on that account.-Anthe note, and that before such assignment many galetos v. Meridian Nat. Bank, (Ind. App.) 31 N. indorsements had been made on the note, it will E. 368. be presumed that the prior indorsements so cov14. A memorandum issued with a draft proered the back of the note as to render it neces-viding for issue of a duplicate after six months, sary to attach the paper in order to make a further indorsement.-Brown v. Bookstaver, (Ill. Sup.) 31 N. E. 17. Bona fide purchasers. 4. A second indorsee of a note, who takes it after maturity, takes it free from any defense that could not have been urged as against the first indorsee. -Matson v. Alley, (Ill. Sup.) 31 N. E. 419; Gould v. Superior Nickel Works, Id. 5. Rev. St. 1881, § 5119, providing that "a married woman shall not enter into any contract of suretyship, whether as indorser, guarantor, or in any other manner, and such contract as to her shall be void, " invalidates a note executed by a married woman as surety, in the hands of an innocent purchaser for value, acquired in the regular course of trade, unless the woman has by her conduct or representations estopped herself to claim the benefit of the statute. MeBRIDE, J., dissenting. Voreis v. Nussbaum, (Ind. Sup.) 31 N. E. 70. 6. In an action on a note, where the defense is fraud in its inception, the burden of alleging and proving purchase in good faith and want of knowledge of the facts is with plaintiff.-Kain v. Bare, (Ind. App.) 31 N. E. 205. 7. A bona fide holder of a postdated check who was told at the time he bought it from the payee that it had been given on an agreemeut that the payee should not use it until the day of its date is not bound to understand by the word "use" that the check was not to be transferred before that date.-Bill v. Stewart, (Mass.) 31 N. E. 356. 8. An indorsee of a note before maturity, who obtains the note in good faith, takes it free from defense of want of consideration, although he might by inquiry have ascertained the consideration.-Matson v. Alley, (Ill. Sup.) 31 N. E. 419; Gould v. Superior Nickel Works, Id. 9. In an action on a note by the administrator of the payee, the latter's brother filed a cross complaint, alleging that the note had been indorsed to himself by the deceased in his life time, and the issue was as to the ownership of such note. Held, that evidence that deceased on the same day had made similar indorsements on notes other than the one in suit, and that he had retained them in his possession, and had collected them at or after maturity, is admissible, as it shows the intention with which the indorsement if the original were lost or destroyed without presentation for payment, does not unqualifiedly give six months for presentment, or relieve from the result of delay. -Angaletos v. Meridian Nat Bank, (Ind. App.) 31 N. E. 368. Actions on. 15. In an action on a renewal note, the fact that defendants made a payment to plaintiff on the original note, and gave a renewal note for the balance, does not prevent defendants setting up the defense of a gambling contract, plaintiff having had full knowledge of all the facts of the original transaction. -Kain v. Bare, (Ind. App.) 31 N. E. 205. 16. In an action on a note brought by an indorser against the maker, the note, and not the indorsement, is the contract constituting the cause of action; and a general averment, therefore, of indorsement in the complaint, is sufficient, without setting out the indorsement itself. -Bascom v. Toner, (Ind. App.) 31 N. E. 856. 17. Where a note is filed with the complaint as an exhibit, and shows that it is long past due, it is not necessary that the complaint allege that the note is due.-Taylor v. Hearn, (Ind. Sup.) 31 N. E. 201. 18. In a suit on a note, an allegation that plaintiff indorsed the note to W., who afterwards sued plaintiff on the indorsement, but that before judgment plaintiff paid W. the amount of the note, with interest and costs, including attor neys' fees, sufficiently showed that the note had been assigned to plaintiff before he sued thereon. -Taylor v. Hearn, (Ind. Sup.) 31 N. E. 201. 19. Though defendants are not liable for attorneys' fees paid by plaintiff to W., that does not make the complaint bad on demurrer, where it states a cause of action for some relief.-Taylor v. Hearn, (Ind. Sup.) 31 N. E. 201. 20. In an action on a note which provides for an attorney's fee in its collection the value of such services may be shown without a specific averment that an attorney was employed. Harvey v. Baldwin, 24 N. E. 347, 26 N. E. 222, 124 Ind. 59, followed.-Stames v. Schofield, (Ind. App.) 31 N. E. 450. 21. Since the holder of negotiable paper, to which the maker has a valid defense against the original payee, has the burden of showing that he is a bona fide holder for value without notice of such defense, in an action on a note by an in dorsee, where the complaint does not allege that the transfer was made without notice of any defenses, defendant may plead his defenses without alleging notice thereof to plaintiff.-Bunting v. Mick, (Ind. App.) 31 N. E. 378; Id. 1055. Evidence. 22. In an action against an administrator on a note signed by intestate and another person, the defense being that the note was a forgery, it is competent, after the introduction of evidence tending to show the genuineness of intestate's signature, to prove his statements to the effect that he had helped the other maker of the note, and that he did not think he would lose anything by it. -Bevan v. Atlanta Nat. Bank, (Ill. Sup.) 31 N. E. 679. 23. The indorsee of a note is not bound to offer the note in evidence, in an action thereon, or to allege or prove the indorsement, where it is shown by the evidence given that he is in fact the bona fide owner, and the indorser is made a party defendant.- Bascom v. Toner, (Ind. App.) 31 N. E. 856. Instructions. 24. Where, in suit by the payee against the maker of a note, defendant claims that the note was a gift, without consideration, and plaintiff testifies that she had a claim against defend able lack of diligence.-Richter v. Meyer, (Ind. App.) 31 N. E. 582. 6. An affidavit on motion for a new trial on the ground of newly-discovered evidence must allege not merely due diligence, but the facts relied upon as constituting due diligence.-State v. Taylor, (Ind. App.) 31 N. E. 543. at a railroad crossing, a new trial, on the ground 7. In an action for killing plaintiff's horses of newly-discovered evidence, will not be granted defendant after a verdict has been rendered for plaintiff, where it appears the proposed witness, though living near the crossing, was not interviewed by defendant prior to the trial.-Chicago & E. I. R. Co. v. McKeehan, (Ind. App.) 31 N. E. 831. S. The neglect of defendant to interview a possible witness in his behalf is not excused on the ground that such witness had agreed to conceal his information from defendant.-Chicago & E. I. R. Co. v. McKeehan, (Ind. App.) 31 N. E. 831. Non Compos Mentis. See "Insanity." Non Obstante Veredicto. ant's wife, of whose estate he was administrator, See "Judgment," 3-5. and that defendant gave the note in settlement of that claim, it is proper to instruct that, if defendant intended the note as a gift, it was with Nonsuit. out consideration, unless by his words and acts See "Practice in Civil Cases," 2, 3. he gave plaintiff cause to believe, and she was thereby led to believe, that the note was given In settlement of her claim.-Nye v. Chace, 31 N. E. 736, 139 Mass. 379. NEW TRIAL. Misconduct of counsel. 1. Where defendant's attorney in his opening statement in a bastardy proceeding informs the jury that the case had been already tried before the mayor, who found the defendant not guilty, and that it was then pending on appeal by the relatrix, and, upon exceptance of the relatrix's attorney, the court instructs the jury that the said statement is improper, and that they have nothing to do with the question as to how the case came there, nor with the previous decision, and no further exception is taken to any action of the court relative thereto, there is no erros in refusing a new trial for such cause.-State v. Taylor, (Ind. App.) 31 N. E. 543. Newly-discovered evidence. 2. A new trial will not be granted on motion of relatrix in a bastardy proceeding upon the ground that a certain person would swear on another trial that one of the defendant's witnesses had stated in his presence the day after the trial that he had made $15 out of the case, and could have gotten another into making something, but thought he would better not.-State v. Taylor, (Ind. App.) 31 N. E. 543. 3. It is no ground for a new trial that a receipt which was mislaid at the time of the trial has since been found, where the substance of said receipt was proved at the trial, and its effect as evidence is merely cumulative.-Wisconsin Cent. R. Co. v. Ross, (İll. Sup.) 31 N. E. 412. 4. For the admission of newly-discovered ev idence, the applicant must make out a clear case of diligence, and particularly that all reasonable efforts to discover it before trial were made; and it is not sufficient to allege a general inquiry of all whom he had reason to believe knew anything about the controversy.-Richter v. Meyer, (Ind. App.) 31 N. E. 582. 5. An affidavit of newly-discovered evidence, showing that the witness' presence at a conversation between the parties had been forgotten, and her evidence had not then been sought, owing to unfriendly relations, discloses an inexcus Notes. See "Negotiable Instruments." Notice. By publication, see "Writs," 3, 4. of appeal, see "Appeal," 10, 11. of lien, see "Mechanics' Liens," 3-5. To quit, see "Entry, Writ of," 3; "Trespass," 5. NUISANCE. What constitutes. 1. The charter of the city of Rochester empowers the common council to provide by ordinance for filling up, draining, and cleansing any damp, foul, or unwholesome yards, slips, or cellars. An ordinance provides that every owner or occupant of a stone quarry shall either cause the same to be filled level with the ground, or the water therein to be drained. Held, that the owner of an abandoned quarry was liable for the penalty prescribed where he permitted a pond to stand, which became stagnant during summer, emitted sickening odors, and in which dead animals had been frequently seen. Bradley, Brown, and Landon, JJ., dissenting. 10 N. Y. S. 499, reversed.-City of Rochester v. Simpson, (N. Y. App.) 31 N. E. 871. 2. Where the question at issue is whether a sewer which terminates in a highway at a place where there is no natural water course is a nuisance, the fact that the mouth of the sewer is lower than the roadbed is immaterial.-Dierks V. Commissioners of Highways Tp. Addison, (Ill. Sup.) 31 N. E. 496. 3. A complaint for an injunction to restrain defendant from "shooting" a gas well on his land adjoining the land of plaintiff, and within 200 feet of the residence of himself and family, with nitroglycerin, which alleges that by shooting the well, and by the accumulation of a large amount of nitroglycerin for that purpose, plaintiff's dwelling and the lives of himself and family will be endangered, if the facts stated are true, shows a private nuisance, and alleges facts sufficient to warrant the granting of an injunction. -Tyner v. People's Gas Co., (Ind. Sup.) 31 N. E. 61. trustees cast their ballots for a person, he is duly elected, the other trustees being properly treated as present and not voting.-State v. Vanosdal, (Ind. Sup.) 31 N. E. 79. 4. A complaint which charges an injury to the use and enjoyment of plaintiff's dwelling, and the depreciation in value consequent upon the dust, smoke, and offensive odors resulting from the operation of a steam engine by defendant company in pulling logs, shows an injury distinct from that of the general public, entitling the plaintiff to relief by injunction.-Adams v. Ohio See "Evidence," 26-34. Falls Car Co., (Ind. Sup.) 31 N. E. 57. Who liable. 5. A grantee of premises subject to a lease is not liable for a nuisance created and continued by the tenant of the grantor, if such grantee had no power to abate the nuisance.-Lufkin v. Zane, (Mass.) 31 N. E. 757. Injunction. Parol Evidence. PARTIES. Competency as witness, see "Witness," 4. Where a suit is brought in the name of the 6. Where a sewer which drains the greater receiver to recover property of the corporation part of a village flows in an unnatural course, which has never been in his possession, the proand empties upon a farm, creating such a stench ceedings may be amended by substituting the that a person cannot work upon the farm in that name of the corporation for that of the receiver. locality without vomiting, such sewer consti--Wilson v. Welch, (Mass.) 81 N. E. 712. tutes a nuisance, which a court of equity will enjoin without a previous adjudication in an action at law. -Dierks v. Commissioners of Highways Tp. Addison, (Ill. Sup.) 31 N. E. 496. Oath. Form of, see "Taxation," 18. Obstructions. Of highway, see "Highways," 11-14. OFFICE AND OFFICER. See, also, "Judge:" "Justices of the Peace;" "Re- A statute, whatever terms it may employ, the only effect of which is to increase the salary attached to a public office, contravenes Const. art. 2, 20, in so far as it may affect the salary of an incumbent of the office during the term he was serving when the statute was enacted.State v. Raine, (Ohio Sup.) 31 N. E. 741. Opinion Evidence. See "Evidence," 18, 19. Ordinance. See "Municipal Corporations," 3-6. Ouster. PARTNERSHIP. Accounting, see "Witness," 7. Assignment by firm, see "Assignment for Bene- 1. Proof that complainant and defendant made an agreement for the purchase for their joint benefit of a single tract of land, and the erection of a building thereon; that the land was bought and the building erected by defendant in his own name with his own money, and on his own responsibility; and that complainant advanced no money, and assumed no liability on account of the transaction,-is insufficient to show that they were copartners.-Morton v. Nelson, (Ill. Sup.) 31 N. E. 168. 2. A contract which shows merely that defendants are to have the sale of all the melons shipped to a certain city by an association of which the plaintiff is a member, and that the latter is to receive a certain commission on the gross sales, but not that he has any right to control or interfere with the business of defendants, or that his commissions are in any way conditional upon the profits, does not indicate a partnership; and the plaintiff, therefore, is entitled, irrespective of losses made by defendants, to recover his commissions. Lawrence v. Snow, (Mass.) 31 N. F. 486. Dissolution and accounting. 3. In an action for an accounting between partners, it appeared that, at plaintiff's request, defendant placed on a lot of lumber a value which he would give or take. Plaintiff refused to accept the offer, and, without plaintiff's consent, defendant appropriated the lumber. Held, By cotenant, see "Tenancy in Common and that the sale at the value given was not completed, Joint Tenancy." and defendant was liable for its actual value. 16 N. Y. S. 772, affirmed.-Turner v. Weston, (N. Y. App.) 31 N. E. 91; Id. 626. 4. In an action for an accounting between partners a claim against plaintiff, which is independent of the partnership dealings, will not be allowed where it is not pleaded as a counterclaim. 16 N. Y. S. 772. affirmed.-Turner v. Weston, (N. Y. App.) 31 N. E. 91; Id. 626. Firm and private creditors. 5. Land purchased with the firm assets, but for the individual benefit of the partners, is liable for the individual debts of a partner to the extent of his interest, as between himself and creditor. -Chandler v. Jessup, (Ind Sup.) 31 N. E. 1109. Liability of retiring partners to firm creditors. 6. Pub. St. c. 157, § 125, provides that when, on dissolution of a firm, one of the partners agrees to pay any outstanding debts, and the party so agreeing has become insolvent, such debts may, if the creditors so elect, be proved against the estate of such insolvent debtor, and the allowance thereof shall be a discharge of the party origi nally liable therefor. Held, where plaintiff so of a party wall, the center line of which should elected and proved against the partners who had coincide with the dividing line of the lots, one assumed the outstanding firm debts, that defend-half the expense to be repaid by the other ant, a party originally liable, was discharged, whenever he should use the wall, the instrueven though plaintiff did not know when he made ment produced by plaintiff, though reciting its his election and proof that the partners against execution by both parties, was executed by only whom he proved had agreed to pay the outstand- one, defendant's predecessor in title. Held that, ing debts, and subsequently, upon learning such notwithstanding this, the fact that the wall fact, had his proof expunged from the insol- called for was erected by plaintiff's predecessor, vency proceedings.-Powers v. Mann, (Mass.) 31 and was acquiesced in, and that in the chain N. E. 10. of defendant's title the conveyances were made subject to the agreement, was sufficient proof of the making of the agreement.-Mott v. Oppenheimer, (N. Y. App.) 31 N. E. 1097. Rights and liabilities of surviving part ner. 7. Testator and H., partners, agreed in writing that, in case of either's death, the business should be continued by the survivor for five years, the estate of the deceased partner to share in the profits and losses as decedent would have shared had he lived. Afterwards, by will, he gave his estate to his executors in trust for his children, without mentioning the firm business, with power to continue any existing investments. Held that, though the partnership ended with testator's death, the executors had a right to acquiesce in the continuation of the firm business by H., as survivor, for five years, and therefore a mortgage given by H., as survivor, within that time, on the firm real estate, to secure a loan made to him for use in the firm business, to which loan and mortgage the executors consented, was a lien on the property See "Poor and Poor Laws.” superior to the lien in favor of testator's estate. 4 N. Y. S. 823, affirmed.-Bell v. Skellen, (N. Y. App.) 31 N. E. 918. 3. Defendant's grantor having taken sub- Contract of carriage, see "Carriers," 6-8. Pauper. PAYMENT. See, also, "Release and Discharge." 8. Where a surviving partner continues the firm business after the death of the other partner, in accordance with the partnership agree ment, and with the acquiescence of decedent's executors, and secures a loan made to him for use in the firm business by a mortgage, as survivor, on the firm property, and by a mortgage on his individual property, the mortgage debt 1. During the years 1883 and 1884, plaintiff, as should be satisfied from the mortgaged firm attorney, performed certain services for defendproperty before subjecting the individual prop-ant, a railway company. January 1, 1885, defenderty of the survivor. 4 N. Y. S. 823, affirmed. Bell v. Skellen, (N. Y. App.) 31 N. E. 918. Limited partnerships. 9. Where the affidavit of a general partner, required by law to be filed with the certificate of a limited partnership before the firm can begin business, stated that the sum specified in the certificate to have been contributed by the spe cial partners had "been actually and in good faith paid in cash," whereas in fact the special partners, the day before the certificate and affidavit were filed, delivered their check to a general partner for their contribution, payable to the firm, which check was the next day presented to the bank and certified, and the bank charged its amount to the special partners, the statement in the affidavit, though the check was not actually paid until afterwards, is not false, within 4 Rev. St. (8th Ed.) p. 2493, § 8, providing that, if any false statements be made in the certificate or affidavit, all persons interested in the partnership shall be liable as general partners. 12 N. Y. S. 885, reversed.-White v. Eiseman, (N. Y. App.) 31 N. E. 276. PARTY WALLS. Payment for use. 1. In an action to restrain defendant from using a party wall except on payment of half its costs, "and for such other and further relief" as may seem just, it appearing that relief by way of injunction was not proper, but that plaintiff was entitled to such amount, and that defendant's premises were charged therewith, it was proper to decree that, unless payment be made, the premises should be sold therefor.Mott v. Oppenheimer, (N. Y. App.) 31 N. E. 1097. 2. In an action on an agreement providing for the erection by either of two adjoining lot owners, or their successors, at his own expense, ant's general counsel sent plaintiff an annual By note. 2. Taking a note for a debt does not operate as full payment, in the absence of an agreement to that effect.-Price v. Barnes, (Ind. App.) 31 N. E. 809. 3. In an action on a guardian's bond to recover an indebtedness due from the ward's estate, under a plea of payment, it appeared that the guardian gave plaintiff his individual note, and took plaintiff's receipt for the amount of the indebtedness. The guardian testified that "I told my sister [plaintiff] that if she would give me a receipt, so that I could use it in making my re port as guardian, I would pay her as soon as I was able." Held, that the evidence failed to show that the note was taken by plaintiff in full payment of the debt.-Price v. Barnes, (Ind. App.) 31 N. E. 809. 4. In an action on a guardian's bond to recover an indebtedness against the ward's estate, the answer states a valid defense, where it alleges that plaintiff accepted, in extinguishment of the debt, the individual note of the guardian.Price v. Barnes, (Ind. App.) 31 N. E. 809. Voluntary payment. 5. Where a police officer without a warrant arrests a person and requires him to pay money to insure his appearance, which money is paid to the city, as forfeited, and by it paid to the county, unless it is shown that the circumstances were such as to authorize the arrest without a warrant, the payment of the money is to be deemed an involuntary payment, and it may be recovered, in an action against the city, as money by it had and received for the use of the person so arrested. Reinhard v. City of Columbus, (Ohio | requires, not merely plaintiffs' initials, but their Sup.) 81 N. E. 35. Perjury. Christian names as well; and where these do not appear in the title, or elsewhere in any of the pleadings, and the defect is not cured in any manner, the complaint is bad on demurrer. As affecting credibility of witness, see "Wit- Bascom v. Toner, (Ind. App.) 31 N. E. 856. ness," 14. Demurrer. Personal Injuries. See "Negligence." Physicians. Competency as witness, see "Witness," 1, 2. PILOTS. Commissioners of pilots-Appointment and tenure. 1. Under Pub. St. c. 70, § 2, providing that commissioners of pilots for the harbor of Boston shall be appointed by the governor, with the advice and consent of the council, "and shall first be recommended by the trustees of the Boston Marine Society" unless they "refuse, decline, or are unable to make the recommendation," where, five days before the expiration of the term of a commissioner, another person is recommended by the trustees, the reappointment of the commissioner previously made by the governor and council is unauthorized.-Opinion of the Justices, 31 N. E. 634, 154 Mass. 603. 2. Such commissioners are within Acts 1887, c. 364, providing that officers appointed by the governor, with the advice and consent of the council, hold their offices until their successors have been duly appointed and qualified. Opinion of the Justices, 31 N. E. 634, 154 Mass. 603. PLEADING. See, also, "Mandamus," 8; "Negligence," Estoppel by, see "Estoppel," 5. In action on note, see "Negotiable Instruments," 15-21. In equity, see "Equity," 11. 5. Where defendant demurs "severally to each paragraph of the complaint as amended, because the same does not state facts sufficient to constitute a cause of action," the demurrer will be considered as addressed to each paragraph of the complaint. Baker v. Groves, 27 N. E. 640, 1 Ind. App. 522, distinguished.— Terre Haute & L. R. Co. v. Sherwood, (Iud. Sup.) 31 N. E. 781. 6. The fact that goods sold on an account are alleged, in an action therefor, to have been sold a certain person, while the caption of the bill of particulars, filed as an exhibit, states the account to have been with another, as agent for the said person, does not constitute such a variance as to render the complaint obnoxious to a demurrer; but the caption may be rejected as surplusage. Wellington v. Howard, (Ind. App.) 31 N. E. 852. tained on the ground that merely nominal dam- fense, "a demurrer alleging that the answer does Answer. 9. In an action against county commissioners for the death of plaintiff's intestate, caused by a 15-eral denial and by two affirmative paragraphs, one defective highway, defendants answered by a genof which alleged that the place where deceased was injured was on a public highway, not a free gravel road, and not a bridge or culvert on any highway in the county. The other paragraph al leged that before deceased reached the bridge one of his horses balked, and the wagon backed over the highway, and was overturned. The trial court sustained a demurrer to both these paraall the evidence that could have been adduced in support of these paragraphs was admissible under the general denial.-Board Com'rs Huntington County v. Huffman, (Ind. Sup.) 31 N. E. 570. Motion to make more specific. In suit for injunction, see "Injunction," 12. Negligence of master, see "Master and Serv-graphs. Held not prejudicial to defendants, as ant," 20. Particular actions, see "Libel and Slander," 7; "Quieting Title," 2. Statute of frauds, see "Frauds, Statute of," 10. General principles. 1. A general averment in a complaint that defendant corporation is the same that entered into the contract with plaintiff gives way to specific averments that defendant is a new corporation, organized by the purchasers at foreclosure sale.-Mayer v. Ft. Wayne, C. & L. R. Co., (Ind. Sup.) 31 N. E. 567. Declaration or petition. 2. A count in a declaration which sets out the furnishing of a house for the use of defendant's agent, and thus gives notice to defendant of the nature of the claim, is sufficient to sustain a finding in plaintiff's favor, though such count concludes as for money had and received, instead of for the use and occupation of the house.-Boston & L. R. Corp. v. Nashua & L. R. Corp., (Mass.) 31 N. E. 1067. 3. The complaint in an action to establish a right of way and to enjoin its obstruction must contain a description of the land over which it is claimed, and its omission is not cured by reference to so-called "exhibits" as parts of the complaint, containing descriptions of the land.Bayless v. Price, (Ind. Sup.) 31 N. E. 88. 4. Rev. St. § 338, declaring that the title of a cause, contained in the complaint, shall specify, among other things, the "names" of the parties, 10. The complaint in an action against a railroad company by an employe for injuries re ceived while coupling cars alleged that the engine used was defective, and could not be managed so as to be safe to employes so engaged, such difficulty in managing being in part caused by the leaking of the throttle and in part by defects unknown to plaintiff, and which he is unable more particularly to describe, but that the defects were such as to cause the engine to reand that defendant had long known the danger verse and move backwards with a sudden start, ous condition of the engine. Held, that a moground that it should have stated the length of tion to make the complaint more specific on the time the engine had been defective, and the particular defects, was properly denied.-Wabash W. Ry. Co. v. Morgan, (Ind. Sup.) 81 N. E. 661. Verification. 11. Code Civil Proc. § 3366, requires the pe tition in condemnation proceedings to be verified in the same form and by the same persons as pleadings in courts of record; and section 525 provides that, where the party is a domestic corporation, the verification of a pleading in its behalf must be made by "an officer thereof." Held, that an attorney who verified a petition, and stated in the verification that he “is plaintiff's |