ment which we have before us is the one calling in question the ruling of the court in denying the motion for a new trial. But we cannot review any of the alleged errors assigned as ground for a new trial in this motion, because the latter is not properly in the record. Instead of being copied and inserted in the transcript as a part of the statutory record, which it is, this motion appears and is set out in a bill of exceptions. This procedure is not authorized, and the motion for a new trial therefore cannot be regarded as a part of the record. Wurfel v. State (No. 20,807, at this term) 78 N. E. 635, and authorities there cited; Thompson v. Thompson, 156 Ind. 276, 59 N. E. 845; Cooney v. American Ins. Co., 161 Ind. 193, 67 N. E. 989. In fact the record in this appeal in respect to its defects is on "all fours" with that of Wurfel v. State, supra, and under the ruling in that case the judgment must be affirmed without considering any of the questions discussed by counsel for appellant relative to the merits of the case. Judgment affirmed.

Where one of two debtors executing a joint note to plaintiff was solvent at that time, but afterwards became insolvent, plaintiff could come into equity to set aside a conveyance of land by the other debtor; the rule that equity would not extend relief to set aside a conveyance of one joint debtor so long as a remedy existed against another debtor not applying.

Appeal from Circuit Court, Elkhart County; Jas. S. Dodge, Judge.

Bill by Ellington C. Lamb against Henry Stark and another. From a decree for plaintiff, defendants appealed to the' Court of Appeals. Case transferred to the Supreme Court under provisions of section 1337u, Burn's Ann. St. 1901. Affirmed.

Harman & Zigler, for appellant. Perry L. Turner, for appellee.

MONTGOMERY, J. Appellee brought this action to collect a promissory note executed by Milo W. and Henry Stark, and to set aside, as fraudulent, certain conveyances of real estate. Milo Stark was adjudged a bankrupt pending the litigation, and the action dismissed as to him. Appellants answered by general denial, and, at their request, the court made a special finding of facts, in substance as follows: That Milo and Henry Stark executed the note August 19, 1901, which now amounts to $223, and at the date of the note Henry owned real estate as described, and Abbie N. Stark was his wife. That Henry continued to own the real estate until April 27, 1903, when he and his wife conveyed the same to David Ling1 Rehearing denied, 79 N. E. 895.

man, who on the same day, without consideration, reconveyed it to Henry and his wife. That on April 27, 1903, and continuously afterwards, Henry was and remained a resident householder of Elkhart county, Ind., and had no property, other than said real estate, subject to execution. That at the date of said conveyances, Milo Stark owned property of the value of $2,682, and was indebted to the amount of $550; but on September 11, 1903, he was insolvent and subsequently adjudged a bankrupt, and duly discharged in bankruptcy. That said conveyances were made to protect said Abbie N. Stark in the possession and use of the whole of said real estate, and with intent to defeat and defraud the creditors of said Henry Stark. The second conclusion of law stated upon such facts is as follows: "That said conveyances from the defendants Henry Stark and Abbie N. Stark to David Lingman, and from said David Lingman to the defendants, Henry Stark and Abbie N. Stark, are each fraudulent and void as against the plaintiff, and should be set aside."

It is alleged that the court erred in this conclusion of law, and argued that, in the absence of a finding that Milo Stark, as well as Henry, was insolvent at the time the fraudulent conveyances were made, this conclusion cannot be sustained. It is a familiar principle that resort to a court of equity may not be had, so long as an adequate legal remedy exists. In the application of this rule, it has been held by this court, that, so long as a legal remedy exists against one or more joint debtors, equity will not extend its relief and set aside a fraudulent conveyance of another of such debtors at the instance of the common creditor. Eller et al. v. Lacy, 137 Ind. 436, 36 N. E. 1088. See also, Geiser Mfg. Co. v. Lee et al., 33 Ind. App. 38, 66 N. E. 701. It is specifically found that Henry Stark was insolvent at the time of making the conveyances attacked, and at all times since, and that the deeds were without consideration and made with fraudulent intent. Milo Stark was solvent at the time the deeds were made, but became insolvent a few months afterwards, and was subsequently adjudged a bankrupt and discharged from his financial obligations. It is therefore plain that appellee must collect his debt from the real estate in controversy, or lose it. The circumstance that Milo Stark was solvent at the time the fraudulent conveyances were made, does not make them any the less fraudulent, and the rule forbidding a premature resort to equity was not intended to take away a right of action and deny a salutary remedy, but merely to limit their exercise to cases of actual necessity, and thereby prevent unnecessary litigation. No substantial reason is shown why appellee should not avail himself of the remedy sought in this action, but, on the contrary, it is entirely clear that, without equitable in

of said Ketcham, onto the right of way and track of defendant, and were killed.

Appellant contends that the effect of sections 5321, 5322, Burns' Ann. St. 1901, is to relieve the railroad company from liability for damages on account of stock which entered the right of way at private crossings, and that, the steers having entered appellant's right of way from a private crossing, it is not liable under the statute. In Elliott on Railroads, § 1200, it is stated: "Where gates are left open by the adjoining owner, for whose benefit they were erected, or by his servants, the company is not liable to him; but, if the animals belong to a third person, the company may be liable, notwithstanding the gates were left open by the adjoining owner." "The condition of the fence at the actual place of entry is the test for determining the company's liability." Ellictt, supra, § 1201. Indpls., etc., R. R. Co. v. Quick, 109 Ind. 295, 9 N. E. 789, 925; Toledo, etc., R. R. Co. v. Howell, 38 Ind. 447; Jeffersonville, etc., Co. v. Lyon, 72 Ind. 107. In Wabash R. R. Co. v. Williamson, 104 Ind. 155, 3 N. E. 814, the rule is thus stated: "As to Pettit (the landowner for whose benefit gates had been erected at the private crossing), therefore, the railway track must be considered as having been securely fenced at that point. As to all other persons, however, a different rule has been, and must continue to be, applied. As to all such other persons, the railway company was required, at its peril, to keep the gates closed." In support of the proposition that exemption from liability is good as against third parties, as well as against the landowner for whose benefit the crossing is maintained, the appellant cites Crim v. Conover et al. The facts are not analogous to the facts before us, and it is distinguished from the case at bar as are also the other cases cited by appellant. In L., N. A., etc., R. R. Co. v. Etzler, 3 Ind. App. 562, 30 N. E. 32, many cases are collected and the rule stated to be: "The question concerning a sufficient fence always relates to the place of entry, not to the place of the killing or injuring, if it be other than the place of entry." "If, having entered at a place where the company, being bound to fence, has not done so, the animal wanders or is driven by an engine along the track to another place thereon, and is there struck and injured by the engine, the company is liable, whether or not the place at which the injury is done be one at which the company is bound to fence, and whether or not that place be in fact fenced, and though in passing to that place from the place of entry the animal may have passed over a place at which the company was not bound to fence, as a public highway." The facts found by the court sustain the first paragraph of the complaint, and authorize the conclusions of law in favor of appellee.

The other questions discussed relate to the

issue of negligence formed on the second paragraph of the complaint, and it is not necessary to consider them. Judgment affirmed.

(38 Ind. A. 574)

LAKE ERIE & W. R. CO. v. HENNESSEY. (No. 5,519.)

(Appellate Court of Indiana, Division No. 1. Oct. 5, 1906.)

RAILROADS-INJURIES TO PERSON NEAR CARS

-COMPLAINT-SUFFICIENCY.

In an action for personal injuries, the complaint alleged that plaintiff was employed by a railroad as a car inspector, it being his duty to inspect cars placed on a transfer track by defendant railroad before the cars were received by plaintiff's employer; that at a certain time defendant placed several cars on the transfer track, whereupon plaintiff closed the switch, and that at that time defendant had no other cars that it had any intention or purpose or right to set on the track; that plaintiff proceeded to inspect the cars, knowing that defendant had no other cars to set out on the track that day; and that while plaintiff was under the cars defendant negligently ran a car toward the switch and opened it, so that there was a collision, whereby plaintiff was injured. Held, that the complaint was demurrable on the ground that it did not show that defendant violated any duty it owed plaintiff at the time of the injury; it not appearing that there was any time when cars might not be transferred, and it not appearing that defendant's servants knew that plaintiff was a car inspector, or even that he was about the premises.

Appeal from Circuit Court, Delaware County; Jos. G. Leffler, Judge.

Action by Alexander Hennessey against the Lake Erie & Western Railroad Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Jno. B. Cockrum and Gregory, Silverburg & Lotz, for appellant. Thompson & Thompson, C. A. McGonagel, and J. M. Fitch, for appellee.

ROBINSON, C. J. Suit for damages for personal injuries. Complaint in one paragraph; demurrer overruled; answer, general denial; trial; verdict for appellee, with answers to interrogatories; appellant's motion for judgment on the answers, and its motion for a new trial, overruled. Judgment on the verdict. The rulings on the demurrer, and on the motions for judgment and a new trial, are assigned as error.

The complaint avers that a transfer track connected the Y track operated by appellant and the track of the Chicago, Indiana & Eastern Railroad Company; that the transfer track was owned exclusively by the last-named road, and that after the construction of the transfer track it was used continuously for the transfer of cars and trains from one road to the other; that cars transferred remained upon the transfer track until the receiving party should have time to and did inspect the same before

taken away; that each of the companies knew that all such transferred cars were so inspected; that on September 17, 1903, appellee was in the employ of the Chicago, Indiana & Eastern Company as a watchman and a car inspector, that as such car inspector it was his duty to examine all cars set upon the transfer track by appellant to be received and shipped by the Chicago the Chicago road, and that it was his duty to make such inspection each day before 6 o'clock p. m. of the day the cars were placed upon such track; that in the proper discharge of his duties he was required to and did go and for a time remain under the cars so inspected; that on the above date, at half past 5 o'clock p. m. appellant placed upon the transfer track four freight cars, three of which were loaded and one empty, which were to be received and shipped by the Chicago road; that immediately after the cars were placed on the track appellant closed the switch, so that no other cars could be placed on the transfer track until the switch should be first opened; that after the four cars had been placed on the transfer track by appellant it had no other cars "at said time that it (the said defendant company) had any intention or purpose or right to set upon said track"; that thereupon, appellee, in the discharge of his duty as such car inspector, proceeded to inspect such cars; that he knew appellant had no other car or cars to put on the transfer track during that day, and that the switch was closed; that when he went under the cars to inspect the same a heavily loaded coal car was standing on appellant's track, which had been transferred to appellant by the Chicago road to be by appellant delivered to the consignee; that at the time appellant received the car the brakes on the same were out of repair, but in what respect appellee was not informed; that while appellee was under the cars, inspecting the same, appellant carelessly and negligently ran the coal car north at the rate of 20 miles an hour, and negligently failed to repair the brakes, and negligently omitted to provide any means for stopping the car, and when the car approached the switch at the south end of the transfer track, and while the car was still running at such high speed, appellant carelessly and negligently opened the switch and ran the car on the transfer track and against the cars appellee was inspecting, and negligently failed to give appellee any warning that the car was approaching, or of any danger; that when the car struck the cars appellee was inspecting, and under which he then was, the cars were started, striking appellee and injuring him; that he went under the cars for the purpose of inspecting the same; that he did not know appellant had or would open the switch and throw the coal car upon that track; that he had no

notice or knowledge of the opening of the switch or of the approach of the coal car, and that from the position he occupied under the car inspecting the same he could not see the approach of the car until it had struck the car upon which he then was; and that when the coal car struck the cars under which he was he was unable to extricate himself before he was hurt.

Taking together all the averments of the complaint as to the uses made of the transfer track, it must be concluded that the pleading does not show that appellant had no right to use the transfer track at the time it did. Whether appellant had no purpose nor intention to put any more cars on the track is not material, as it is not shown that appellee knew such purpose or intention and acted thereon. The car was placed on the transfer track about half past 5 o'clock in the afternoon, and it must be held that the pleading shows that appellant had a right to place it on the transfer track at the time it did. The pleading does not show that there was any time in the day during which cars should be transferred, and the presumption, as against the pleader, is that the transfer might be made at any time, and that the coal car was placed on the transfer track at a time when it was proper to do so. As far as disclosed, appellant's employés did not know that appellee was car inspector, or that he was there at the time to inspect cars, or that he was about the premises. In view of the particular facts averred, the averment that appellant had no right to put a car on the transfer track at the time it placed the coal car thereon is no more than a conclusion. Moreover, it appears that when the four cars had been placed on the transfer track appellee began immediately to inspect them, and while under the cars (how long after the four cars had been transferred does not appear) the coal car was thrown against the cars he was inspecting. Even if the company did not, at the time appellee began inspecting the cars, have "any intention" of placing other cars on the transfer track, it is not averred that appellee knew of such intention and was relying on it. It does not appear that appellee made any inquiry to ascertain whether appellant was going to use the transfer track after placing the four cars thereon. He knew the coal car was on a track near the transfer track, and that it was at a time when other cars could rightfully be placed on the transfer track, and that there was nothing to prevent the placing of a car on that track at any time. He made no inquiries about the switching of any other cars, was not misled by anything that was said, and took no precautions whatever to let his presence under the car be known. We think the pleading fails to show that appellant violated any duty it

owed to appellee at the time the injury was inflicted. The demurrer to the complaint should have been sustained. Judgment reversed.

(38 Ind. A. 578)

WESTERN UNION TELEGRAPH CO. v. MCCLELLAND. (No. 5,729.)

(Appellate Court of Indiana, Division No. 2. Oct. 5, 1906.)

-

1. TELEGRAPHS
FOR PENALTY-COMPLAINT.

DISCRIMINATION

Where, in an action against a telegraph company to recover a statutory penalty for discrimination, etc., in the transmission and delivery of a message, the complaint averred that defendant acted in bad faith, and was guilty of negligence and discrimination against plaintiff, and neglected to transmit and deliver the message in the order of time in which the same was received, and postponed the transmission and delivery of the message out of its order, etc., the complaint was not objectionable for failure to allege an omission to transmit the message in the order of time in which it was received with reference to the receipt and transmission of other messages handled by defendant at the same office.

2. SAME-INCONSISTENT THEORIES.

Burns' Ann. St. 1901, §§ 5511, 5512, provide a penalty recoverable against a telegraph company for discrimination and partiality in the transmission and delivery of messages, etc. Held that, where a complaint to recover a penalty under such section alleged a violation of the telegraph company's duties imposed by the statute, the complaint was not objectionable as proceeding on inconsistent theories, because it alleged that defendant was guilty of willfulness, discrimination, and negligence in the transmission of plaintiff's message.

3. PLEADING-DUPLICITY-REMEDY.

Where a complaint is bad for duplicity, the remedy is either by a motion to strike out or to separate the causes of action into paragraphs.

[Ed. Note.-For cases in point, see vol. 39, Cent. Dig. Pleading, §§ 1108, 1194.]

4. TELEGRAPHIS DISCRIMINATION CHARGE-PENALTIES.

OVER

Where plaintiff was charged an excessive rate for the transmission and delivery of a message by a telegraph company, the latter was liable for a penalty for discrimination imposed by Burns' Ann. St. 1901, §§ 5511, 5512.

[Ed. Note.--For cases in point, see vol. 45, Cent. Dig. Telegraphs and Telephones, § 21.] 5. SAME-BURDEN OF PROOF.

Where there was an unreasonable delay in the transmission of an urgent message, the burden was on the telegraph company, in an action to recover a penalty imposed for discrimination by Burns' Ann. St. 1901, §§ 5511, 5512, to show that other messages for the point to which plaintiff's message was directed were received at defendant's sending office and forwarded before the one sent by plaintiff.

[Ed. Note.-For cases in point, see vol. 45, Cent. Dig. Telegraphs and Telephones, § 61.1 6. SAME-UNREASONABLE DELAY.

Where it was admitted that a message would be received at destination almost instantly from the time it was put on the wires at the sending office, and the urgency of the message not only appeared on its face, but the agent at the sending office was advised of that fact, a delay of two hours in transmission was unreasonable.

[Ed. Note. For cases in point, see vol. 45, Cent. Dig. Telegraphs and Telephones, § 33.1

If a party to a civil or criminal case has evidence peculiarly within his own knowledge, and does not produce it, it is presumed that, if produced, its effect would be detrimental to him.

[Ed. Note.-For cases in point, see vol. 20, Cent. Dig. Evidence, § 95; vol. 14, Cent. Dig. Criminal Law, § 732.]

Appeal from Circuit Court, Hendricks County; Thos. J. Cofer, Judge.

Action by Charles F. McClelland against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Chambers, Pickens, Moores & Davidson, Owen Pickens, O. E. Gulley, and G. H. Fearons, for appellant. T. S. Adams and Brill & Harvey, for appellee.

WILEY, J. Action by appellee to recover the statutory penalty for failure to transmit a telegraph message delivered to it. The complaint, which is in a single paragraph, was held good as against a demurrer. Answer in denial, trial by jury, verdict, and judgment in favor of appellee for $100. Two questions are presented and discussed: First, that the complaint is insufficient; and, second, that the motion for a new trial was improperly overruled.

The complaint avers that appellee was a funeral director, and had been engaged to meet a party in Indianapolis from Asheville, N. C., take charge of a corpse, accompany it by train to Danville, Ind., where appellee resided, and had his place of business, and convey the corpse to the home of the father of the deceased. It is averred that appellant owned and operated a telegraph line between Indianapolis and Danville, and was engaged, for hire, in receiving and transmitting by wire telegraph messages; that at both of said places appellant maintained public offices and places of business, for receiving and transmitting messages; that appellee had been requested and engaged to accompany said corpse from Indianapolis to Danville on what was known as train "No. 43" on the "Big Four Railroad," which was scheduled to arrive at the latter place shortly after midnight; that he had arranged to have all necessary conveyances at the station on the arrival of the train to convey the funeral party to the residence of the deceased's father; that just before the time for said train to leave for Danville he was notified that, on account of "washouts" on said railroad, trains could not run on it, and that it would be necessary to transfer said funeral party to the Vandalia train to be