in review the instructions given severally or separately. Judge ELLIOTT, in his work entitled Appellate Procedure, (section 791,) says: "A party is not bound to object to instructions, but he is required to opportunely and appropriately except to them. It has been finally held by our court, after much wavering, that the exception must be taken to each instruction." In the case of Railway Co. v. Mc. Cartney, 121 Ind. 385, 23 N. È. Rep. 258, the appellant moved for a new trial on account of supposed error in giving an entire series of instructions, and in discussing the question as to whether this was a proper practice, the court said: "Such an assignment, like a joint demurrer to separate paragraphs of a pleading, can only be maintained by showing that all the instructions are erroneous.

It is

an established rule that a motion for a new trial, which assigns as a cause that the court erred in giving or refusing instructions, must specify with reasonable certainty the particular instruction upon which error is predicated." The reason given for the rule is that, as the object of the motion for a new trial is to bring the attention of the court to the precise point in respect to which error is supposed to have been committed, the point must be so stated in the motion as to leave no room for reasonable doubt that the court's attention was called to it. If a party may except jointly to two instructions, and by assigning the action of the court in giving them both as a reason for new trial, require the consideration of the instructions separately, he may do likewise as to three, four, or any given number, including a whole series. This we have seen he cannot do. In our opinion, the question as to whether the third instruction asked by the appellees and given by the court is not before us in such a manner as to authorize us to consider it separately. There is no objection made to the fourth instruction. given in connection with the third. We are not, therefore, required to examine it with a view of discovering some error therein.

The court did not err in permitting the appellees to testify as to what was done and said at the time they signed the bond in suit. The fact as to whether they did or did not execute the bond could be ascertained in no better way.

We are not prepared to hold that there is no evidence in the record tending to support the verdict of the jary. There is some evidence from which they might have found for the appellees, and in such case, under the well-known rules of this court, we cannot disturb their verdict. Judgment affirmed.

SCOTT et al. v. STINGLEY, County Surveyor.

(Supreme Court of Indiana. Oct. 6, 1892.) REPAIR OF DITCHES-ASSESSMENTS.

1. Under Elliott. Supp. § 1193, which requires the county surveyor to keep the ditches in his county in repair, the surveyor is the judge of the means to be employed to accomplish the work, and landowners cannot escape liability on assessments because the workmen employed

were paid by the day, and no competition was invited. 2. On appeal to the circuit court from asseɛɛments levied by the county surveyor for the repair of a ditch, appellants cannot escape liability on the ground that no additional assessments had been levied against other landowners, who had permitted their cattle to obstruct the ditch, where appellants made no effort to prove the additional cost of removing such ob struction so as to enable the court to adjust the assessments.

3. The fact that a county surveyor, in repairing a ditch, exceeded the jurisdiction conferred on him by Elliott, Supp. § 1193, in that he widened the bottom of the ditch beyond the original specifications, does not relieve the landowners from paying for benefits received by the performance of such work as was within the jurisdiction of the surveyor; and where the assessments levied are short of the amount actually paid by the county for the repairs, the supreme court on appeal will presume, in the absence of evidence to the contrary, and in favor of the findings of the lower court sustaining the assessments, that appellants' lands were not assessed in an amount greater than their just proportion of legitimate costs of repairing the ditch,

4. Land not assessed for the construction of a ditch cannot be assessed for repairs, under the express provisions of Elliott, Supp. § 1193.

Appeal from circuit court, Fulton county; ISAIAH CONNER, Judge.

Lands of Emmett H. Scott and others were assessed by Peter J. Stingley, county surveyor, for the repair of a ditch. From such assessments, they appealed to the eircuit court, where the assessments were sustained. They now appeal to the supreme court. Affirmed.

Enocu Myers and S. Keith, for appellants. Baker & Rowley and Holman & Stephenson, for appellee.

COFFEY, J. Section 1193, Elliott, Supp., provides, among other things, that, after the construction of any public ditch, the county surveyor of the county in which the proceedings were had for its construction shall keep the same in repair to the full dimensions as to width and depth, as required in the original specifications, and certify the cost thereof, including his own perdiem, to the county auditor, who shall draw his warrants on the county treasurer, payable to the persons to whom the money is owing, which warrants shall for the time being be paid out of the county revenue. It provides that the money thus paid out of the county revenue shall be replaced by assessments against the land benefited by the work. It also provides that any person against whose lands assessments are made for that purpose, feeling himself aggrieved thereby, may appeal therefrom to the circuit court. Such appeal is tried by the court without a jury, and the only question for trial relates to the costs of such repair and what amount thereof shall be assessed against the land of the party appealing. Assuming to act under the provisions of this statute, the surveyor of Fulton county began the work of cleaning out what is known as the "Walters and Cannon Ditch" in that county, but before the completion of the work his term of office expired, and the work was completed by the appellee, who was his successor in office. Both the appellee and his predecessor issued certifi

cates to those performing the work as it progressed, and those to whom the money was due received their pay out of the county treasury. For the purpose of reimbursing the county for the money thus paid out, the appellee, as the surveyor of the County, made assessments against the land benefited, and in doing so be assessed land located on what is known as the "Walter Mogle Ditch," as well as the lands located on the Walters and Cannon ditch. Seventeen of the owners of the land thus assessed, feeling aggrieved by the assessment, appealed therefrom to the circuit court, where upon a trial the assessments made against the land on the Mogle ditch were declared illegal, and were set aside, but the assessments made against the land located on the Walters and Canuon ditch were affirmed. From the judgment affirming these assessments this appeal is prosecuted.

The only questions in the case for our consideration relate to the action of the court in overruling the motion of the appellants for a new trial. It is not denied by the appellants that the county actually paid out the sum of money for which it claims reimbursement, but it is contended -First. That there is a 40-acre tract of land at the mouth of the ditch through which it runs, and which was benefited by the work against which no assessment was made. Second. That a large part of the work of cleaning out the ditch was done under the supervision of one O'Dell, who employed men by the day to perform the work, and that it was done without advertising the work in order to invite competition. Third. That a large part of the obstruction which rendered the cleaning of the ditch necessary was occasioned by the cattle running on pasture land through which the ditch runs, and that no additional sum was assessed against such land to pay for the removal of such obstruction, but the cost of so doing is distributed throughout the entire assessment. Fourth. That the original specifications for the ditch established it at the width of two feet at the bottom, with a slope of the sides at an angle of forty-five degrees, and, under pretense of cleaning the same out, it was enlarged so as to make it three feet wide at the bottom, with a corresponding increase in width at the top. Before a consideration of the objections urged by the appellants, it is not improper to state the general principles of law, as settled by the decisions of this court, by which we are to be guided in the decision of this cause. The decision of the county surveyor as to the necessity of repairing a public ditch is final, but the statute which limits the questions for trial upon appeal to the circuit court to the question of the costs of such repair, and the amount which shall be assessed against each tract of land benefited, does not preclude an inquiry into the question as to whether the surveyor acted within his jurisdiction. The jurisdiction, powers, and duties of the surveyor are fixed and limited by statute, and he cannot, under bretense of repairing, enter upon a new scheme of drainage, but is limited to the duty of repairing such ditches as have al

ready been constructed. Markley v. Rudy, 115 Ind. 533, 18 N. E. Rep. 50; Kirkpatrick v. Taylor, 118 Ind. 329, 21 N. E. Rep. 20; Weaver v. Templin, 113 Ind. 299, 14 N. E. Rep. 600; Amoss v. Lassell, 122 Ind. 36, 23 N. E. Rep. 525. Assuming that the surveyor was acting within the scope of his authority in repairing the ditch, the question as to whether he adopted the best or cheapest plan for its performance is not, in our opinion, open to inquiry. Our attention has not been called to any provision of law which requires him to advertise for bids, and, as he is the sole judge of the necessity of making repairs, we think he is also the judge of the means to he employed to accomplish the work. It is not denied that the work done under the supervision of O'Dell cost the amount of money paid for it out of the county treasury, nor is it claimed that any fraud or collusion intervened. The fact, therefore, that the workmen were paid by the day, and that no competition was invited, furnish no excuse for a refusal to reimburse the county for the expense of such work.

That

There was no effort made by the appellants in their case in chief to show that the ditch in question had been obstructed by cattle or other stock crossing it. The fact that it had been so constructed was called out upon an examination of the witnesses called by the appellees. So far as we have been able to ascertain from a careful reading of the evidence, there was no effort made to prove the amount of additional cost in removing such obstructions; so that the court was kept wholly without the means of adjusting the assessments so as to relieve those on whose land such obstructions were not found from such additional costs, if any were incurred. We cannot presume that such additional costs were more than nominal without some proof showing the amount. It is shown by original specifications that the ditch in question was established at a bottom width of two feet. portion of the ditch repaired by O'Dell was given a bottom width of three feet. There is much conflict in the evidence as to whether it was given a corresponding increase in width at the top. In thus enlarging the ditch we think the surveyor exceeded his jurisdiction. His duties were to so repair the ditch as to restore it as nearly as possible to its original condition. But it does not follow that because he exceeded his jurisdiction in this partic ular the appellants are to be relieved from the payment of any assessments. I would be unjust and inequitable to hold that, because the surveyor exceeded his jurisdiction in some particulars, the appellants should be relieved from the payment for benefits received by the performance of such work as came within the jurisdiction of the surveyor. City of Indianapolis v. Gilmore, 30 Ind. 414. It appears from an examination of the record before us that the assessments of land situated on the Walters and Cannon ditch are more than $150 short of the amount paid out for the improvement of that ditch. This was occasioned by relieving the lands on the Mogle ditch from the assessments made against them to pay for this work. The

with the appellee for the sale of the wife's land, and that the husband himself joined in the contract. That the agreed price was $412.50. As part payment, appellee assumed the payment of a mortgage on the land for $200. That the appellee took possession in pursuance of the contract, repaired the buildings, made fence, put out an orchard, and made other lasting and valuable improvements, with the knowl

The 40-acre tract of laud situated at the mouth of the Walters and Cannon ditch is also situated on what is known as the "Buckingham Ditch," which furnishes the outlet for the former. It was perhaps assessed for the construction of the latter ditch, and was for that reason not assessed for the construction of the Walters and Cannon ditch. However this may be, it is certain that it was not assessed for the construction of the Walters and Cannon ditch, and, by the very terms of the statute above referred to, it is not subject to assessment to keep it in repair. Having carefully examined all the questions in this case presented for our consideration, we are of the opinion that there was no error in the record of which the appellants have a right to complain. Judgment affirmed.

1. Rev. St. 1881, § 5117, which declares that a wife shall not enter into any executory contract to sell, convey, or mortgage her land unless her husband join therein, necessarily means a written contract, since no other contract relating to real estate is valid and enforceable under the statute of frauds; and hence a parol contract for the sale of the wife's land, entered into by her husband as her agent, whose authority also rested in parol, is absolutely void, and will not be specifically enforced, though

there has been a part performance by the vendee.

2. Since the wife was under a legal disability to enter into an executory contract for the sale of her land, except by written contract in which her husband joined, no acts or representations by her can estop her from asserting the invalidity of the parol contract.

Appeal from circuit court, Brown county; N. R. KEYES, Judge.

Action by Gilbert Black against Sabra Percifield and another for specific performance of a contract to sell defendant's land. From a judgment overruling a demurrer to the complaint, defendants appeal. Reversed.

R. L. Coffey, F. L. Hord, and M. D. Emig, for appellants.

OLDS, J. This is an action by the appellee against the appellants, who are husband and wife, for the specific performance of a parol contract for the sale of the wife's land. The complaint alleges that the husband, as the agent of the wife, and having full power to do so, contracted

mortgage, and paid appellants $154. That, after receiving the money, appellants averred their willingness to convey the land, and appellee made other lasting and valuable improvements, and tendered appellants the balance of the purchase money, and demanded a conveyance. That appellants refused, and still refuse, to convey. That appellee is now ready and willing to pay any sum the court may find due and order paid in a decree ordering a conveyance, and offers to bring the money into court, and prays for a judgment and decree ordering the appellants to execute a deed to the appellee for land, and for all proper relief. To this complaint a demurrer for want of facts was filed and overruled, and this ruling is assigned as error. It not being averred that either the authority of the husband or the contract of sale were in writing, it will be presumed that they rested in parol. Pulse v. Miller, 81 Ind. 190; Carlisle v. Brennan, 67 Ind. 12; Langford v. Freeman, 60 Ind. 46. It is the policy of the law of this state to protect the wife against the sale or incumbrance of her land by her husband, and to protect her land from liability for the debts of the husband. Section 5116, Rev. St. 1881, provides that the wife's lands shall not be liable for the debts of her husband, and that the wife shall have no power to incumber or convey her lands except by deed, in which her husband shall join. Section 5117 declares that the wife shall not enter into any executory contract to sell, convey, or mortgage her real estate, nor shall she convey or mortgage the same, unless her husband join in such conprovides that she may be bound by estract, conveyance, or mortgage; but it toppel in pais like any other person. The statute of frauds (section 4904) declares that no action shall be brought upon any contract for the sale of lands, unless such contract upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, etc. It is manifest that section 5117, supra, declaring that the wife shall not enter into any executory contract to sell, convey, or mortgage her real estate unless her husband join in such contract, relates to a written contract, and that all power to bind herself by contract for the sale orconveyance or mortgaging of her real estate is withheld, except it be by a written contract, in which her husband shall join; and, to bind the wife by an executory contract for the sale of her real estate, the contract must be such a contract as the law recognizes as a valid one for the sale of real estate, and such a one as a suit may be based upon, viz., a written contract, and in such contract her husband

must join. This must necessarily have been the intention of the legislature, for no other contract except a written contract is recognized as valid and enforceable for the sale of real estate, and a contract is referred to in this action in connection with, and placed on the same basis as, a deed or mortgage; and it was, as we think, certainly the intention that, to bind the wife by an executory contract for the sale or incumbrance of her land, the contract, like the conveyance or mortgage, must be in writing, and her husband must join in the same. Placing the construction we do upon the statute, it follows that a parol contraet for the sale of the wife's lands is absolutely void, the wife having no authority to make such a contract; and, being incompetent to make such a contract herself, she could not constitute her husband her agent to make it for her.

This leaves but the question of estoppel to determine, and that has heretofore been settled adversely to the appellee by the decisions of this court. A wife cannot be estopped from denying her capacity to make a contract. In the case of Cook v. Walling, 117 Ind. 9, 19 N. E. Rep. 532, in speaking of the question of an estoppel by a married woman, this court states the rules clearly, and says: "When, however, the contract relates to matter concerning which all the common-law disabilities continue, so that the contract is utterly void for want of power or capacity to make it, the doctrine of estoppel cannot be invoked in order to remove the incapacity. In other words, while a married woman may be estopped by affirmative representations concerning the character of a contract which, if her representations be true, she is, notwithstanding her cover. ture, under no legal disability to make, she cannot by her own act or representation remove her legal incapacity to make a contract which coverture alone, under any and all circumstances, disqualifies her from making, except in a prescribed way." So, in this case, the coverture of Mrs. Percifield incapacitated her from making an executory contract for the sale of her real estate, except in the manner prescribed by the statute, viz., by a written contract, in which her husband joined; and she cannot be estopped from setting up the invalidity of the parol contract by reason of her incapacity to make the same. Long v. Crosson, 119 Ind. 3, 21 N. E. Rep. 450.

The complaint does not state facts entitling the appellee to the relief asked. The court erred in overruling the demurrer to the complaint. Judgment reversed, with instructions to the circuit court to sustain the demurrer to the complaint.

HOOSIER STONE Co. v. MCCAIN.1 (Supreme Court of Indiana. Oct. 8, 1892.) NEGLIGENT KILLING OF EMPLOYE PLEADINGSPECIAL VERDICT.

1. In an action against a corporation for the negligent killing of plaintiff's intestate while in defendant's employ, an averment in the complaint that "defendant, by its agents and employes, acting under the order of its superin'Rehearing pending.

tendent and foreman," committed the wrongful act causing the death, is not demurrable on the ground that it shows the death to have been caused by the fellow servants of the deceased, since a corporation must necessarily act through its agents and employes.

2. Where defendant pleads the general denial to a complaint which avers defendant's negligence, and negatives the existence of contributory negligence by plaintiff, a demurrer is properly sustained to special paragraphs of the answer which do not confess and avoid, but assert argumentatively, that plaintiff never had any cause of action because defendant was not negligent, since evidence in support of such spe cial paragraphs is admissible under the general denial.

3. Where the complaint alleges that the death of plaintiff's intestate was caused by defendant's negligence, a demurrer is properly sus tained to a special paragraph of the answer which alleges that the injury was caused by a defective brake in a car furnished defendant by a railroad company, and which prays that plaintiff be compelled to make the railroad company a party to the action, since, if the railroad company's negligence concurred with that of defendant, plaintiff may sue either of the joint tort feasors; and, if the injury was caused solely by the negligence of the railroad company, that fact could be shown under the general denial, also pleaded by defendant.

4. A venire de novo will not be awarded be cause the special verdict does not find all the facts; but the ultimate facts establishing the cause of action must appear, or the court cannot apply the law, and mere evidentiary matters are out of place and valueless in a special verdict.

5. In an action against a corporation for the negligent killing of plaintiff's intestate while at work unloading a coal car standing on a switch constructed by defendant at a heavy grade into its quarry, the special verdict stated that at the time of the accident defendant's superintendent ordered the foreman to load certain stone into a designated car; that such car was started down grade, coming into collision with two other heavily loaded cars; that these two cars were thrown against the ear on which plaintiff's intestate was at work; and that there was nothing to prevent the superintendent, who was present, from observing all that was done. Held, that the special verdict sufliciently showed that the superintendent had charge of the quarry and connected business, and that he occupied the position of a master, and not a mere fellow

servant.

6. The statement in the special verdict that the switch was constructed on a "considerable grade," and that in consequence cars had to be "carefully handled and guarded," does not show that defendant failed to exercise ordinary care in constructing the switch.

7. The further statement in the special verdict that the first car was started down the switch towards the two loaded cars, and was permitted by defendant and its agents to come into collision with such cars, is not sufficient to slow that there was negligence in moving or controlling the first car.

8. The further statement in the special verdict that the two loaded cars with which the first collided were held in position "by one brake in the cars being set, and one chock placed under the wheel or trucks thereof," does not authorize the conclusion that ordinary care was not used in securing the cars from moving down grade, as the verdict does not state that the brake or chock was insufficient.

9. The character of the grade of the switch, the peril attendant on its use, and the fact that it was necessarily used in defendant's business, were matters fully open to the observation of plaintiff's intestate, and no action will lie against defendant for an injury attributable to such peril, as it was a risk incident to the service which deceased had voluntarily entered.

Appeal from circuit court, Lawrence county; J. H. WILLARD, Special Judge.

Action by Washington C. McCain, administrator, etc., against the Hoosier Stone Company for wrongful death of plaintiff's intestate. From a judgment in plaintiff's favor, defendant appeals. Reversed.

Dunn & Dunn, for appellant. Joseph Giles and John Riley, for appellee.

ELLIOTT, J. The appellee, as the administrator of the estate of James A. McCain, deceased, seeks to recover damages for the death of the deceased, which it is charged was caused by the negligence of the appellant. The complaint alleges that the deceased was in the service of the appellant, and was injured while in the line of his duty, without any fault on his part.

It is insisted by the appellant's counsel that the third paragraph of the complaint is bad, for the reason that it affirmatively shows that the injury to the appellee's intestate was caused by the negligence of a coemploye. We cannot agree with counsel in the construction which they place upon the complaint, although it is true that the pleading is not entirely beyond criticism. The averment is that the "defendant, by its agents and employes, acting under the orders of its superintendent and foreman," committed the wrongful act which caused McCain's death. This averment, taken in connection with others, must be deemed sufficient, as it charges the negligent act to be that of the defendant. It is true that it is alleged that the act was performed through agents and employes, but this does not render it any the less the act of the appellant, since, as it is a corporation, it must do whatever it does through its agents.

An answer containing several paragraphs was filed by the appellant. The first paragraph is the general denial and the second and third paragraphs are regarded by us as argumentative denials. They do not confess and avoid, inasmuch as they do not give color of right to the plaintiff's complaint, but assert, in effect, that he never had any cause of action. An answer which does not concede color of right is not a plea in confession and avoidance. The answers we are considering really confess no material facts save the relationship between the parties and the happening of the accident. They fully deny, although in an affirmative form, that the injury was attributable to the negligence of the defendant. It is indeed difficult to conceive how an answer can be considered as in confession and avoidance where, as here, the defendant's negli- | gence is averred and the plaintiff's negligence expressly denied, unless new affirmative matter is pleaded, such as payment, accord and satisfaction, or the like. There is certainly no new matter of that nature in any of the paragraphs of the answer. It is settled that there is no available error in sustaining a demurrer to special paragraphs of an answer in a case where the general denial is pleaded, and all the evidence admissible under the affirmative answers is admissible under

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the general denial. See authorities cited in Elliott, App. Proc. §§ 637-669.

The fourth paragraph alleges that the intestate was injured upon a car furnished to the appellant by the Louisville, New Albany & Chicago Railroad Company, and that his injury was caused by a defective brake, which the railroad company negligently suffered to become insufficient and dangerous. The prayer is that the plaintiff be compelled to make the railroad company a party to the action. There was no error in sustaining the demurrer to this paragraph. If, as the complaint alleges, the defendant was guilty of a culpably negligent breach of duty owing to its employe, the fact that another person was also negligent would not compel the plaintiff to make that person a party to the action, since it is an elementary rule that a plaintiff may sue one or more of several joint tort feasors. Nor would the fact-conceding the answer to show such fact-that the negligence of the railroad company concurred with that of the appellant in producing the injury defeat the action, nor require the presence of the railroad company as a party, inasmuch as a wrongdoer is not exculpated because the negligence of another concurred in producing the injury to the plaintiff. See authorities cited in Elliott, Roads & S. pp. 461, 452, 631. If the negligence which caused the injury to the appellee's intestate was solely that of the railroad company, then, clearly enough, the appellant would not be liable; but the defense that there was no culpable negligence on the part of the appellant was admissible under the general denial, so that the concession that the answer shows that there was no negligence on the appellant's part would not lead to a reversal.

The contention of counsel that a venire de novo should have been awarded be cause the special verdict does not find all of the facts cannot prevail. Even at common law, a special verdict was not ill because it did not state all the facts, although it was ill if it did not embrace all the issues. But, under the peculiar rule which prevails in this jurisdiction, a special verdict is not ill even though it may not cover all the issues in the cause. Authorities cited in Elliott, App. Proc. §

759.

The material facts stated in the special verdict are in substance these: On the 14th day of June, 1888, James A. McCain was in the service of the defendant, and had been in such service for three months prior to that date. For the purpose of moving and shipping stone quarried by the defendant, a railroad switch was constructed from the main line of the Louisville, New Albany & Chicago Railroad Company to the defendant's quarry. The switch was constructed by the defendant, and so constructed as to "make a considerable grade up to and into the quarry of the defendant." In consequence of such grade, cars upon the part of the switch which was located in the quarry, if not carefully handled and guarded, would run, by reason of their own weight, with great force and speed out of the quarry, and