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5. Where such list appears in the records of the board of commissioners, parol evidence that it was prepared without the authority of the board is inadmissible.

6. In a suit to enjoin the collection of a tax, the reading in evidence of the tax duplicate, showing that the plaintiff has not paid all his taxes, is

not reversible error.

Appeal from circuit court, Dearborn county; WILLIAM H. BAINBRIDGE, Judge. George E. Downey, for appellant. J. K. Thompson and McMullen & Johnson, for appellees.

Hickey v. Railroad Co., 14 Allen, 429; Willis v. Railroad Co., 34 N. Y. 670; Smotherman v. Railroad Co., 29 Mo. App. 265. But we do not decide whether these decisions declare the law correctly or not. It is sufficient for our purpose and for this case to affirm that a passenger who remains on the platform of a car at the rear end of a long train of freight cars, after warning to leave it, does voluntarily occupy a place of danger. We confine our decision to the case of one riding on a freight train, since that is all the case presented by the record requires. There is, it is our duty to say, a difference between freight trains and regular passenger trains. Passengers assume the risks incident to the means of transportation they adopt, and one who takes passage on a freight train, although it has a caboose attached for the transportation of passengers, must take notice of the character of the train, and use such ordinary care to avoid injury as the nature of the mode of transportation renders prudent. Woolery v. Railroad Co., 107 Ind. 381, 8 N. E. Rep. 226; Wallace v. Railroad Co., 98 N. C. 494, 4 S. E. Rep. 503; Harris v. Railroad Co., 89 Mo. 233, 1 S. W. Rep. 325; Murch v. Railroad Co., 29 N. H. 9; Railroad Co. v. Fay, 16 Ill. 558. One of the risks which ordinary prudence requires a passenger on the caboose of a freight train to guard against is that arising from the sudden jerk of the train on starting, resulting from the taking up of the slack between the cars. This is a matter of common knowledge of which an adult has no right to be ignorant, and with this knowledge he has no right to put himself in a position where it is probable that he will be thrown from the car when the train is put in motion. In this instance, the plaintiff, having remained in such a position, heedless of warning and in disobedience of instructions, has no cause of action. In assuming that upon the hypothetical case stated in the instruction he might recover, notwithstanding his own wrong, a fatal error was committed. Judgment re-tended election, or at any other time, make -versed

(120 Ind. 528)

COFFEY, J. This was an action instituted by the appellant against the appellee, as treasurer, in the Dearborn circuit court, to enjoin the collection of a tax voted by the legal voters of Center township, in Dearborn county, to aid the construction of a railroad. In the original complaint the appellant, after averring the existence of the tax upon the tax duplicate of the county, alleges in four different specifications the reasons for the illegality of such tax as follows: First. That said pretended election, so held in said Center township, was illegal and void, because the notices thereof were not posted until the 11th day of November, 1886, when the election was ordered by the board of county commissioners to be held, and was held, on the 23d day of November, 1886; the statutes of the state of Indiana in force at that time requiring that said hand-bills shall be posted by the sheriff of the county three weeks prior to the day fixed for taking the vote of the township named in said petition. Second. The said board of county commissioners did not, at their regular June session following said pretended election, or at any other time, make any order granting the prayer of said petition above named, nor did they in any other way, directly or indirectly, grant the said petition. Third. The said board of county commissioners did not, at their regular June session following said pre

any order levying any special tax for the purpose of making such appropriation to said

HILL v. PROBST, County Treasurer, et al. Louisville, Cincinnati & Dayton Railroad, as

(Supreme Court of Indiana. Nov. 1, 1889.)

MUNICIPAL AID TAX-INJUNCTION.

1. Where there is no material difference between the specifications of cause for an injunction stated in two separate paragraphs of a complaint, the sustaining of a demurrer to one paragraph is not ground for an assignment of error, when a demurrer to the other has been overruled.

2. Where several specifications of cause for injunction are assigned in a complaint, each specification is considered a separate paragraph, and one specification cannot aid another.

3. In a complaint seeking to enjoin the collection of a railroad aid tax, a specification alleging failure to post notices of the election to vote upon the tax, without alleging that the board of commissioners did not levy the tax, is demurrable. 4. Where the proceedings of the county commissioners do not show any formal order granting the prayer of a petition for a railroad aid tax, or levying the tax, the insertion of such tax in the list of taxes assessed against a township which has voted for such petition is sufficient to show the levy of the tax.

is required by the statutes of the state in such cases made and provided, nor did said board at any time order said assessment of 20 cents on the $100 in valuation of the taxable property in Center township to be placed on said tax duplicate for collection; but said erroneous and illegal assessment was so placed on said tax duplicate without the proper order of the board of county commissioners, and without authority of law. Fourth. Said pretended special tax is improperly and illegally placed on said duplicate, because at the time it was so placed thereon the Louisville, Cincinnati & Dayton Railroad was not, and is not now, permanently located in saið Center township. The court sustained a demurrer to said first, third, and fourth specifications, and the appellant excepted. Appellant thereupon, with leave of the court, filed a second paragraph of complaint, in

that the court erred in sustaining the demurrer to the first and second specifications of cause in the additional second paragraph of complaint; third, that the court erred in overruling the demurrer to the second paragraph of the answer; fourth, that the court erred in overruling the motion for a new trial.

There seems to be no material difference in the specifications of cause in the first and second paragraphs of the complaint. As the court overruled the demurrer to the second specification in the original complaint, and also overruled it to the third and fourth specifications in the second paragraph, there is no available error in sustaining the demurrer to the third and fourth specifications in the original complaint. If the court erred in its rulings as to these specifications, it corrected such error when ruling on the demurrer to the same specifications in the additional or second paragraph. We need not, therefore, give the assignment of error calling in question this ruling any further consideration.

The court, however, sustained the demurrer to first specification in both the original and additional complaint, and it becomes necessary to inquire into the correctness of that ruling. The practice of assigning several specifications of cause for an injunction in cases like this has been approved by this court, as having the merit of convenience and economy of time and expense, as it saves the repetition of the whole statement of the levying of the tax with each specification of the objection thereto. The defendant in such case can either demur or answer as to each specification, and each of such specifications, when demurred to, is considered as a sep

which he set out four specifications which he claims rendered the tax sought to be enjoined illegal, as follows: First. That said pretended election so held in Center township is illegal and void, because the notices thereof were not posted until the 11th day of November, 1886, when the election was ordered by the board of county commissioners to be held, and was held, on the 23d day of November, 1886; the statutes of the state of Indiana in force at that time requiring that said hand-bills shall be posted by the sheriff of the county three weeks prior to the day fixed for taking the vote of the township named in said petition; and no notices were posted by any one acting for the sheriff, and by his authority, three weeks before said election, of which any return was made, and, in fact, no notices were posted. Second. The said board of county commissioners of Dearborn county did not at their regular session following said pretended election, or at any other time, make any order granting the prayer of said petition above mentioned, nor did they in any other way, directly or indirectly, grant the said petition. Third. The said board of county commissioners did not at their regular session following said pretended election, or at any other time, make any order levying any special tax for the purpose of making such appropriation to said Louisville, Cincinnati & Dayton Railroad, as required by the statute of the state in such cases made and provided; nor did said board at any time order said assessment of 20 cents on the $100 in valuation of the taxable property in Center township to be placed on said tax duplicate for collection; but said erroneous and illegal assessment was so placed on said tax duplicate without any or-arate paragraph of complaint, and is considder of the board of county commissioners, and without authority of law. Fourth. Said pretended special tax is improperly and illegally placed on said duplicate, because at the time it was so placed thereon the Louisville, Cincinnati & Dayton Railroad was not, and is not now, permanently located in said | Center township. The court sustained a demurrer to the first and second specifications of the second paragraph of the complaint, and overruled it as to the third and fourth, and the appellant excepted. The appellee answered in two paragraphs. The first is a general denial, and the second avers the assessment of the tax sought to be enjoined by the board of commissioners of Dearborn county, setting out a full transcript of the proceeding of the said board in the matter of the petition for the assessment of a tax in Center township to aid in the construction of the Louisville, Cincinnati & Dayton Railroad. A demurrer was overruled to the second paragraph of the answer, and an exception taken. Upon issues formed there was a trial by the court, resulting in a finding and judgment for the appellee. The errors assigned areFirst, that the court erred in sustaining the demurrer to the first, third, and fourth specifications of cause in the complaint; second,

ered in connection with the allegations preceding and following it in the complaint. It is evident, however, that the specifications. when so attacked cannot aid each other, but they must be considered separately. Boden v. Diil, 58 Ind. 273; Mustard v. Hoppess, 69 Ind. 324; Hilton v. Mason, 92 Ind. 157.

Reading the complaint in the light of this rule, and omitting all the specifications except the one now under consideration, there is no allegation that the board of commissioners did not levy the tax which the appellant seeks to enjoin. The tax is found upon the tax duplicate, and, as public officers are presumed to do their duty, it must be presumed to be there lawfully, and in accordance with the prayer of the petition, until the contrary is shown. It is true that the appellant alleges in the second paragraph of his complaint that the board of commissioners took no action and made no order about or concerning said appropriation after ordering the election, but the law made it their imperative duty, at the June term following the election, to assess the tax, if a majority of the votes cast was favorable thereto, and such general averment as the above is far short of an averment that at the June terin following such election they did not levy

such tax. As the tax is found upon the du- | No. 19, page 562, of said county, and more plicate, we must presume therefore, in the especially to the tabulated statement thereon, absence of a specific showing to the contrary, state whether or not the board of county comthat the board of commissioners levied the missioners authorized the placing in said same. In making such levy they necessarily statement of the column headed L., C. & D. passed upon the validity of the election au- R. R. Tax.'" The court sustained the obthorizing the same, and, however erroneous jection to this question, and the appellant the conclusion at which they arrived may be, then offered to prove by said witness that the it cannot be attacked in a collateral proceed- column in said tabulated statement referred ing like this. Board v. Hall, 70 Ind. 469; to was not placed in said statement by order Reynolds v. Faris, 80 Ind. 14; Hilton v. of the board of county commissioners, but Mason, 92 Ind. 157. In our opinion, the was placed there by the auditor himself, of court did not err in sustaining the demurrer his own volition, without any order of the to the first specification in either the first or board of county commissioners concerning second paragraph of the complaint. the matter, and that the board of county commissioners never, at their June session, 1887, made any order of any kind with referRailroad tax. The tabulated statement referred to in the question is part of the record made by the board of commissioners of Dearborn county, and it was not competent for the appellant to contradict, add to, or detract from it by parol testimony. It was not proposed to prove by the witness that any change had been made in the statement since it was passed by the board, and the record signed. It was wholly immaterial who prepared the tabulated statement, or whether it was prepared with or without the authority of the board of commissioners. If they adopted and passed it, it was as effectual as if it had been prepared by their order.

In the transcript of the proceedings of the board of commissioners of Dearborn county, set out in the second paragraph of the appel-ence to said Louisville, Cincinnati & Dayton lee's answer, there does not appear any formal order granting the prayer of the petition for a railroad tax, or any formal order levying such tax, but in the assessment of the taxes for that year appears the following in the list of townships, viz.:

Endowment fund..........
State tax....

County tax...

Township tax...

Township tuition

Special school.....

Road tax....

Road tax, cash.

Town tax...

Louisville, Cincinnati & Dayton Railroad tax

$

12

55

15

10

10

20

10

20 Total tax on each $100..... $1 68% Following this is the following language: "There being no further business before the board, they now adjourn to meet Saturday, June 18th, 1887. [Signed] G. A. SWALES. Attest: JULIUS SEVERIN, A. D. C." It is claimed by the appellant that this is not sufficient to show an assessment of the railroad tax by the board of commissioners of Dearborn county, but we think otherwise. When construed in connection with the petition of the citizens of Center township to make an appropriation in aid of the construction of the Louisville, Cincinnati & Dayton Railroad, we think it sufficiently appears that there was a tax of 20 cents on the $100 levied in that township for the purpose indicated in that petition. The court did not err in overruling the demurrer to the second paragraph of the answer.

The court also, over the objection of appellant, permitted the appellee to read in evidence the tax duplicate, showing that the appellant had not paid all his taxes. We are not advised as to the object sought to be attained by the introduction of this evidence, but we can see no objection to bringing before the court the tax duplicate upon which was the tax in controversy, as well as all other taxes assessed against appellant. We are unable to see how the appellant was injured by this ruling of the court. We find no error in the record for which the judgment of the circuit court should be reversed. Judgment affirmed.

(120 Ind. 511)

ROLLET et al. v. HEIMAN. (Supreme Court of Indiana. Nov. 2, 1889.) FRAUDULENT CONVEYANCES-PLEADING.

as fraudulent a conveyance made by his debtor, an In a suit by a judgment creditor to set aside allegation that the latter was mentally incapable of executing the conveyance will not, though irrelevant, vitiate the complaint.

It is claimed that the finding of the circuit court is not supported by the evidence. The record of the proceedings had before the board of commissioners, corresponding with the transcript set out in the second para- Appeal from circuit court, Vanderburgh graph of the answer, was read in evidence. county; WILLIAM F. PARROTT, Judge. Under the construction we have placed upon Suit by Louis Heiman against Joseph Rolthat record, it supported the finding and judg-let, Sophia Rollet, and Henry Nurenbarn, to ment of the court. set aside a conveyance made by Joseph Rollet On the trial of the cause the appellant pro-and Sophia, his wife, to defendant Nurenpounded to Mr. Severin, a witness who had barn. Judgment for plaintiff. Defendants testified that he was auditor of Dearborn appeal. county at the June session of the board of commissioners in 1887, the following question: "Referring to Commissioner's Record

J. E. Williamson, for appellants. D. B. Kumler, G. F. Denby, and Victor Bisch, for appellee.

ELLIOTT, C. J. Heiman, the appellee, is | 62 Ind. 114; Shrock v. Crowl, 83 Ind. 244, the judgment creditor of Joseph Rollet, one Campbell v. Kuhn, 45 Mich. 513, 8 N. W. of the appellants. The facts stated in the sec- Rep. 523; Breckenridge v. Ormsby, 1 J. J. ond paragraph of his complaint are, in sub- Marsh. 236. A pleading, as we have often stance, these: The plaintiff recovered judg- held, is to be judged from its general scope ment against Rollet for $347. The judgment and tenor, and so this complaint must be is unsatisfied, and the debtor has no other judged. Judging it by this established rule, property subject to execution. At the time we cannot allow the isolated averment of of the execution of the promissory note upon Rollet's mental incapacity to control the genwhich the judgment is founded, Rollet owned eral frame and tenor of the pleading. This real estate of the value of $5,500, and he also averment, like those of matters of evidence, owned personal property of the value of $800. must be treated as mere surplusage, and surHe was the owner of this property on the 27th plusage will not vitiate a pleading. Our day of October, 1883, and the note was exe- judgment is that the complaint is to be recuted on the 28th day of April, 1883, and the garded as one to set aside a fraudulent conjudgment on it was recovered on the 4th day veyance accepted by the grantee with knowlof February, 1884. Rollet, by reason of the edge of the fraudulent purpose, and as a mere excessive use of intoxicating liquors, was in- volunteer who has paid no consideration. capacitated from engaging in ordinary busi- | Judgment affirmed. ness pursuits. Nurenbarn is the brother-in

law of Rollet, and on the 27th day of Octo

COUNTY.

(121 Ind. 133)

ber, 1883, induced the latter to convey to him LANG v. BOARD OF COMMISSIONERS PERRY all of his property. A deed was executed by Rollet and wife, conveying to Nurenbarn the real estate then owned by Rollet. The con(Supreme Court of Indiana. Nov. 5, 1889.) sideration for the conveyance was the prom- COUNTY PHYSICIAN-POST MORTEM EXAMINATIONS. ised payment of $3,900, and the assumption ployed under contract by a county to treat its poor It is no part of the duty of a physician emby the grantee of two mortgages on the prop-to make a post mortem examination of the body of erty. The property was worth at least $3,000 a dead pauper, and when he does so at the request more than the price fixed. The consideration of the coroner he is entitled to compensation. expressed in the deed was not paid by the Appeal from circuit court, Perry county; grantee. The alleged payment of $3,900 GEORGE L. REINHARD, Judge. was, in fact, not made, but was pretended to be made by the release of debts due from Rollet to Nurenbarn, which debts were mere fictions, having no existence. Immediately after the execution of the deed Nurenbarn made a gift of a great part of the personal property to Sophia Rollet, the wife of the judgment debtor. The conveyance was made with the intent to cheat, hinder, and delay the creditors of Rollet, and it was accepted by the grantee, with full knowledge of all the facts.

E. E. Drumb, for appellant. for appellee.

W. A. Land,

OLDS, J. The appellant filed his claim before the board of commissioners of Perry county for services as a physician in making a post mortem examination of the dead body of one Joseph Warren, at the request, and by the direction, of the coroner of said county. The claim was disallowed by the board, and the appellant appealed to the circuit court. In the circuit court the cause was submitted to the court for trial without the intervention of a jury, which trial resulted in a finding and judgment for the defendant. The plaintiff filed a motion for new trial. The court overruled the motion, and an exception was taken to the ruling. The appellant appealed from the judgment, and assigns the ruling of the court on the motion for new trial as error.

The complaint is not well drawn. It contains much that is mere matter of evidence, and such matter obscures and weakens a pleading. We attach no importance whatever to the argument of the counsel that the complaint describes many badges of fraud, and is therefore good; for badges of fraud are simply matters of evidence, and in pleading it is the facts, and not the evidence, that must be alleged. The complaint contains matters The question presented is as to the suffiwhich are not proper in a complaint by a ciency of the evidence to support the verdict. judgment creditor to set aside a fraudulent The uncontroverted evidence shows that conveyance, and these matters so confuse the Joseph Warren came to his death by casualty, pleading as to make it somewhat difficult to and was found dead in a cistern. The coroner determine its character. If the complaint was notified and held an inquest, and resought simply to set aside the conveyance be- quired the appellant, Lang, who is a physicause of the mental incapacity of Rollet, we cian, to make a post mortem examination, should be strongly inclined to hold that no and that he made the post mortem examinacause of action was shown to exist in the tion as required, and testified as a witness judgment creditor. We believe the law to before the coroner as to the facts revealed be against the right of a judgment creditor by such examination, and the cause of the to set aside such a conveyance as fraudulent, death of Warren, and that his services were for we think that the deed of insane persons of some value. The witnesses testifying as can only be avoided by the grantor or his to the value of the services placed them privies in blood or estate. Price v. Jennings, at from $5 to $25. The testimony also

OLDS, J. The appellant filed his claim against the appellee on five causes of action. The first, second, and fifth were paid before the cause came on for trial, and trial was had on the third and fourth causes. The third

showed that at the time the appellant made such examination he was the county physician, employed by the county to treat the poor of the county who were inmates of the asylum. The claim of the appellant for making such post mortem examination was prop-cause of action is upon a promissory note erly certified by the coroner to the board of commissioners. There was no evidence given in the case tending to controvert any of the foregoing facts, and on the foregoing facts, which were proven and not controverted, the appellant was entitled to recover for the value of his services. The fact that he was at the time employed by the county to treat the poor of the asylum could not prevent his recovery for making a post mortem examination of the body of one of the dead paupers who had come to his death by casualty, when required to do so by the coroner. The making of the post mortem examination was no part of his duty under a contract with the county to treat the poor when sick. The county is liable for the services of a physician in making a post mortem examination, when such services are required by the coroner of the county. Stevens v. Board, etc., 46 Ind. 542; Jameson v. Board, etc., 64 Ind. 524; Board, etc., v. Jameson, 86 Ind. 154; Board, etc., v. Bond, 88 Ind. 102; Board, etc., v. Gillum, 92 Ind. 511; Board, etc., v. Wertz, 112 Ind. 268, 13 N. E. Rep. 874.

dated October 14, 1869, executed by the decedent and Godlove O. Behm, payable as follows: "Sixty days after date we promise to pay to the order of John C. Brockenborough, cash'r at the National State Bank of La Fayette." The note was for $250, with 10 per cent. interest after maturity, and a conditional promise to pay attorney's fees if suit be instituted, signed as follows, by Behm first and then by the decedent: "GODLOVE O. BEHM. GODLOVE S. ORTH, Security." The fourth cause of action was on an account for one-fourth of the sum of money, with interest, laid out and expended by appellant in reference to an investment by the decedent, appellant, and two others in Venezuela certificates. There was a trial, resulting in a verdict and judgment for the appellant on the fourth cause of action, the account, and against the appellant on the third cause of action, the note.

There are several errors assigned and discussed. The first error discussed is the overruling of an objection to a question propounded to John C. Brockenborough. It was contended by appellant that the note in question was discounted by the National Judgment reversed, at the costs of the ap-State Bank, of which said witness was cashpellee, with instructions to the court below to sustain the motion for new trial.

The court erred in overruling the motion for new trial.

(121 Ind. 10)

MARKS v. ORTH.

(Supreme Court of Indiana. Nov. 6, 1889.) EVIDENCE-ENTRIES-UNAUTHENTICATED PUBLIC DOCUMENT.

1. In an action on a note alleged to have been taken up by plaintiff after it had been discounted by a bank, the testimony of the cashier that the bank kept a record of all notes discounted, and that no entry was made of the discount in question, was not evidence of an entry, but evidence that no entry was made, and was therefore admissible to show that the note had not been discounted.

ier and payee named in the note, and then taken up by the appellant from the bank at the request of the decedent, and held by the appellant, and there was some evidence introduced tending to show that state of facts; when the appellee put the witness John C. Brockenborough on the witness stand, and proved by him the method of doing business by the bank, and that an entry was made of all notes discounted in a certain book on the day the note was discounted, and then asked the witness the following question: "State whether or not there was an entry made upon that day in that book in reference to the 2. A witness was asked: "Are you stating discounting of the note that I now place in this from your own knowledge?" He answered: your hands;" to which question the appel"I am stating it from my own knowledge, having lant objected, because the evidence sought refreshed my memory." He was then asked: "You state part of it from memory and part from to be elicited would not show that that note some other source?" He answered: "Yes." Held, was not discounted; that it is secondary evithat there was no error in refusing to strike out dence. It is not contended but the note the testimony, it sufficiently appearing that the placed in the hands of the witness was the note sued upon, and that the date referred to was the date it was claimed to have been discounted. It is contended the evidence is not competent, on the theory that entries of third persons called to testify are not admissible until it is shown in advance that the enterer has no memory of the fact underlying the entry. It became an important fact in this case to determine whether the note had been discounted by the bank, by which the bank became the owner, and then passed the same to the appellant. The note was not indorsed, and to controvert the fact that the note had ever been discounted by the bank it

witness was testifying from his own knowledge, after having refreshed his memory.

3. A document purporting to be a printed report of a congressional subcommittee, which is not authenticated, does not purport to be a part of the authenticated journal, is not identified by it, and is not a record required to be kept or a publication required to be made, is not a document entitled to admission in evidence.

Appeal from circuit court, Tippecanoe county; DAVID P. VINTON, Judge.

Action by Jacob F. Marks against Mary A. Orth, executrix of Godlove S. Orth, deceased. Plaintiff appeals.

Langdon & Gaylord, for appellant. S. P. Baird, for appellee.

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