for usurious interest paid by appellee was contrary to law. Whatever the rule may be in other states, it has been uniformly held in this jurisdiction that usurious interest could at common law be recovered back in an action brought for that purpose. Lacy v. Brown, 67 Ind. 478, and cases cited; Musselman v. McElhenny, 23 Ind. 4, 6; Wood v. Kennedy, 19 Ind. 68; Smead v. Green, 5 Ind. 308, 309; Berry v. Makepeace, 3 Ind. 154; Bank v. Ensminger, 7 Blackf. 105-107, and cases cited. See note to Crawford v. Harvey, 1 Blackf. (2d Ed.) 382. See, also, Palmer v. Lord, 6 Johns. Ch. 95, 100-106; Wheaton v. Hibbard, 20 Johns. 290, 292, 293; Nichols v. Bellows, 22 Vt. 581, 54 Am. Dec. 85, and note; Association v. Robinson, 78 Tex. 163, 14 S. W. 227, 22 Am. St. Rep. 36, and note page 41; Zeigler v. Scott, 10 Ga. 389, 54 Am. Dec. 395, and note pages 400-402; 27 Am. & Eng. Enc. Law, 959, and cases cited in notes 3 and 4. The rule is that the borrower who has paid more than the legal rate of interest is not confined to the remedy given by statute, but may maintain assumpsit at common law to recover back the excess of interest paid, on paying or offering to pay the money lent with lawful interest. Berry v. Makepeace, supra; Palmer v. Lord, supra; Wheaton v. Hibbard, supra. Rev. St. 1843, p. 580, §§ 25, 26, fixed the legal rate of interest per annum, and (section 29, p. 581) provided that "no contract or assurance for the payment of money with interest, or upon which interest has been received, contracted for, taken, or reserved, after a greater rate than is allowed by the preceding sections of this article. shall be thereby rendered void; but whenever in any action brought on such contract or assurance, it shall appear upon a special plea to that effect, or otherwise, that a greater rate of interest has been directly or indirectly reserved, contracted for, taken, or received, than is allowed by law, the defendant shall recover his full costs in such suit, and the plaintiff shall only recover judgment for the principal sum due him without interest thereon; or if he shall have taken or received such interest, or any part thereof, before the rendition of such judgment, the same shall be deducted from such principal sum, and the judgment shall be rendered for the balance as above." It was provided in section 30, p. 581, that "any person who shall have paid a greater amount of interest or value than is above allowed, or his personal representatives may recover against the person or the corporation who shall have taken the same, or against the personal representatives of such person, the whole amount of interest or value which he may have paid, if such action be brought within a year after the payment of the same." In Berry V. Makepeace, supra, the appellant sued appellee to recover usurious interest paid in excess of 6 per cent. per annum, the legal rate fixed by Rev. St. 1843. Appellee, upon the theory that the action was brought under

section 30, p. 581, Rev. St. 1843, to recover the whole amount of interest paid, filed a plea which in effect alleged that the action was not brought within a year after the payment of such usurious interest. This court held that the action was not brought, under said section 30 of the statute, to recover the whole amount of interest paid, but was to recover the interest paid in excess of the legal rate, and that such action could be maintained at common law, independently of the statute. The court said: "The plea might have been applicable if the action had been brought under the statutory provision (Rev. St. 1843, § 30, p. 581) to recover the whole of the interest paid as illegal; but such is not the case. The suit is for the excess of interest paid, which may be recovered back in this form of action by the common law, and independently of the statute of the state. Bank v. Ensminger, 7 Blackf. 105."

This rule of the common law that usurious interest could be recovered back was modified by statute in 1865, when the legislature passed an act (Acts Sp. Sess. 1865, p. 176, 3 Ind. St. p. 316; 1 Rev. St. 1876, p. 600) amending sections 5 and 6 of the act of 1861, regulating interest on money (Acts 1861, p. 138; 2 Gav. & H. St. pp. 656, 657). The last clause of said section 5, as amended, provided "that in all cases in which money or anything of value shall have been voluntarily paid as interest for the loan, use or usance of money the same shall not be recovered back, either directly or by way of set off or counter claim or payment." While this section as amended was in force, usurious interest voluntarily paid could not be recovered back in a direct action for that purpose, nor could the debtor in any action against him by the party receiv ing such usurious interest recover the same back by way of set-off, counterclaim, or payment. Bowen v. Phillips, 55 Ind. 226, 235, 236. In Musselman v. McElhenny, supra, deIcided at the November term, 1864, under the interest law of 1861, and before the amendment of section 5 in 1865, this court, at page 6, said: "If usurious interest is paid on a note after its execution, it amounts to a payment of so much of the principal of the note; and, if the amount thus paid exceed the principal, it may be recovered back." In 1867 the legislature passed an act entitled "An act concerning interest on money and to provide for the recoupment of usurious interest," section 2 of which act contained the following provision: "All interest exceeding the rate of ten per centum per annum shall be deemed usurious and illegal, as to the excess only, and in any action upon a contract affected by such usury, such excess may be recouped by the defendant, whenever it has been reserved or paid before the bringing of the suit." Acts 1867, p. 151. 3 Ind. St. p. 317; 1 Rev. St. 1876, p. 599. Said act of 1867 contained no repealing clause, but it repealed by implication so much of the amended section 5, supra, passed in 1865, as prohibited the recoupment of usuri

ous interest in an action brought upon the contract affected by such usury; but the prohibition in said amended section 5 against the recovery of usurious interest voluntarily paid, in a direct action, or by way of set-off or recoupment, in any action brought by the party receiving such usurious interest upon any contract other than the one affected by such usury, was not repealed in any manner by the act of 1867, but remained in force as a part of the law of this state. Holcraft v. Mellott, 57 Ind. 539, 543, 544. Under said act of 1867, in an action on the contract affected by usury, if the excess of the interest voluntarily paid by the debtor over 10 per centum per annum amounted to more than the balance due on the note sued upon, he could only recoup to the extent of such balance due on the note, and, on account of the unrepealed prohibition contained in said amended section 5, supra, could not recover a judgment for the excess of such usurious interest over the amount due on said note. Holcraft v. Mellott, 57 Ind. 544. In 1879 the legislature passed "An act concerning interest and usury" (Acts 1879, pp. 43, 44; 3 Burns' Rev. St. 1894, §§ 7043-7050; Horner's Rev. St. 1897, §§ 5198, 5205), the last section of which repealed in express terms all acts on the subject of interest. The amended section 5, supra (Acts Sp. Sess. 1865, p. 176, 3 Ind. St. p. 316; 1 Rev. St. 1876, p. 600), which prohibits the recovery of usurious interest voluntarily paid, was therefore repealed by section 7050, Burns' Rev. St. 1894 (section 5205, Horner's Rev. St. 1897).

Where a statute or rule of the common law is repealed or modified, and the repealing or modifying act is afterwards expressly or impliedly repealed by an act which manifests no intention that the statute or common-law rule repealed or modified shall continue repealed, the common-law rule is that the repeal of the repealing or modifying act revives the act or common-law rule so repealed or modified. Doe v. Naylor, 2 Blackf. 32: Lindsay v. Lindsay, 47 Ind. 283, and cases cited; Teter v. Clayton, 71 Ind. 237; Mathewson v. Iron Foundry, 20 Fed. 281; State v. Rollins, 8 N. H. 550; Gray v. Obear, 54 Ga. 231; Den v. Du Bois, 16 N. J. Law, 285; Hastings v. Aiken, 1 Gray, 163; 23 Am. & Eng. Enc. Law, 517; Bish. St. Crimes, § 186; Endl. Interp. St. § 475. The common-law rule in regard to the effect of the repeal of a repealing act has been changed so far as the same applies to acts of the legislature, by section 248, Burns' Rev. St. 1894 (section 248, Horner's Rev. St. 1897), which was enacted in 1877 (Acts 1877, p. 73). Teter v. Clayton, supra. Whether said section 248, supra, changes the rule as to the effect of the repeal of an act modifying a former act of the legislature, we need not determine. See, however, Bank v. Collector, 3 Wall. 495; Smith v. Hoyt, 14 Wis. 252; 23 Am. & Eng. Enc. Law, 519, and note 2; Endl. Interp. St. § 476.

The rule, however, in regard to the

repeal of an act repealing or modifying a rule of the common law, remains unchanged; and the repeal of the act repealing or modifying the common-law rule revives the commonlaw rule ab initio, and it exists the same as if it had never been repealed. The time during which statutes repealing the commonlaw rule remain in force is regarded only as a suspension of such rule of the common law. Winter v. Dickerson, 42 Ala. 92; Johnson v. Meeker, 1 Wis. 436; Com. v. Getchell, 16 Pick. 452; Endl. Interp. St. § 475. Said act of 1879 took effect May 31, 1879, since which time the common-law rule in regard to the recovery of usurious interest, as declared in Bank v. Ensminger, supra, and the cases following it, has been in force in this state, the same as it was before the taking effect of the amended section 5, supra, in 1865. It is true that section 4 of the act of 1879 (being section 7046, Burns' Rev. St. 1894; section 5201, Horner's Rev. St. 1897) provides that, "when a greater rate of interest than is hereby allowed [8 per cent.] shall be contracted for, the contract shall be void as to the usurious interest; and in an action on such contract, if it shall appear that interest at a higher rate than eight per cent. has been directly or indirectly contracted for, the excess of interest over 6 per cent. shall be deemed usurious and illegal and in an action on the contract affected by such usury, the excess over the legal interest may be recouped by the debtor whenever it has been reserved or paid before the bringing of the action." But, as we have shown, the borrower is not confined to the remedy given by statute, but may resort to the remedy given by the common law. Bank v. Ensminger, supra; Smead v. Green, supra; Lacy v. Brown, supra; Palmer v. Lord, supra; Wheaton v. Hibbard, supra. The payment of usurious interest is not a voluntary payment in such sense as to entitle the receiver to retain the amount paid above legal interest, but such payment is regarded as under the constraint of a formal, though illegal, contract, obtained by taking advantage of the necessities of the borrower, and therefore excepted from the ordinary rule that one voluntarily paying money on an illegal claim cannot maintain an action to recover such payment. Wheaton v. Hibbard, supra; Schroeppel v. Corning, 5 Denio, 236; Bank v. Hodgdon, 62 N. H. 300; Willie v. Green, 2 N. H. 333; Caughman v. Drafts, 1 Rich. Eq. 414; Fay v. Lovejoy, 20 Wis. 403; Wood v. Lake, 13 Wis. 84; Bank v. Plankinton, 27 Wis. 177; Grow v. Albee, 19 Vt. 540; Williams v. Wilder, 37 Vt. 613; Scott v. Leary, 34 Md. 389; Association v. McKnight, 35 Pa. St. 470; Thomas v. Shoemaker, 6 Watts & S. 179, 183; note to Zeigler v. Scott, 54 Am. Dec. 400-402; note to Association v. Robinson (Tex. Sup.) 22 Am. St. Rep. 41 (s. c. 14 S. W. 227); note to Davis v. Garr, 55 Am. Dec. 398-400; 2 Enc. Pl. & Prac. pp. 1019, 1020, and note on "Usury."

It follows, therefore, that, in the absence of a statute expressly prohibiting it, usurious interest which has been paid by a debtor may be recovered in a direct action, or in any action brought by the person receiving such usurious interest, on a contract express or implied against such debtor. Since the repeal of the amending act of 1865, supra, by the act of 1879, supra, there has been no statute in this state prohibiting the recovery of usurious interest paid by a debtor. It is clear from what we have said and the authorities cited that in this state, since the taking effect of the interest law of 1879, a borrower who has paid usurious interest may recover the same in a direct action brought for that purpose, or if the person receiving the usurious interest sues him upon the contract affected by such usury, or upon any other contract, for the payment of money, he may recover the same by way of set-off, recoupment, payment, or counterclaim, as the facts of the case may permit, the same as could have been done before the passage of the amendatory act of 1865.

It is next insisted that the court erred in overruling the separate motions of appellants to modify the finding and judgment of the court. The court made a general finding in favor of appellee, and the amount she was entitled to recover, and that the same was "collectible without the benefit of exemption laws." Judgment was rendered for the amount of the finding, and also provided that the same was "collectible without the benefit of exemption laws." Appellants made separate motions to modify the general finding and judgment by striking out of the finding and out of the judgment the amount of the recovery, and the words "collectible without the benefit of exemption laws." It it insisted by appellants that the amount of the recovery stated in the finding and judgment should have been stricken out, because the amount is for usurious interest paid; and the same cannot be recovered in a direct action, but can only be recouped in an action on the contract affected by the usury, and that the words "collectible without the benefit of exemption laws" should have been stricken out because the finding proceeds upon the theory that appellee was entitled to recover for usurious interest paid, which is not a tort." Each of said motions was overruled as a whole, to which ruling of the court appellants each excepted. As we have already held that appellee had the right to recover in a direct action usurious interest paid, it would have been error for the court to have sustained a motion to strike out the amount of recovery in the finding and judgment. The court did not err, therefore, in overruling said motions as a whole, even if it would have been error to have overruled motions to modify the judgment by striking out the words "collectible without the benefit of exemption laws," and asking no other relief. Whether such a motion should have

been sustained if made we need not and do not decide. The rule is that it is not error to overrule motions to modify judgments or interlocutory orders or motions to strike out evidence, pleadings, judgments, or interlocutory orders, where they are not well taken, as a whole. Spence v. Board Com'rs, 117 Ind. 573, 584, 18 N. E. 513; Heberd v. Wines, 105 Ind. 237, 239, 240, 4 N. E. 457; Mathews v. Droud, 114 Ind. 268, 271, 272, 16 N. E. 599; Pape v. Wright, 116 Ind. 502, 508, 509, 19 N. E. 459, and cases cited; Waymire v. Lank, 121 Ind. 1, 22 N. E. 735; Snideman v. Snideman, 118 Ind. 162, 164, 20 N. E. 723; Binford v. Young, 115 Ind. 174, 176, 16 N. E. 142, and cases cited; Railway Co. v. Falvey, 104 Ind. 409, 416, 3 N. E. 389, and 4 N. E. 908; Carver v. Louthain, 38 Ind. 530, 541; W. U. Tel. Co. v. State, 147 Ind. 274, 277, 45 N. E. 473. Finding no available error in the record, the judgment is affirmed.

HASSLER et al. v. HEFELE.1 (Supreme Court of Indiana. April 29, 1898.) SEPARATE JUDGMENTS-APPEAL-AFFIRMATIVE ERROR-TRIAL BY JURY.

1. Burns' Rev. St. 1894, § 579 (Rev. St. 1881, $570), provides that a judgment may be rendered against individual defendants, though all the defendants have been summoned, if "the plaintiff would be entitled to a judgment against such defendants if the action had been against them severally." Held that, where a plaintiff brought her joint cause of action against two defendants, she can recover a separate judgment against each for one-half of her claim.

2. Where error is alleged, the error must be shown, and it is not enough to say the court erred or that appellant's contention should be sustained.

3. A suit to enforce the equitable lien of a vendor on sale of real estate is not triable by a jury.

Appeal from superior court, Vanderburgh county; John H. Foster, Judge.

Action by Mary Hefele against Annie Hassler and others. From a judgment for plaintiff, defendants appeal. Affirmed.

Hornbrook & Wheeler, for appellants. Lewis J. Herman, for appellee.

HOWARD, C. J. This was an action to enforce and collect a vendor's lien for purchase money due on sale of real estate. The facts, as found specially by the court, show: (1) That on and prior to March 30, 1896, the appellee and the appellants Annie and Carrie Hassler, and one Mary Hassler, were each the owner as tenants in common of the undivided one-fifth of certain described real estate, being a part of lot 88, in the old plan of the city of Evansville, and the appellants Fred W. and Elizabeth Harnishfeger were the owners of the remaining onefifth thereof; and that the same parties were also the owners, in like proportions, as tenants in common, of certain other real estate, being a part of lot 59, in said original plan of said city. (2) That on said March

Rehearing pending.

30, 1896, it was mutually agreed among said tenants in common that the appellee and the appellants Harnishfeger should convey their severel interests in said first-described real estate, in lot 88, to the appellants Annie and Carrie Hassler, and to the said Mary Hassler; in consideration of which the lastnamed parties should convey to those first named their several interests in said seconddescribed real estate, in lot 59, and should also pay, each one-third, the sum of $500 to the said first-named parties, one-half of said sum to be paid to the appellee and the remainder to the Harnishfegers. (3) That thereupon the appellee agreed to convey to the Harnishfegers her interest in said seconddescribed real estate, in lot 59, in part consideration of which the Harnishfegers agreed to assign to her their claims against the Hasslers for the one-half of said $500. (4) That on said March 30, 1896, said conveyances as so agreed to were duly executed and delivered. (5) That on March 31, 1896, the Harnishfegers, as agreed, assigned in writing to appellee the amount due them of said $500 by Annie and Carrie Hassler, being $166.66. (6) That on June 3, 1896, the appellee filed her complaint against the appellants Annie and Carrie Hassler, in two paragraphs, in the first of which she alleged an indebtedness due her from them growing out of said agreements, and alleging in the second paragraph an indebtedness due to the Harnishfegers, also growing out of said agreements, and subsequently assigned to her by them. On motion of the Hasslers, the court ordered each of these paragraphs docketed as a separate cause of action, the first proceeding as cause No. 8,911, and the second as cause No. 8,9112. The Hasslers filed their set-off in cause 8,911, which was allowed, and a judgment given them for $54.43, the excess of the set-off over appellee's claim in that cause, no part of which judgment has been paid. (7) That the appellants Annie and Carrie Hassler have not paid to the Harnishfegers, or to the appellee, their assignee, any part of the amount agreed to be paid to the Harnishfegers. (8) That the real estate so transferred to the Hasslers by the appellee and the Harnishfegers was conveyed without taking any security for the payment of any part of said $500, and as to that part of the consideration the conveyance was made upon the individual credit of the Hasslers. (9) That the appellee offers to have the judgment against her, as set out in finding 6, deducted from any amount that may be found due her. The court found, as conclusions of law, that the appellee should recover the full amount of the claim assigned to her by the Harnishfegers, one-half from each of the appellants Annie and Carrie Hassler; that said appellants should recover from the appellee the amount of their said judgment, with interest, one-half thereof to be received by each of said appellants; that the appellee should have

judgment against each of said appellants for the difference between the amounts so found due to her and due to each of them, respectively; and that she is entitled to a vendor's lien therefor against each of them upon their respective interests in the land so conveyed to them.

It is first objected that the appellee, having brought her joint cause of action against the two appellants Annie and Carrie Hassler, cannot recover a separate judgment against each of them for one-half the amount of her claim. In answer to a similar objection, it was said by this court in Railway Co. v. Treadway, 143 Ind. 689, 40 N. E. 807, and 41 N. E. 794: "The authorities cited by appellant in support of the rule asserted can have no force in this state, for the reason that the question is regulated by our Code of Civil Procedure. Section 570, Rev. St. 1881 (section 579, Burns' Rev. St. 1894), provides: "Though all the defendants have been summoned, the judgment may be rendered against any of them, severally, when the plaintiff would be entitled to a judgment against such defendants if the action had been against them severally.'" It is not a matter of doubt that the facts found in the case at bar would have authorized a judgment against each of the appellants Annie and Carrie Hassler, if the action had been brought against them severally. The statute above cited, therefore, fully justified the conclusions of law drawn by the court. See Douglass v. Howland, 11 Ind. 554. In Railway Co. v. Treadway, supra, it was further said by the court: "In Lower v. Franks, 115 Ind. 334, 17 N. E. 630, on page 337, 115 Ind., and on page 632, 17 N. E., this court, in speaking of the foregoing sections of the Code of Civil Procedure, said: 'In the case of Hubbell v. Wolf, 15 Ind. 204, following the case of Blodgett v. Morris, 14 N. Y. 482, it was held, in terms, that this provision of the Code (section 579, Burns' Rev. St. 1894; section 570, Rev. St. 1881, as above cited), applies to all actions indiscriminately, whether founded upon contract or upon tort; that it is immaterial whether the complaint alleges a joint or a joint and several liability; that the right of recovery is, in this respect, to be regulated by the proof, and not by the allegations of the complaint; that, in other words, every complaint is, in the respect stated, to be treated as both joint and several, where there are two or more defendants.'" Moreover, a new trial ought not to be granted where, as is evident from the facts found in this case, actions brought severally against each of the appellants would result in the same recovery against each of them. Elliott v. Pontius, 136 Ind. 641, 35 N. E. 562, and 36 N. E. 421.

Objection is next made to the fourth and fifth conclusions of law, which hold that the vendor's lien should be foreclosed, and the undivided interest of each of the appellants sold to make payment of the amount found

due appellee. Counsel confine their remarks on this matter to an argument intended to show that the question designed to be urged by them is duly presented. As to the conclusions of law themselves, however, the only reason given to show that the court erred is the following: "There can be no doubt that appellants' contention should be sustained." This assertion is not sufficient to show the error, if any, of which appellants complain.

It is also contended that the court erred in requiring appellants to answer the second paragraph of the original complaint after the same had been redocketed as the complaint in this case, No. 8,9112. Counsel say they are at a loss to understand why they should be required to answer the complaint, but give us no reason to show that the court erred in so requiring them to answer. It is not enough to say that the court erred. error should be shown.

The

It is finally contended that the court erred in refusing appellants' demand for a jury trial. It is doubtful whether the question is in the record. There was no motion for a new trial, and no bill of exceptions. See Ketcham v. Coal Co., 88 Ind. 515; Mattingly v. Paul, Id. 95; and other cases cited in Elliott, App. Proc. § 612, note 4. Besides, the suit was one to enforce the equitable lien of a vendor on sale of real estate, and, as such, of exclusive equitable cognizance, and so not triable by jury. The result reached by the court was correct. Judgment affirmed.

April 28, 1898.)

KELLER v. GASKELL et al. (Appellate Court of Indiana. INJURY TO EMPLOYE-DANGERS-WARNING-FELLOW SERVANTS — - CONTRIBUTORY NEGLIGENCETRIAL SPECIAL VERDICT-SUFFICIENCY-HARMLESS ERROR.

1. An employer is under the same obligation to warn his employé of dangers, whether the work required is outside of the contract of employment or not.

2. A special verdict found that plaintiff, a boy nearly 18 years old, while in defendant's employ, was directed to repair a belt on a line shaft; that defendant knew he undertook to do so without stopping the engine, but gave no warning of danger; that plaintiff, by his youth and inexperience, did not appreciate the danger, and did not know of a set screw substantially obscured from view, and was caught by it and injured; that for three weeks before his injury he had oiled bearings within three inches of the screw, and had frequently stopped the engine himself, and, had he done so, the injury would not have occurred, and he could have seen the screw if he had looked for it, and he had seen the engine stopped when other repairs were made. Held, that the findings were not so ambiguous or contradictory as to preclude a recovery.

3. An employer, sued for a negligent injury to an employé, could not be harmed by a refusal to submit to the jury the question as to whether another employé, who gave directions to plaintiff, was a co-employé, where such a relation must be inferred from the facts found by the special verdict.

4. Where the facts are found by special verdict, it is for the court to determine whether two persons are fellow servants.

5. A master placing an inexperienced boy under the command of a fellow servant, without warning the boy of the hazard of his work, is liable for injuries to the boy, caused by the co-employe's failure to warn him.

6. It is proper to refuse to submit questions to the jury as to sums allowed as separate items for damages for personal injuries, where the items are such as need not be specially pleaded.

7. A special verdict finding that an injured employé exercised all the skill and prudence which he had, and which was such as persons of his age would exercise under the circumstances, and as is generally possessed by boys of his apparent age, sufficiently shows that he was free from contributory negligence.

Appeal from circuit court, Dekalb county; J. W. Adair, Judge.

Action by Frank Gaskell against Josiah O. Keller and wife. From a judgment for plaintiff, Josiah O. Keller appeals. Affirmed.

S. F. Swayne and A. A. Chapin, for appellant. E. V. Harris and F. S. Roby, for appellees.

BLACK, J. On a former appeal in this cause it was determined that in the special verdict then under consideration it was not sufficiently shown that the plaintiff was free from contributory fault. Keller v. Gaskill, 9 Ind. App. 670, 36 N. E. 303. Upon the return of the cause for a new trial, it having been suggested that the plaintiff, Frank Gaskell, had reached his majority, his next friend was discharged, and thereafter the cause was prosecuted by the plaintiff in his own name alone against the original defendant, Josiah O. Keller, now the appellant, and Anna Keller, who was made an additional defendant in an amended complaint in two paragraphs. The issues formed were tried by jury, and a special verdict was returned. A motion of the defendant Anna Keller for a new trial was sustained. A like motion of the defendant Josiah O. Keller was overruled, and judgment was rendered against him on the special verdict. He appeals, naming his co-defendant and the plaintiff as appellees in the assignment of errors.

The overruling of the joint demurrer of the defendants to each paragraph of the second amended complaint being assigned as error, it is claimed in argument that neither paragraph of the complaint stated facts sufficient. The learned counsel for the appellant suggest that both paragraphs of the complaint are objectionable, on the ground that neither shows such a condition as made it obligatory upon the appellant to warn the plaintiff of his hazardous attempt, and that neither shows that he was free from contributory negligence. On the former appeal it was decided that the second paragraph of complaint was sufficient to withstand a demurrer. Upon comparison of that paragraph (which is shown by the record now before us) with the second paragraph as last amended, wo do not find any substantial difference between them upon the