quire the plaintiff to make her complaint more specific by stating the particular acts constituting the negligence in riding of the bicycle, that he might know with what particular acts of negligence he was charged. Railroad Co. v. Chester, 57 Ind. 297; Hawley v. Williams, 90 Ind. 160; Railway Co. v. Wynant, 100 Ind. 160. The third paragraph differs somewhat from the first and second in the language used, but the acts charged are the same as in the other paragraphs, and we think the ruling of the court in sustaining the motion to make such paragraph of the complaint more specific was correct. large bicycle, the wheel of which bicycle | 15 miles per hour, or along the center of the was sixty inches in diameter,-who then and road to and within 25 feet of the faces of the there negligently and carelessly rode said bi- plaintiff's horses. Taking the theory we do cycle at a rapid rate of speed, to-wit, fifteen of these paragraphs of the complaint, the demiles per hour; and negligently and careless-fendant had the right to have the court rely run the same along and in the center of said highway at said rapid rate of speed towards and into the faces of said horses, and in this way approached to within twenty-five feet of the faces of said horses, when and whereby said horses became and were greatly frightened, and became and were wholly unmanageable and ran away, and in their fright ran along said road at a great speed, and upset said carriage, whereby the plaintiff was thrown violently to the ground," and sustained severe injuries, etc. The averments of the defendant's acts of negligence are the same in the second and third paragraphs of the complaint as in the first paragraph. There is a variance as to some other averments, it being averred in the second that the strap by which one of the horses was fastened to the end of the pole of the carriage broke. After the horses became frightened, the defendant dismounted and took hold of the bridle of one of the horses and endeavored to hold them, but let go of the horse before the driver dismounted. The infancy of the defendant was suggested, and Reuben Bartch was appointed as his guardian ad litem. The defendant moved the court to require the plaintiff to make the complaint more specific, as to how and in what manner the defendant rode and used said bicycle negligently and carelessly, and in what the alleged carelessness and negligence of the defendant consists, in the use of the said bicycle, and what acts and conduct of the defendant in riding and using said bicycle were negligently and carelessly done and performed by him, by reason of which said horses were frightened and caused to run away, causing said injuries to the plaintiff alleged in the complaint, which motion to make such paragraph of said complaint more specific was sustained by the court, and exceptions reserved. The plaintiff refused to amend said paragraphs and make them more specific, and assigns the ruling of the court on the motion as error. The allegations of the defendant's negligence in these paragraphs of the complaint in brief charge that the plaintiff and defendant were traveling towards each other upon the highway, the plaintiff in her carriage and the defendant upon his bicycle, and that the defendant then and there negligently and carelessly rode his bicycle at the rate of speed of 15 miles per hour up to and within 25 feet of the faces of the horses drawing the carriage in which the plaintiff was seated, whereby the horses became and were greatly frightened, and became and were wholly unmanageable. The allegations of negligence are general, and the theory we take of these paragraphs of complaint is that the negligence sought to be charged consists in the manner in which the defendant rode the bicycle, and not in the fact that he rode it at the rate of The next errors assigned are sustaining the demurrers to the fourth and fifth paragraphs of the complaint. The fourth paragraph is substantially the same as the first, except in the allegations of the negligence of the defendant, which are as follows: "Plaintiff was met at said place in said highway and public road by said defendant, who was then and there seated upon and riding a large bicycle, whose wheel was sixty inches in diameter, which said bicycle, with a rider seated upon it, as was well known to said defendant, was an unusual vehicle with which to travel upon such highway, and, as he well knew, was a frightful object for ordinary horses to meet, and was well calculated to and did frighten horses unaccustomed to meeting such vehicles with a rider mounted thereon; and, well knowing these things, said defendant rode such bicycle at a very rapid rate of speed, to-wit, at the rate of fifteen miles per hour, towards and into the faces of said horses, along and upon the middle of said highway, coming towards said horses until he approached to within twenty-five feet of the faces of said horses, which said act of riding said bicycle at such rapid rate of speed and on and upon the center of said highway until he approached within said twenty-five feet of the faces of said horses, knowing, as he well did, the effect of the same upon horses being driven on such highway, was negligent and careless, and by such act of so negligently and carelessly riding said bicycle so up in front of and in the faces of said horses, said horses then and there and thereby became and were greatly frightened, and became and were wholly unmanageable," and in their fright ran away, etc. The fifth paragraph only differs from the fourth in that it alleges that when the horses became frightened they jumped back, and one of the straps fastened to the end of the buggy-pole broke, and defendant dismounted and seized the bridle rein of one of the horses, and undertook to hold said horse until the driver could alight and hold the other horse, and the driver jumped from the carriage, and, before he could get to and seize and hold the other horse, the defendant carelessly and negligent ly released his hold upon the horse so held by | of travel, which are adopted and consistent him, and the horses ran away and injured with the proper use of the highway. the plaintiff. It is manifest that the defendant is not liable under this paragraph of the complaint, unless he is liable for causing the original fright of the horses, etc. The liability of the defendant sought to be charged in this paragraph, as in the other, is causing the horses to become frightened. The injury is the primary result of the fright to the horses. In the case of Railway Co. v. Farver, 111 Ind. 195, 12 N. E. Rep. 296, speaking of the use of a portable engine, the court say: "It would not do to say that the operation of a portable engine, near a public highway, necessarily resulted in creating a nuisance, when it is according to daily experience, during cer tain seasons of the year, to see steam threshing-machines in operation on every hand, In determining the sufficiency of these and often necessarily close to public highparagraphs of complaint, it is proper to con- ways. Road-engines propelled by steam, sider the rights of the parties. The acts of and portable engines operated by steam, have negligence charged in each of these para- become familiar in every agricultural comgraphs of complaint is the riding of the munity. To declare their use near or their bicycle upon and along the center of the high-passage over a public highway constituted a way, at the rate of 15 miles per hour, up to nuisance would be practically to prohibit and within 25 feet of the faces of the horses. their use in the manner in which they are In the case of Mercer v. Corbin, 117 Ind. customarily employed, and moved from place 450, 20 N. E. Rep. 132, it is held that a bi- to place. It must be supposed that horses of cycle is a vehicle, and entitled to the rights ordinary gentleness have become so familiar of the road, and had no lawful right to the with these objects as to be safe when under use of the sidewalks. In the case of State v. careful guidance." The same may be said of Collins, 17 Atl. Rep. 131, (decided by the su- the bicycle. To declare their use upon the preme court of Rhode Island,) the court says: public highway a nuisance would prohibit "The question raised by the exceptions is their use in the manner in which they are inwhether a bicycle is a carriage or vehicle, tended; and that it must be supposed that within the meaning of Pub. St. R. I. c. 66, horses of ordinary gentleness have become so § 1, which enacts that every person travel- familiar with them as not to scare at and as ing with any carriage or other vehicle, who to be safe when under careful guidance. shall meet any other person so traveling on In the case of Macomber v. Nichols, 34 any highway or bridge, shall seasonably drive Mich. 212, the court say: "Injury alone will his carriage or vehicle to the right of the never support an action on the case. There center of the traveled part of the road, so as must be a concurrence of injury and wrong. to enable such person to pass with his car- If a man does an act that is not unlawful in riage or vehicle without interference or in- itself, he cannot be held responsible for any terruption.' We are of the opinion that it is resulting injury unless it be at a time or in a carriage or vehicle which carries a person a manner or under circumstances which renmounted upon it, and which is propelled and der him chargeable with a want of proper redriven by him. The word vehicle' is cer- gard for the rights of others. In such a case, tainly broad enough to include any machine the negligence imputable to him constitutes which is used and driven on the traveled part the wrong, and he is accountable to perof the highway for the purpose of conveyance sons injured, not because damage has resultupon the highway. The purpose of the sec-ed from his doing the act, but because its betion is to prevent accident or collision, and ing done negligently or without due care has such accident or collision may happen from a resulted in injury. If the act was not wrongbicycle and other carriage meeting, unless ful in itself, the wrong must necessarily be the rule laid down in the section is observed." sought for in the time or manner or cirIn the case of Taylor v. Goodwin, 27 Wkly. cumstances under which it was performed; Rep. 489, L. R. 4 Q. B. Div. 228, a bicycle and injury does not prove the wrong, but was held to be a carriage. Although but few only makes out the case for redress after the courts have passed upon and defined the wrong is established." In this case, the acts rights of persons riding upon and propelling or complained of in each paragraph of the comdriving bicycles, yet such as have, have unan-plaint are the riding of the bicycle in the cenimously placed them upon an equality and ter of the highway at the rate of 15 miles per governed by the same rule as persons riding hour, to and within 25 feet of the faces of or driving any other vehicle or carriage; and the plaintiff's horses. It is these acts which we think this the proper rule to adopt. Al- are charged as negligence and as a wrong, though the use of the bicycle for the purpose but, as we have held, they are not unlawful of locomotion and travel is quite modern, yet acts and are not a wrong; hence they constiit is a vehicle of great convenience, and its tute no cause of action. To make a person use is becoming quite common. While travel- liable for the doing of such acts, they must ing upon the highways by means of horses be charged to have been done at a time or in has been in vogue much longer, and is more a manner or under circumstances which renuniversal at present than by means of bi- der him chargeable with a want of proper recycles, yet persons traveling by means of gard for the rights of others, which is not horses have no superior rights to those travel-done in either paragraph of the complaint ing upon the highway by improved methods While the use of the locomotive is of infinite ly more benefit than the bicycle in affording | apply the payment thereof to a note that means of travel, or the danger arising from Henry G. Smith holds against Richard Mills, its use is also infinitely greater, yet the horse, Peter Linn, D. F. Linn, and Jonah Freed, the locomotive, and the bicycle are all used for three hundred and seventy-five dollars, as affording a means of travel, and more or and interest. [Signed] JONAH FREED." less danger attaches to each. In discussing In both of the paragraphs mentioned it is the liability of horses to become frightened alleged that the appellee was indebted to the at the locomotive, the learned Judge COOLEY, appellant in the sum of $375, and that the inin delivering the opinion of Macomber v. debtedness was evidenced by a promissory Nichols, supra, says: "Horses may be, and note, executed by the appellee as principal, often are, frightened by locomotives in both and the other makers of the note as sureties; town and country; but it would be as rea- that the appellant did not pay the note, and sonable to treat the horse as a public nuisance the appellee was compelled to pay it. The from his tendency to shy and be frightened third paragraph of the complaint contains, in by unaccustomed objects, as to regard the lo- addition to the statements we have summarcomotive as a public nuisance from its tend-ized, the following: "That the parties enency to frighten the horse. The use of the one may impose upon the manager of the other the obligation of additional care and vigilance beyond what would otherwise be essential." Further on in the opinion he says: "If one in making use of his own means of locomotion is injured by the act or omission of the other, the question is not one of superior privilege, but it is a question whether, under all the circumstances, there is negligence imputable to some one, and, if so, who should be accountable for it?" The complaint in this case proceeds, and it can only be held good, on the theory that the plaintiff, riding in her carriage, had rights superior to the defendant, who was riding upon his bicycle, and such is not the law. They met upon the highway, each possessing equal rights to the use of it for riding and driving of their respective vehicles. The fourth and fifth paragraphs of the complaint were each insufficient, and the court properly sustained the demurrer thereto. There is no error in the ruling of the court. Judgment affirmed, with costs. (120 Ind. 27) FREED V. MILLS. (Supreme Court of Indiana. Sept. 18, 1889.) CONTRACT-INTERPRETATION. An instrument in the following words: "This is to certify that I have this day received a deed from Richard Mills and wife for certain real estate, in consideration of which I am to apply the payment thereof to a note that Henry G. Smith holds against Richard Mills, Peter Linn, D. F. Linn, and Jonah Freed, for three hundred and seventy-five dollars, and interest. [Signed] JONAH FREED," -is not a complete and enforceable contract. Appeal from circuit court, Lawrence county; GEORGE A. BICKNELL, Special Judge. Action by Richard Mills against Jonah Freed for failure to pay a certain note. Judgment for plaintiff, and defendant appeals. Geo. W. Friedley, Joseph Giles, and B. S. Lowe, for appellant. Voyles & Morris, for appellee. ELLIOTT, C. J. The second and third paragraphs of the appellee's complaint are founded on the following instrument, viz.: "This is to certify that I have this day received a deed from Richard Mills and wife for certain real estate, in consideration of which I am to tered into an agreement wherein it was stipulated that Mills should convey the land to Freed, in consideration that Freed would thereafter pay the note executed to Henry G. Smith by Mills, and his sureties, and that Freed received a deed, and took possession of the land." It will be observed that neither of the paragraphs of the complaint avers that there was any mistake in reducing the agreement to writing, nor does either of them aver that the written instrument is not full and complete. We must therefore assume that the writing contains the contract of the parties, unless we find from an inspection that it is incomplete. If it is a complete contract, then it must be deemed the sole repository of the agreement between the parties, in which all preceding oral negotiations and agreements are merged. If it is not a complete and enforceable contract, then there can be no recovery upon it without the aid of extrinsic facts giving it a legal effect and vitality. It is our judgment that the written instrument is not, on its face, a complete and enforceable one. There is no undertaking on the part of Freed to pay the note executed to Smith. He does not agree that he will pay the note, but that "he will apply the payment thereof to a note that Henry G. Smith holds.” Granting, for the present, that the language employed binds the appellant to apply the value of the land to the payment of the note, he will not be liable unless the value of the land is directly averred as a traversable fact. The word "apply" precludes the conclusion that there was a direct or absolute promise to pay the note. The utmost that can be conceded the appellee is that the writing binds the appellant to apply the value of the land to the payment of the note described in the instrument. There are, at all events, no words binding the appellant to pay off the note, nor are there words of assumption. If liable at all upon the face of the writing, he is liable because he has not made the application of the value of the land, and not upon any agreement assuming the payment of the note. Even upon the concession we have provisionally made, there can be no recovery upon the theory embodied in the complaint, for that treats the writing as binding the appellant to pay the note executed by the appel lee and his sureties. But it is evident that the contract is not perfect in itself, for to give the words their ordinary meaning would leave the writing without effect. Taking the words of the writing, the promise of the appellant is "to apply the payment thereof to the payment of a note Henry G. Smith holds," and these words in themselves can have no force, since it is obvious that the appellant could not apply the payment to the note, although he might so apply the value of the land, or the consideration agreed to be paid for it. Doubtless, extrinsic facts may be averred which will give force to the contract, but without them it is ineffective. As both the second and third paragraphs of the complaint were separately demurred to, and as they are insufficient, it is unnecessary to consider the question of the sufficiency of the answers. Judgment reversed. (120 Ind. 43) HARRISON v. MANSHIP. (Supreme Court of Indiana. Sept. 18, 1889.) LIBEL AND SLANDER-PLEADING-COMPLAINT. A complaint charging that defendant said concerning plaintiff, "He took and drove off my ducks, and sold them," without a colloquium or innuendo, states no cause of action. Appeal from circuit court, Hamilton county; D. Moss, Judge. William S. Christian, for appellant. Stephenson & Fertig, for appellee. fendant, which was accordingly done. The appellant filed a motion for a new trial, which was overruled, and the appellee had judgment for costs. The appellant assigns as error the overruling of his motion for a new trial, while the appellee assigns as crosserror that the complaint does not state facts sufficient to constitute a cause of action. The only question involved in the cause is the sufficiency of the above complaint, for if it states facts sufficient to constitute a cause of action it is plain that the court erred in its instruction to the jury to return a verdict for the appellee. Where words are used, not actionable within themselves, there should be some prefatory allegation of some extrinsic matter, or an explanation of the particular and criminal meaning of the words. This introductory matter having been stated, the colloquium should connect with it the speaking of the words complained of, leaving to the innuendo its proper office of giving those words that construction which they bore in reference to the extrinsic fact, or explanation of their particular meaning. If a crime has been committed, and the words sued for were spoken in reference to it, that matter should be averred. If the defendant has been in the practice of using the words to express the commission of a crime, that fact should be alleged. If a word or phrase has a particular and criminal meaning, different from its ordinary import, and was used in its oppro COFFEY, J. This was an action of slan-bious sense by the defendant, those facts der, brought by the appellant against the appellee, in the Hamilton circuit court. The complaint in the cause, omitting the formal parts, is as follows: "The plaintiff says that Thomas Manship, defendant, on the day of December, 1886, at said county and state, in presence and hearing of divers persons, falsely and maliciously spoke and uttered of and concerning the plaintiff the following false and malicious words: That he (meaning plaintiff) took and drove off his ducks, and sold them; that he (meaning plaintiff) drove his (meaning defendant's) ducks off, and sold them; that he (meaning plaintiff) drove his (meaning defendant's) ducks off and sold them; and if he (meaning plaintiff) was so mean as to drive his (meaning defendant's) ducks off, and sell them, that he (meaning plaintiff) could have them; that Allen C. Harrison drove his (meaning defendant's) ducks off, and sold them, all of which charges were false and slanderous, whereby the plaintiff's character was brought into great and manifest and public scandal and disgrace, and he was damaged," etc. should appear. Hays v. Mitchell, 7 Blackf. 117. There is no colloquium or innuendo laid in this complaint. We have simply the words "He drove off my ducks, and sold them," without any averment as to the circumstances under which the words were spoken, nor as to the sense in which they were used, nor as to how they were understood. The simple question therefore for our determination is, do the words charged to have been spoken import the commission of a crime? We do not think they do. The verbs used are "take," "drive," and "sell," all of which, in their usual sense, denote innocent actions. Had the appellant averred any extrinsic facts tending to show the commission of a crime, and had he in any manner, by averment, connected the speaking of the words charged in the complaint with the cornmission of such crime, no matter how defective such averments, the complaint would have been good after verdict; but here, as we have seen, there is a total absence of any averment that a crime had been committed. Where language is susceptible of an innoThe appellee answered by way of justifica- cent and a criminal meaning, the court, after tion, to which a reply was filed, and the verdict for the plaintiff, upon a motion for a cause being at issue was submitted to a jury new trial in arrest of judgment, or upon an for trial. During the progress of the trial assignment of error, will adopt the latter the court came to the conclusion that the meaning; and where the language is renabove complaint did not state facts sufficient dered actionable by extrinsic circumstances, to constitute a cause of action, and instruct- defectively averred, the verdict will aid ed the jury to return a verdict for the de-them, but language not actionable per se, in the absence of extrinsic circumstances, will, ences of opinion are involved. In a case like not be so regarded, even after verdict. McFadin v. David, 78 Ind. 445. In our opinion, the complaint before us does not state a cause of action against the appellee, and the court did not err in directing a verdict in his favor. Judgment affirmed. (120 Ind. 56) BARLOW v. STATE. (Supreme Court of Indiana. Sept. 18, 1889.) MALICIOUS MISCHIEF-INTENT. Where it appears that defendant acted in good faith, under an honest claim of right, a conviction for maliciously and mischievously injuring the property of another cannot be sustained. Appeal from circuit court, Johnson county; L. J. HACKNEY, Judge. Miller & Barnett, for appellant. John C. McNutt, Pros. Atty., for appellee. this, the absence of malicious or mischievous (120 Ind. 54) STATE v. DITTMER. (Supreme Court of Indiana. Sept. 19, 1889.) CRIMINAL LAW-EXEMPTIONS. One who carries a claim "upon his own person" out of the state, with intent to deprive the debtor, who is within its jurisdiction, of the benewithin the meaning of Rev. St. Ind. 1881, § 2162, fit of exemption laws, "sends" it out of the state, which provides for the punishment of every person who, with intent to deprive a resident of the state of his rights under its exemption laws, "sends or causes to be sent " out of the state any claim against a debtor within its jurisdiction, for collection by garnishment. Appeal from circuit court, Dubois county; O. M. WELBURN, Judge. tion of property from levy and sale on execution or in attachment, or garnishment, "sends, or causes to be sent," out of the state, any claim for debt to be collected by proceedings in attachment, garnishment, or other mesne process, when the obligor is within the jurisdiction of the state, shall, upon conviction, be fined, etc. On acquittal of defendant, a question was reserved by the state. John L. Bretz and John F. Tieman, for MITCHELL, J. The appellant was found guilty of the charge of maliciously and mischievously injuring the property of John Hemphill, by plowing up and destroying the garden of the latter, in which were sown and planted lettuce, onions, and other vegetables. The uncontradicted testimony shows that Prosecution of George Dittmer for alleged the appellant is 18 years old, and that he violation of Rev. St. Ind. 1881, § 2162, prolives with and works for his father, John viding that whoever, with intent thereby to Barlow, who owns the lot on which the veg-deprive any bona fide resident of Indiana of etables alleged to have been destroyed were his rights under the statutes, on the exempgrowing. The lot had been rented to Hemphill some three years before, and had been used by him from year to year in part as a vegetable garden. It appeared, however, that no garden had been made, or seed sown or planted, the present year, but that some onions and lettuce had started to grow from seed which had fallen upon and remained in the ground over winter. In the latter part of March of the present year the appellant, by the direction of his father, entered upon the lot, and, with the aid of other employes, appellant. Chas. L. Jewett, for appellee. plowed the ground and sowed it in oats. There appears to have been some question ELLIOTT, C. J. The affidavit upon which between the father and Hemphill about the this prosecution is founded charges that the right to the possession of the lot, and the tes-appellee, "being the owner of a demand on a timony is uncontradicted that the appellant contract against George F. Atkins amountdid not know of the dispute, or that Hemp-ing to the sum of $9, with intent thereby to hill claimed the lot. There is not a syllable deprive the said George F. Atkins of his of evidence tending to show a malicious or rights under the statute of Indiana on the mischievous purpose on the part of the appellant. On the contrary, the entire evidence shows that he was simply obeying what he believed to be the rightful command of his father. Where a defendant is acting in good faith, doing what he honestly supposes he has a right to do, or what he believes it is his duty to do, he cannot rightfully be made amenable to the criminal law in order to settle questions of disputed right. This mode of settling disputes, in which only matters of purely private concern are involved, and in which the state has no possible interest, is to be discouraged. The machinery of the criminal law is not to be set in motion to redress merely private grievances, or to settle questions of property where honest differ subject of exemption of property in proceedings for garnishment, did then and there unlawfully send said claim into the state of Kentucky for the purpose of collecting the same by proceedings in garnishment against the said George F. Atkins and against the Louisville, Evansville and St. Louis Railroad Company, as garnishee defendants, the said railroad company being then and there indebted to the said George F. Atkins in the sum of thirty-three dollars; the said George F. Atkins being then and there a bona fide resident of the state of Indiana and a householder, and each and all of the said parties, including said railroad company, being then and there within the jurisdiction of the courts of Indiana.' The record recites that |