writing of the taking up and impounding, and that he could have the cattle by paying the appellant what the stock law required, and requesting the appellee to come and get the cattle; the notice being signed by the appellant in his official character as supervisor. The appellee, about noon of the same day, upon receipt of the notice, before receiving which he did not know of the escape of the animals, sent a man to the appellant at his residence to take away the cattle. The messenger communicated the appellee's demand for the animals, but the appellant refused to surrender them. He based his defense in this action upon the provision of the statute of March 7, 1887, (Acts 1887, p. 38,) making it the duty of road supervisors, upon view or information, to cause all horses, mules, cattle, etc., "found running at large upon the roads, commons, or uninclosed lands within their respective districts, which are not authorized to run at large by order of the board of county com. missioners, as by law provided, to be impounded, and such other proceedings had as required by the provisions of chapter 11 of the Revised Statutes of 1881, being an act concerning animals running at large. Animals which escape from an inclosure wherein they have been placed by their owner for the purpose of confining them, and which he endeavors to recover when he learns of their escape, cannot be regarded as animals running at large within the meaning of this statute. McBride v. Hicklin, 124 Ind. 499, 24 N. E. Rep. 755, and cases there cited; Kinder v. Gillespie, 63 Ill. 88. The judgment is affirmed, with costs. (1 Ind. App. 263)

MCKENDRY et al. v. SINker, Davis & Co. (Appellate Court of Indiana. May 1, 1891.) APPEAL-PRACTICE-REVIEW-WARRANTY-NEW TRIAL.

1. A party who announces his intention of reserving special questions for decision on appeal, as allowed by Code Ind. § 630, is not thereby precluded from prosecuting a general appeal raising the same questions.

2. An assignment as cause for a new trial of the giving of "instructions numbered from 1 to 9, inclusive, and in giving each of said instructions, "challenges the correctness of each instruction severally.

3. In an action for the alleged breach of a warranty implied in the sale of a boiler for a special purpose, where the plea is a general denial, it is error to instruct the jury that the burden is on the defendants to prove that the unfitness of the boiler was not caused by any defect in its construction.

Appeal from superior court, Marion county; L. C. WALKER, Judge.

A. C. Harris, for appellants. Ayres, Brown & Harvey, for appellee.

CRUMPACKER, J. McKendry & Kriby sued Sinker, Davis & Co. in the Marion superior court for damages for an alleged breach of warranty implied in the sale of a steam-generating boiler. They alleged in their complaint, in effect. that they were engaged in operating a heading factory at Muncie, Ind., and in 1887 they purchased of Sinker, Davis & Co., a corporation engaged in manufacturing boilers in the city of Indianapolis, Ind., a boiler to

supply motive power to their said heading factory. That said boiler was bought for a specific purpose, which was known to the vendor under such circumstances as to raise an implied warranty of its fitness and adaptability to the purpose for which it was bought. It was delivered to the purchasers at the city of Indianapolis, and by them taken to Muncie, and properly set up in their factory, and adjusted to the machinery therein; and upon a fair test it proved to be unfit for the purposes for which it was purchased, and failed to fill the conditions of the warranty. Issues were joined by the general denial, and the cause was tried in said court in special term, by a jury, and a verdict returned in favor of the plaintiffs below. With the general verdict the jury returned answers to a series of interrogatories submitted to them under the direction of the court, at the request of the parties. The defendant moved for a new trial, assigning a number of reasons therefor, among which was error of law in giving to the jury instructions numbered from 1 to 9, inclusive, and in giving each of said instructions. This motion was denied by the court, and exceptions were duly saved, and judgment was entered upon the verdict. All of the instructions given, with the exceptions duly indorsed thereon, and signed by the judge, were filed and made part of the record. A speclal bill of exceptions was prepared and tendered by the defendant, reciting what the evidence tended to prove, and the defendant announced to the court its intention to appeal from the judgment under section 630, Rev. St. 1881, saving and reserving for the decision of the appellate court questions arising upon the exceptions to the instructions given, and especially to instruction No.5. This bill of exceptions was duly signed and approved by the presiding judge, and made part of the record. The whole record, thus made up, was taken before the superior court in general term, on appeal, and the only error assigned there was the overruling of the motion for a new trial. The court in general term reversed the judgment for error in giving instruction No. 5, and directed a new trial. This appeal brings before us for review the judgment of the superior court in general term, ordering a new trial of the cause.

We are confronted at the outset with a question of practice. Counsel for appellants very earnestly insist that the record presents no question for decision, and they devote considerable space to the discussion of appeals under section 630 of the Code. We have before us the same record that, in legal contemplation, was before the superior court in general term; and, if no question was properly raised by the record, it follows, as a matter of course, that the judgment of the general term cannot stand. The record contains the pleadings, entries, motion for a new trial, and the instructions, and properly presents the exceptions to the instructions, as upon a general appeal; unless we hold that when a party announces his intention to reserve special questions for decision, under section 630, he is thereby pre

v.

incation iu the motion discussed is one professing to assign newly-discovered evidence. The alleged new evidence consisted of admissions of the appellee, made after the trial. Such evidence does not constitute newly-discovered evidence within the meaning of the statute. Sullivan O'Conner, 77 Ind. 149; Stanley v. Peeples, 13 Ind. 232. There is in the record a bill of exceptions containing evidence. It is followed in the bill by these words: “The foregoing evidence being all the evidence that was given by the defendant in support of the soundness of the horse's eyes in controversy." To present to this court the question whether a new trial should have been granted upon the ground of newly-discovered evidence the record should show that it contains all the evidence given on the trial. Cones v. Ryman, 9 Ind. 277; Walpole v. Atkinson, 18 Ind. 434; Larrimore v. Williams, 30 Ind. 18; Sanders v. Loy, 45 Ind. 229; Jackson v. Fowler, 63 Ind. 85. See, also, Kitch v. Oatis, 79 Ind. 96; Hines v. Driver, 100 Ind. 315. The judgment is affirmed, with costs.

(1 Ind. App. 280)

PENNSYLVANIA Co. v. ZWICK. (Appellate Court of Indiana. May 2, 1891.) RAILROAD COMPANIES-STOCK-KILLING PLEADING -FENCING TRACK.

In an action against a railroad company for killing a cow, which entered upon the track at a point where it should have been securely fenced, but was not, an answer which recites a great many evidentiary facts to show why the road was not fenced, but does not aver that the road could not have been fenced at that point without interfering with the rights of the public or the free use of the tracks by the company or jeopardizing the safety of its servants, is demurrable.

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

S. Stansifer, for appellant. John C. Orr, for appellee.

CRUMPACKER, J. Zwick sued the Pennsylvania Company under the statute for killing a cow in Bartholomew county, which entered upon the railroad track and was killed, at a point where the company's railroad ought to have been securely fenced, but was not. An answer in one paragraph was filed to the complaint, and a demurrer was sustained thereto, and the appellant excepted, and, refusing to further plead, judgment was rendered in favor of the appellee for the value of the

cow.

The only error assigned here is in sustaining the demurrer to the answer. The answer is as follows: "The defendant, for answer, says that said cow got on the track of defendant's railroad and was killed within the corporate limits of the town of Taylorsville; that the Madison and Indianapolis Railroad Company, owning the road running north and south through said town, and the Jeffersonville Railroad Company, owning another railroad running parallel with and 56 feet east from the other road through said town, the said two companies, more than ten years ago, consolidated, and became one corporation to own and operate said two

railroads by the name of the Jeffersonville, Madison and Indianapolis Railroad Company, and immediately thereafter the owner company took up the track of the Madison and Indianapolis Railroad, except in and through said Taylorsville, and said track in said town is used in switching and storing cars for the business of Taylorsville of defendant, who is lessee of said railroad; that a street crosses said railroad about the center of said town, and the depot of said railroad is on said street, between said two tracks; that said old track extends south from said street 949 feet. On the main track there is a cattle-guard 825 feet south of said street, and from it south said main track is securely fenced; the fence on the west side of the main track, next to the old track, being 26 feet therefrom; and the main and said old track are not otherwise fenced from said street south. About midway between said street and cattle-guard a connecting track puts out from said old track, and connects with the main track at said cattle-guard, which connecting track is used in transferring cars to and from said main track and old track; and that part of said old track south of the north end of said connecting track is and has been all the time used for storing cars thereon, to be loaded and unloaded, and to stand there until removed therefrom in the course of defendant's business at said Taylorsville. There is a way along the west side of said old track all the way, used all the time by the public and for loading and unloading cars on said old track. Said cow got on said track and was killed north of said cattle-guard. She got on from the west side of said old track, at some point between said street and the south end of said old track. A map of the locality is as follows." Then follows a diagram, showing the location of the station-house, tracks, switches, etc. We are not favored with a brief upon the part of the appellee, but infer from the ar gument of appellant's counsel that the trial court held the answer insufficient because it did not aver that the railroad could not have been fenced at the point where the cow entered upon it without interfering with the rights of the public or the free use of the tracks, switches, and station ground by the appellant, or jeopardizing the safety of servants engaged in operating the railroad. It is insisted very earnestly on behalf of appellant that all of these facts are deducible from the facts contained in the answer, and that it is the duty of this court to make such deductions, and pronounce the law upon the facts thus ascertained. Where facts are sufficiently pleaded it is the duty of the court to proclaim the law applicable to them, and declare the rights and liabili ties of the parties upon such facts. it is the office of a pleading to assert ultimate or issuable facts, which alone can call into exercise the functions of the court to make the application of the law, and not mere matters of evidence from which such facts may be inferred. It is sometimes quite difficult to distinguish between issuable facts and evidential facts; but wo are embarrassed by no such difficulty in

But

determining the quality of the matter contained in the answer in this case, for it is plainly apparent that the greater portion of it consists of mere recitals of evidence. It is an elementary rule of common-law pleading, universally recognized and applied, that pleadings must contain ultimate facts, and not evidence; and this rule became and is a part of our system of code pleading. Avery v. Dougherty, 102 Ind. 443, 2 N. E. Rep. 123; Railway Co. v. Johnson, 96 Ind. 40; Allen v. Frazee, 85 Ind. 283; Boyd v. Olvey, 82 Ind. 294; Bliss, Code Pl. § 206. It is occasionally the function of this court to draw inferences from items of evidence, and declare the law upon the inferences thus drawn; but that function never can be called into action where the question relates to the sufficiency of pleadings, however conclusive the evidential or probative facts may be. In this case the demurrer admitted the truth of only such facts as were correctly contained in the answer, and in estimating the legal force of the answer all matters of evidence must be eliminated from it. Our conclusion is that, purged of the mere recitals of evidence, the answer fails in several essential particulars to state a cause of defense, and the demurrer to it was rightly sustained. The judgment is affirmed, with costs.

PENNSYLVANIA Co. v. Cook.

(Appellate Court of Indiana. May 2, 1891.) Appeal from circuit court, Bartholomew county; N. R. KEYES, Judge.

S. Stansifer, for appellant. John, C. Orr, for appellee.

CRUMPACKER, J. In this case the same question is raised for decision in the same manner as that which was considered and decided by this court in Pennsylvania Co. v. Zwick, ante, 508, and upon the authority of that case the judgment in this case is affirmed, with costs.

PENNSYLVANIA Co. v. HAYWORTH. (Appellate Court of Indiana. May 2, 1891.) Appeal from circuit court, Bartholomew county; N. R. KEYES, Judge.

S. Stansifer, for appellant. John C. Orr, for appellee.

CRUMPACKER, J. This case presents for decision the same question in the same manner as that which was considered and decided by this court in Pennsylvania Co. v. Zwick, ante, 508, and upon the authority of that case the judgment herein is affirmed, with costs.

(1 Ind. A. 275)

MCDONALD v. HUESTIS et al. (Appellate Court of Indiana. May 1, 1891.)

NEGOTIABLE INSTRUMENTS-SURETY.

Defendant signed as surety a note which bore interest from date, and which provided for the payment of attorney's fees, and the payee agreed in writing that defendant should "not be bound for interest, but for the principal alone." Held, that said agreement did not relieve defendant from liability for attorney's fees or for interest after maturity.

Appeal from superior court, Allen county; A. A. CHAPIN, Judge.

Bell & Morris, for appellant. Colerick & Oppenheim, for appellees.

"

NEW, J. This was an action by the appellees, Huestis & Hamilton, against the appellant and one Marion A. Webb. The complaint was on five promissory notes, each of date May 2, 1887,-the first due in 16 months; the others at successive dates thereafter, 30 days apart, with 7 per cent. interest from date until paid, with attor ney's fees,-executed by the appellant and said Webb to the appellees. The appellant answered separately for himself as to so much of the complaint as sought to recover interest and attorney's fees. It is alleged in the answer that the notes sued on were of a series of 20 notes, given at the same time for $50 each, wherein said Webb was principal and the appellant surety. That as a part of the same transaction in which the notes were given, and to induce the appellant to sign the same as surety, the appellees executed to the appellant a writing as follows: "Fort Wayne, May 2d, 1887. This memoranda is to show that upon the twenty notes this day executed to us by M. A. Webb, and Ronald T. McDonald, as his surety, McDonald shall not be bound to us for interest, but for the principal alone; said notes being for fifty dollars each, and due in successive dates, of twenty days apart. HUESTIS & HAMILTON. By MONTGOMERY HAMILTON. A reply was filed to the answer, and a demurrer thereto overruled, and exception taken. At the request of the appellant, the court made a special finding of facts, with statement of conclusions of law therefrom, as follows: "(1) That the defendants execut d and delivered the several notes herein sued upon, and the same were signed by said McDonald as surety for his co-defendant, Webb, and upon no other consideration; that said notes are due and wholly unpaid. (2) That contemporaneously with the execution of said notes, and as a part of such transaction, the said plaintiffs executed and delivered to said McDonald, to induce him to sign said notes as surety, their agreement in writing, which is in the words and figures following: [Here follows the agreement contained in the answer, and already given.] (3) That the reasonable attorney's fees for bringing suit on said notes are of the value and worth of ten per cent. of the principal and interest now due thereon. (4) That the amount now due on said notes, including interest at seven per cent. from the date thereof, is two hundred and eighty-five dollars and ninety-seven cents, and the attorney fee for the collection of the same is worth twenty-eight dollars and fifty-nine cents, making in all the sum of three hundred and fourteen dollars and fifty-six cents. (5) That the amount now due on said notes, including interest at six per cent. from the maturity of each note to the present time, is two hundred and fifty-eight dollars and thirty-three cents, and the attorney fee for the collection of the same is worth the sum of twenty-five dollars and eighty-three cents, making in all the sum of $284.16." Upon the foregoing facts, conclusions of law are stated by the court