lishing a grade crossing, which were overruled, and exceptions reserved. On the same day, the court, appellee having on the previous day paid the amount of the award to the clerk of the court, approved the award, and by decree vested in appellee the right to use the particular strip of real estate for the purposes of a crossing, to which exceptions were reserved. Appellant's motion to modify this decree was overruled, to which appellant excepted, and filed its bill of exceptions. On the same day, as appears by the return to the writ of certiorari, appellee filed its written exceptions to the award, to which appellant, on the 9th day of December, demurred. Appellant also filed its written exceptions to proceedings and award of commissioners. On the same day appellant filed its motion and affidavit for a change of venue from the county, and on the following | day the venue was changed to Fulton county, and 10 days' time given to perfect the change. On December 9, appellant gave appellee notice of appeal, and filed in the clerk's office its notice of appeal, and also its præcipe for a transcript. The appeal was filed in this court December 26, 1901, and submitted January 25, 1902. The errors assigned question the ruling upon the demurrer to the instrument of appropriation; the refusal to change the venue; striking out the answers and cross complaint; overruling appellant's motion to modify and amend the findings, orders, and decree establishing and relating to a grade crossing; overruling appellant's exceptions to the findings, orders, and decrees establishing a grade crossing; overruling the motion for a new trial; and overruling appellant's motion to modify the decree approving the award of the commissioners. * * * * By section 5153, Burns' Rev. St. 1901, a railroad corporation is given the general powers, and is subject to the liabilities and restrictions, expressed in the special powers following: Fifth. To construct its road upon or across any railroad or canal, so as not to interfere with the free use of the same, which the route of its road shall intersect, in such manner as to afford security for life and property; but the corporation shall restore the * road or highway, thus intersected, to its former state, or in a sufficient manner not to unnecessarily impair its usefulness or injure its franchises. Sixth. To cross, intersect, join and unite its railroad with any other railroad before constructed, at any point on its route and upon the grounds of such other railroad company, with the necessary turnouts, sidings, switches, and other conveniences, in furtherance of the objects of its connections; and every company whose railroad is or shall be hereafter intersected by any new railroad shall unite with the owners of such new railroad in forming such intersections, and connections, and grant the facilities aforesaid; and if the two corporations can not agree upon * the amount of compensation to be made therefor, or the points or manner of such crossings and connections, the same shall be ascertained and determined by commissioners, to be appointed as is provided hereinafter in respect to the taking of lands. By the act of March 8, 1897 (section 5158a, Burns' Rev. St. 1901), it is provided: "That where it becomes necessary for the track of one railroad company to cross the track of another railroad company, unless the manner of making such crossing shall be agreed to between such parties, it shall be the duty of the circuit court of the county wherein such crossing is located, or the judge thereof in vacation, to ascertain and define by its decree the mode of such crossing which will inflict the least practicable injury upon the rights of the company owning the road which is intended to be crossed; and if in the judgment of such court it is reasonable and practicable to avoid a grade crossing, it shall by its process prevent a crossing at grade." Section 5159, Burns' Rev. St. 1901, provides that in case the company is unable to agree for the purchase of real estate required in the construction of track, etc., it has the right to acquire title by special proceedings, which are provided in section 5160, Id. This section (section 5160) details these special proceedings, providing, among other things, for the appointment of three appraisers to appraise the damage, which appraisement shall be forthwith returned to the clerk of such court; that upon payment or tender by the company of the amount it may hold the interests of the land "for the uses aforesaid"; that the award may be reviewed by the court on written exceptions filed by either party in the clerk's office within 10 days after the filing of such award; "and the court shall take such order therein as right and justice may require, by ordering a new appraisement, on good cause shown: provided, that notwithstanding such appeal, such company may take possession of the property therein described, as aforesaid, and the subsequent proceedings on the appeal shall only affect the amount of compensation to be allowed." Section 5164, Burns' Rev. St. 1901, after providing for the appointment of an attorney in such cases, provides: "The court shall also have power, at any time, to amend any defect or informality in any of the special proceedings authorized by this act as may be necessary, or to cause new parties to be added, and to direct such further notice to be given to any party in interest, as it deems proper. It has been held that sections 5159, 5160, 5164, supra, the same being sections 14, 15, and 17 of an act approved May 11, 1852; and section 399 of the Code (section 402, Burns' Rev. St. 1901), the same being section 99 of an act approved June 18, 1852; and section 908 of the Code of Procedure, touching the writ of assessment of damages (section 920, Burns' Rev. St. * The 1901), the same being section 697 of an act approved June 18, 1852,-are to be construed in pari materia. Swinney v. Railroad Co., 59 Ind. 205; McMahon v. Railroad Co., 5 Ind. 413. Under the sixth subdivision of section 5153, supra, the commissioners, in case the two corporations could not agree, were to determine the point of crossing, the manner of the crossing, and compensation. act of 1897 (section 5158a, Burns' Rev. St. 1901) changes the above by making it the duty of the court, or the judge thereof in vacation, to define by its decree the manner of crossing, and, if reasonable and practicable, prevent a crossing at grade. The power to fix the point of crossing, and the compensation, seems to remain where the old statute placed it. In this case the court, by agreement, fixed both the point and manner of crossing. The statute is silent as to any action by the court or judge upon the award by the commissioners in the event no exceptions to the award are filed, but does provide that upon exceptions filed the court may review the award and take such order therein as right and justice may require. Whether or not the award, to become effective, requires the approval of the court or judge, where no exceptions are filed, it is clear that when exceptions are filed it requires some action of the court before the award is effective; because the filing of exceptions is an appeal to the court for review. The question at once suggests itself, what may be reviewed? The proceedings up to the appeal may be had before the court, or before the judge in vacation. The proceedings are to be begun in the county where the land lies; the court of record in the county where the land lies, or the judge thereof in vacation, appoints the appraisers, who are required to file their award with the clerk of such court. The statute says the award may be reviewed upon written exceptions filed by either of the parties. The award, under the old statute, was the action of the commissioners in fixing, not simply the compensation, but also the point of crossing and the manner of crossing. Lake Shore & M. S. Ry. Co. v. Cincinnati, W. & M. Ry. Co., 116 Ind. 578, 19 N. E. 440. And conceding, as argued, without deciding, that under the act of 1897 it is the duty of the court or judge to fix both the point and manner of crossing before appointing the commissioners, who are to fix only the compensation, still the commissioners, in fixing the compensation, would necessarily adopt the point and manner of crossing as fixed by the court or judge instead of determining those matters for themselves, because it takes all of these three elements to constitute the completed award. It is this award that may be reviewed. A review of the award is, in effect, an appeal from a decision. And, to properly review this decision, matters of law as well as of fact may be set up in the exceptions. McMahon v. Railroad Co., 5 Ind. 413. It is true the proceedings are special, and up to the appeal they are summary, but when one of the parties files exceptions to the award, and has thus effected his appeal from the award, the case is then tried by the procedure provided by the General Code. The case stands "for amendments to the exceptions, or filing additional exceptions by leave of the court, and for further proceedings as in civil actions." Swinney v. Railroad Co., 59 Ind. 205; Railway Co. v. Smith, 125 Ind. 509, 25 N. E. 153. And when tried, and an appeal taken to the appellate tribunal, the cause will be remanded if it is made to appear that the instrument of appropriation fails to state such facts as are necessary to give jurisdiction to act in the first instance. Lake Shore & M. S. Ry. Co. v. Cincinnati, W. & M. Ry. Co., supra. It must be admitted that, when the case is brought into the circuit court for review upon exceptions, that court has power, upon objection appropriately and seasonably made, to inquire into the sufficiency of the instrument of appropriation and the successive steps taken thereunder. It would certainly be an anomalous holding to say that the trial court, upon exceptions duly made, has no authority to determine the insufficiency of the instrument of appropriation or the regularity of the subsequent proceedings, and then to say that the final action of the court upon the exceptions shall be reversed because the instrument of appropriation was insufficient or the proceedings thereunder irregular. It has accordingly been held that that clause of the proviso to section 5160 providing that the subsequent proceedings on the appeal shall only affect the amount of compensation to be allowed "must be construed to mean the proceedings subsequent to the establishment of the regularity of the appropriation." Swinney v. Railroad Co., supra; Lake Shore & M. S. Ry. Co. v. Cincinnati, W. & M. Ry. Co., supra. See Hunt v. Railway Co., 99 Ind. 593. If we are right in concluding that the circuit court may, upon appeal, review the proceedings resulting in the award, and we so understand the above cases, it cannot be said that an action or order leading up to and including the award, by whomsoever made, was final, in the sense that such action or order might be reviewed in an appellate tribunal while the award is still pending in the circuit court upon exceptions filed thereto. The statute does say that the court shall define by its decree the mode of such crossing, but, as a decree may be either final or interlocutory, there is no authority for saying the legislature intended the decree should be final. It is true the court made a decree approving the award, but this was made before the expiration of the time for filing exceptions. This could not cut off the right to file exceptions, nor could it be such a decree as finally vested in appellee the right to appropriate the crossing. If exceptions were duly filed, the award was under review upon these exceptions, and there could be no final adjudication of appellee's right to appropriate appellant's property for a crossing until the court's final action upon the award. See Railroad Co. v. Kinsey, 87 Ind. 514; Railroad Co. v. Crawford, 100 Ind. 550; Railway Co. v. Swinney, 97 Ind. 586. The record shows that when this appeal was taken exceptions to the award had been filed bringing the case into the Miami circuit court for review, and that while pending a change of venue was granted to Fulton county, and 10 days' time given to perfect the change. Whether the change of venue was perfected or not, the record does show that the case has not been finally determined by the circuit court, from which this appeal is taken. If the change of venue was perfected, and the case is now pending in the Fulton circuit court, the complications which might arise from entertaining this appeal at this time at once suggest themselves. The exceptions constitute an appeal to the circuit court, and, until that court has reviewed the award and finally disposed of it, no appeal will lie to this court. The appeal is dismissed. 1. Under Burns' Rev. St. 1901, § 399, authorizing the court, in its discretion, and upon such terms as it may deem proper, for furtherance of justice, to direct any material allegation to be inserted, etc., in order to conform the pleadings to the facts proved, if such change does not substantially change the cause of action, where the evidence in an action for false imprisonment showed that plaintiff was imprisoned without her consent, but the complaint failed to allege such want of consent, there was no error in allowing the words "without her consent" to be inserted in the complaint after a demurrer thereto had been overruled. 2. A demurrer to a complaint does not apply thereto after it has been amended. 3. A complaint in an action for false imprisonment, showing that plaintiff was unlawfully restrained of her liberty by force by defendant's employés, acting within the scope of their duties, when questioned for the first time in the appellate court, was sufficient, since it showed facts sufficient to bar a second action. 4. Where the watchman and floor walker of a department store, whose general duty it was to protect the goods from being stolen, wrongfully accused a customer of stealing, placed her under restraint, and searched her, the proprietors of the store were liable in an action for false imprisonment, though the particular acts of the employés complained of were willful, and not directly authorized. 5. False imprisonment is an unlawful restraint upon one's freedom of locomotion or action. 1 Rehearing denied. 6. Imprisonment is the deprivation by one of the liberty of another without his consent. 7. Where a tort is committed upon a married woman, she cannot recover for expense incurred for medicines and medical treatment necessi tated by her injuries. 8. Where error was committed, in an action by a married woman for tort, in instructing that she could recover for medical attention, etc., a remittitur by plaintiff, expressly including that portion of the damages assessed on account of such medical attention, etc., rendered the error harmless. 9. Plaintiff, a woman whose appearance did not in any way invite suspicion or discourtesy, was publicly wrongfully accused of stealing by defendants' watchman and floor walker, while she was carrying some shoes, which she proposed to purchase, across defendants' store, with the permission of a clerk, in order to show them to some one, and was forcibly restrained of her liberty and searched by the watchman and floor walker, who, though requested by her so to do, refused to ask the clerk anything about the matter. The clerk, however, interposed, and plaintiff was released, but no apologies were made by any one, nor any regret expressed to her. Held, that a verdict of $2,000 was not so excessive as to show partiality, prejudice, or corruption on the part of the jury. Appeal from superior court, Marion county; James M. Leathers, Judge. Action by May E. Smith against Gustave A. Efroymson and others. From a judgment in favor of plaintiff, defendants appeal. Affirmed. Holstein & Berryhill and Wm. B. Hubbard, for appellants. Geo. W. Woods and Frank McCray, for appellee. ROBY, J. Appellee alleged in her complaint that she entered the store of the appellants to purchase shoes for her daughter; that after obtaining permission of the clerk to take the shoes to the opposite side of the room to show them to her daughter, who was in defendants' employ, at the "jewelry counter," she started across the room with the shoes for that purpose, but, before reaching her daughter, one West, a watchman, and Smith, foreman, while acting in the line of their employment for defendants, without right, without her consent, and violently, took hold of her, accused her of stealing shoes, and, without her consent, took her into a small alcove or small apartment connected with said store, and demanded that she give up and restore to them the articles they alleged she had stolen, and wrongfully and unlawfully restrained her of her liberty without her consent, and so restrained her until the clerk who had given her permission to take the shoes across the room explained the matter, when she was released; that there were many people in the store, who witnessed the occurrence, and that by reason of these acts she was shocked, humiliated, and insulted to such an extent that she was confined to her home with nervous prostration for many days; that her reputation was damaged, etc. The issue was formed by a general denial. The sufficiency of the complaint was questioned by a demurrer, which was overruled. Sec After the evidence was closed, the appellee was permitted to amend by inserting the words "without her consent" where they now appear in the pleading. This action of the court is assigned for error. The sufficiency of the complaint as amended is presented here by an assignment of error. There was no error in allowing the amendment. tion 399, Burns' Rev. St. 1901; Raymond v. Wathen, 142 Ind. 367, 372, 41 N. E. 815. The demurrer to the complaint does not apply to the amended complaint. Tague v. Owens, 11 Ind. App. 200, 38 N. E. 541. The amended complaint, being questioned for the first time in this court, is good, if it states facts sufficient to bar a second action. Real Estate Co. v. Macy, 147 Ind. 572, 47 N. E. 147. The pleading shows that appellee was unlawfully restrained from her liberty by force. It is therefore sufficient. Boaz v. Tate, 43 Ind. 60, 64; Hildebrand v. McCrum, 101 Ind. 62. It is averred that the acts complained of were done by "certain agents, employés, or clerks then in the service or employ of said defendants, to wit, one William West, a watchman, and one Smith, foreman, in said store, while acting in the line of their employment for said defendants," etc. The appellants invited the public to become their patrons, and to visit their place of business. The appellee accepted their invitation, and had a right to personal protection while at the store, especially as against the agents and servants of the appellants themselves. Dickson v. Waldron, 135 Ind. 507, 520, 34 N. E. 506, 35 N. E. 1, 24 L. R. A. 483, 488, 41 Am. St. Rep. 440. The appellants were responsible for the acts of the agents performed while engaged in the discharge of duties within the general scope of the agency, although the particular act was willful, and not directly authorized. Kingan & Co. v. Silvers, 13 Ind. App. 81, 88, 37 N. E. 413; Pennsylvania Co. v.. Weddle, 100 Ind. 138, 140; Railway Co. v. Sullivan, 141 Ind. 83, 88, 40 N. E. 138, 27 L. R. A. 840, 50 Am. St. Rep. 313. The first instruction given by the court contained a statement of the material averments of the complaint, but did not give the jury any direction as to what their verdict should be. The sixth instruction was to the effect that, if the jury should find from the evidence that the facts averred in the complaint (specifying them) were proven, the verdict should be for the plaintiff. It also stated the opposing hypothesis, with the direction that upon such facts the verdict should be for the defendant. These instructions, taken together, fully and fairly stated the issue. Craig v. Frazier, 127 Ind. 286, 26 N. E. 842. The fourth instruction stated that "false imprisonment consists in imposing an unlawful restraint upon one's freedom of locomotion or action." The definition is conceded to have been correct. 12 Am. & Eng. Enc. Law, 721, and notes. It further defined "im prisonment" as "the deprivation of the liberty of another without his consent." The definition was correct (2 Kent, Comm. p. 26), and was applicable to the evidence. The tenth instruction authorized the assessment of damages on account of expense incurred in procuring medicines and medical treatment. Appellee was a married woman, and the instruction was therefore erroneous. Railway Co. v. Crosby, 107 Ind. 32, 7 N. E. 373. The evidence shows a total expenditure of $7 for such items. The verdict was for $2,000. The appellee filed a remittitur of $800, expressly including therein that portion of the damages assessed on account of medicines and medical treatment. The remittitur rendered the error in the instruction harmless. Nickey v. Zonker, 22 Ind. App. 211, 216, 53 N. E. 478; Tucker v. Hyatt, 151 Ind. 332, 51 N. E. 469, 44 L. R. A. 129. The evidence tends to support the verdict. It shows that appellants conducted a department store in Indianapolis; that appellee desired to buy a pair of shoes for her daughter, who was in their employment at the "jewelry counter"; that she took two shoes, not mates, from the shoe clerk, and, with his permission, started across to show them to her daughter; that West, appellant's watchman, saw the shoe clerk hand her one shoe, and saw her immediately start across the store with it in her hand. As shown by his own testimony, without any investigation he "touched her on the shoulder." She says, "He took hold of my arm." He says that he said, "Lady, you have a pair of shoes under your cape." She says that he said, "You are stealing shoes." Smith, the floor walker, then came up. Both West and he took hold of her arms, took her into an alcove, and said, "What else have you got there?" "He took hold of my cape and said, 'Have you got any pockets?' and I was all the time trying to explain that I had permission." She further testifies that she said "that, if you will please send for the grayhaired gentlemen over there, he will tell you he gave me permission to take the shoes," and that Smith answered, "I have heard people talk that way before." West, the watchman, made no inquiry at the shoe counter at any time, and manifested an entire indifference as to whether appellee was rightfully or wrongfully accused. The clerk at the shoe counter seems to have interposed upon his own motion. He said: "What are you doing, Smith? I gave the woman permission to take those shoes." Smith replied: "You have no right to do that without my permission." He then said to the appellee: "This will teach you a lesson. You should be more careful." No apology was made and no regret expressed to her by any person. There does not seem to have been anything in the appearance of the appellee to invite suspicion or discourtesy. The learned counsel for the appellant attribute to her opposite qualities. The damages assessed are not, in view of the evidence, so great as to induce the belief that the jury acted from prejudice, partiality, or corruption, and do not, therefore, furnish ground for reversal. Judgment affirmed. (29 Ind. App. 127) MOUNT v. DEHAVEN. 1 (Appellate Court of Indiana, Division No. 1. March 20, 1902.) NOTES-RENEWAL-NOVATION-ESTATE OF DECEDENT-SETTLING WITHOUT ADMINISTRATION. 1. The heirs of a decedent undertook to settle his estate without administration, and gave a creditor of the estate their notes, taking up the notes of their ancestor held by the creditor. On an issue whether the acceptance of the notes of the heirs extinguished the originals, one of the heirs testified that not much was said when the transaction took place, the creditor remarking that any way to fix the renewal notes would suit him. Across the face of the original note was written, "Paid by renewal," but the creditor testified that he saw no such indorsement made. Held, that no novation of the original note was shown. 2. The heirs not having been the legal representatives of the estate, they could not bind it by any agreement relative to the notes. Appeal from circuit court, Fayette county; F. S. Swift, Judge. Action by James I. Dehaven against James C. Mount, as administrator of the estate of Theodore L. Griffis, deceased. From a judgment for plaintiff, defendant appeals. firmed. Af Florea & Broaddus and Conner & Conner, for appellant. Gray & Nevin and McKee, Little & Frost, for appellee. ROBINSON, P. J. Judgment in appellee's favor on a claim of two notes,-one for $1,600, with 6 per cent. interest, dated December 19, 1888, and due in one year; the other for $1,000, with like interest, dated January 30, 1890, and due in one year; both executed by appellant's decedent, Theodore L. Griffis, and payable to appellee. Theodore L. Griffis died May 6, 1890, leaving two sons and a widow, who was a childless second wife. At the time of his death he was engaged in the retail dry goods business, and was largely indebted. Soon after his death the two sons purchased the widow's interest in the whole estate, and took charge of the entire estate, conducting the store under the firm name of T. L. Griffis' Sons, and undertook to settle the estate without administration. On December 19, 1890, the two sons executed to appellee a note for $1,696, due in one year, with 7 per cent. interest, signed by T. L. Griffis' Sons, and by each son individually, in lieu of the note for $1,600 executed by T. L. Griffis, the old note being delivered to the sons. On September 8, 1892, they executed to appellee a note for $1,052, due in six months, with 6 per cent interest, signed by the same parties, in lieu of the note for $1,000, which was delivRehearing denied. ered to the sons. These notes were not paid when due, but were taken up by other renewal notes. Certain payments were made, but at the time of the trial there were two of these outstanding renewal notes,-one for $930, dated July 2, 1895, and one for $1,058.83, dated January 27, 1896. An administrator of the estate of Theodore L. Griffis was appointed in April, 1898. None of the renewal notes given by the sons were notes governed by the law merchant. The only question in the case is whether the acceptance by appellee of the renewal notes executed in lieu of the original notes extinguished the antecedent debt. One of the sons testified that at the time the first renewal notes were executed and the original notes surrendered, "There wasn't very much said; we talked about the notes, and I asked him how he wanted the notes fixed, and he said, 'Any way, it don't make any difference;' and I said, 'We had better agree on the time, and renew the notes,' and he said, 'All right, any way to suit you will be all right.' I renewed the notes, and there was never anything said about it afterwards." At the time of the surrender of the original notes, witness thought appellee knew the sons were attempting to settle the estate without administration. The original notes were introduced în evidence. Across the face of the original note for $1,000 are the words, "Paid by renewal. T. L. Griffis' Sons, Sep. 8, '92;" and across the face of the note for $1,600 are the words, "Paid January 24, '91, by renewal. T. L. Griffis' Sons;" and the maker's name on each note is crossed out. Appellee testified that he did not see any of these indorsements made. In Tyner v. Stoops, 11 Ind. 22, 71 Am. Dec. 341, the court said: "The taking of a promissory note from one of several joint debtors, or the note of a third person, for a pre-existing debt, is not a discharge of the debt, unless such is the express agreement. Schermerhorn v. Loines, 7 Johns. 311; Muldon v. Whitlock, 1 Cow. 290, 13 Am. Dec. 533. In the case last cited it is said by Sutherland, J., that 'no principle of law is better settled than that taking a note, either from one of several joint debtors or from a third person, for a pre-existing debt, is no payment, unless it be expressly agreed to be taken as payment, and at the risk of the creditor. Nor does the taking a note, and giving a receipt for so much cash in full of the original debt, amount to evidence of such express agreement to take the note in payment. The agreement must be clearly and explicitly proved by the original debtor, or he will be held liable.'" See Bingham v. Kimball, 17 Ind. 396; Stevens v. Anderson, 30 Ind. 391; Maxwell v. Day, 45 Ind. 509; Alford v. Baker, 53 Ind. 279; Hill v. Sleeper, 58 Ind. 221; Manufacturing Co. v. Probasco, 64 Ind. 406; Lindeman v. Rosenfield, 67 Ind. 246, 33 Am. Rep. 79; Albright v. Griffin, 78 Ind. 182; Combs v. Bays, 19 Ind. App. 263, 49 N. E. 358. The facts do not show a novation of the original |