marry me, and he said he did." She was 20 years old and a washerwoman. Various witnesses testified to having seen the parties at Mitchell on the day named, and a witness testified that about two months later appellee told him that the relatrix went to Mitchell with another man, naming him, but that he, appellee, took her away from him, and went out and had intercourse with her twice. The child was born March 16, 1906. The relatrix and her mother testified that on Monday preceding the birth the relatrix fell down some steps, began to complain, and continued to do so until the child was born. To oppose this evidence the defendant introduced four witnesses who testified to the "general reputation of the relatrix in the neighborhood where she lives for morality." Three of them said it was bad and one said it was good.

The defendant testified himself, and did not deny that he was the father of the child, nor did he controvert any other part of the testimony of the relatrix, but contented himself with stating that William Stalcup told him in July, 1905, that he (Stalcup) had connection frequently with the relatrix, and "I [appellee] told him I had sexual intercourse with the relatrix on July 4, 1905." Stalcup denied making such statement in any form. Norman Bird testified, over objection, that he saw the relatrix alone with a person named at the lower sulphur spring in Paoli in February, 1905. Unlawful sexual intercourse is not presumed from mere opportunity (Walker v. State, 165 Ind. 94, 74 N. E. 614), while intercourse with others than the defendant must be limited to about the time when the pregnancy began (State ex rel. v. Phillips, 5 Ind. App. 122, 31 N. E. 476). The court therefore erred in overruling the objection to this testimony.

There is no evidence in the record supportive of the finding. A defendant who admits intercourse at the time the relatrix testifies the child was begotten, who does not deny continued commerce with her, both before and after that time, accomplished by a promise of marriage repeated after the fact of pregnancy is know to him, cannot escape liability for the support of the child by proof that the reputation of the relatrix for morality in the neighborhood where she lives is not good.

The judgment is reversed, and the cause is remanded, with instructions to sustain appellant's motion for a new trial, and for further proceedings.

(41 Ind. A. 372)

LANDGRAF v. GRIFFITH. (No. 6,343.) (Appellate Court of Indiana, Division No. 2. March 10, 1908.)

1. BANKRUPTCY-DEBTS AND LIABILITIES DISCHARGED JUDGMENTS IN ACTIONS FOR FRAUD.

A judgment on a complaint alleging that plaintiff was the owner of a note made by defendant; that defendant represented to plain

tiff that he was going to apply immediately for a discharge in bankruptcy, and that, if plaintiff would surrender the note, he would immediately apply for a discharge and pay the note in full; that plaintiff, believing such statements, returned the note; that the statements were false, and were made to secure possession of the note, thus destroying all evidence of the debt and to defraud plaintiff-is not a judgment for fraud within Bankruptcy Act, § 17 (Act July 1, 1898, c. 541, 30 Stat. 550 [U. S. Comp. St. 1901, p. 3428]), declaring that judgments for fraud shall not be affected by a discharge in bankruptcy, since fraud within that section must relate to obtaining the money or property by false representations where the original relation between the parties is a contractual one.

COMSTOCK, J. Appellant recovered judg ment by default before a justice of the peace of Marion county against appellee for $162.50. He commenced the present action upon said judgment on the 14th day of August, 1905.

The complaint alleges, in substance, that on the 18th day of April, 1900, appellant filed in the office of the justice of the peace his complaint for damages in the sum of $162.50; that a trial of said cause was duly had and judgment rendered against the appellee in favor of appellant for said amount, together with costs; that said judgment was due and unpaid; and that a copy of said complaint is filed with appellant's complaint, as "Exhibit A," and made a part thereof. In the complaint before the justice of the peace it was alleged that the plaintiff was on the 15th day of October, 1899, the owner of a certain promissory note, dated April 13, 1895, and signed by the above-named defendant; that said note was given for a valuable consideration; that the defendant represented to the plaintiff that he was going to apply immediately for a discharge in bankruptcy according to the laws of the United States, and that he did not want said plaintiff to lose the amount of money due on said note; and that, if plaintiff would surrender said note to him, he would immediately apply for a discharge in bankruptcy, and that he would pay plaintiff's claim in full; that plaintiff, believing such statements were true, and relying on such statements made by said de fendant, returned said note to said defendant; that said statements were false and made for the purpose of deceiving said plaintiff; that said defendant did not intend to apply for a discharge in bankruptcy, and never had had any intention of so doing, and that he has never applied for a discharge in

bankruptcy, etc. Said statements were made for the purpose of securing possession of said note, thus destroying all evidence of said in. debtedness and to defraud said plaintiff, etc. Appellee answered in three paragraphs; the first being a general denial, and which was subsequently withdrawn. Said second and third paragraphs of answer alleged that on the 30th day of April, 1900, appellee filed his voluntary petition in bankruptcy in the proper District Court of the United States, and that with this petition he filed Schedules A and B, as required by law, and set forth therein the names of all of his creditors, and the nature and amount of the debts due said creditors, and a list of all property owned by defendant on said date; that among other debts listed in said Schedule A was the debt due Norbert Landgraf, the plaintiff herein; that he was duly adjudged bankrupt on April 30, 1900; that plaintiff herein was duly notified of the filing by defendant of such petition in voluntary bankruptcy, and that thereafter, on the 26th day of May, 1900, the said plaintiff herein filed in said District Court his proof and claim against the estate of the defendant; that on the 9th day of September, 1900, a judgment upon the merits was entered in said cause by said District Court, whereby said claim was allowed as a general claim against the estate of said bankrupt; that said claim so filed and allowed was the identical claim and judgment mentioned in the plaintiff's complaint herein, and upon which plaintiff now seeks to maintain an action against the defendant herein, and that the said District Court is and was a court of competent jurisdiction, having jurisdiction of the subject-matter in said cause and the parties thereto; that thereafter, to wit, on the 8th day of January, 1901, the defendant was discharged by said District Court from all debts provable against his estate under the acts of Congress relating to bankruptcy, including the debt theretofore due the plaintiff herein. A demurrer for want of facts to each of said paragraphs was overruled, and the plaintiff replied thereto, in substance, that section 17 of the bankruptcy law (Act July 1, 1898, c. 541, 30 Stat. 550 [U. S. Comp. St. 1901, p. 3428]), enumerates certain indebtedness, which shall not be affected by a discharge of bankruptcy, as follows, to wit:

*

* * Second. Judgments in actions for frauds, or obtaining property by false pretense and false representations, or from willful and malicious injury to the person and property of another. Fourth. Debts created by the fraud, embezzlement, misappropriation or defalcation by one acting as an officer, or in any other fiduciary capacity, by the bankrupt"-that the judgment upon which he is asking judgment in the circuit court is a judgment for fraud in obtaining possession of said promissory note by false and fraudulent representations. Said reply then recites the facts set out in the complaint filed before the justice of the peace in

relation to the note in controversy, and that the judgment rendered in the court of said justice of the peace is the same identical judgment which the defendant claims was liquidated by the judgment in bankruptcy, as charged in his said second and third paragraphs of answer. A demurrer to this reply, upon the ground that it did not state facts sufficient to avoid said paragraphs of answer, was sustained, and, the plaintiff declining to plead further, the court rendered judgment on said demurrer in favor of the defendant for costs.

The errors assigned are the action of the court in overruling appellant's demurrer to the second and third paragraphs of answer and each of them, and in sustaining appellee's demurrer to appellant's reply. Appellant contends that neither the second nor third paragraph of answer is sufficient, for the reason that his judgment is for fraud, and is not released by the discharge in bankruptcy. Public policy forbids the discharge of the bankrupt from a debt incurred through fraud while acting as an officer or in a fiduciary capacity, and a debt so created, whether reduced to a judgment or not, is not to be discharged in bankruptcy. We are of the opinion that the facts set out in the complaint are not such as are contemplated by the statute. The fraud should relate to the obtaining, at the creation of the debt, the money or property by false or fraudulent representations; the original relation between the parties being a contractual one. "It must exist in the creation of the debt, as subsequent fraudulent conduct is insufficient." Brandenburg, Bankr., § 435. "If the original debt arose in the contract and the fraud was but an incident of the debt and not its creative power, the debt is merged in the judg ment and the bankrupt released thereafter." Brandenburg, supra. See, also, Collier on Bankruptcy, p. 478.

The facts exhibited in the complaint show that the note in question was executed for a valuable consideration, and possession of the same was obtained by the appellee. This was only depriving appellant of the evidence of the debt. Appellant's rights were not affected. Appellee was still his debtor. The form of the debt was not changed. It is not alleged that appellant ever demanded the return of the note. It was surrendered to appellee upon promise to pay the debt in full, manifestly holding out to the appellant the expectation of a preference over other creditors. He parted with the note upon conditions which would have been, under the bankrupt law, a fraud to other creditors. The act charged against appellee was a tort for which appellant sought damages, and for which judgment was rendered before the commencement of the proceedings in bankruptcy. It was proved and allowed as a general claim against the estate of the bankrupt. A judgment in an action for tort may be provable, or for fraud, conspiracy, and deceit

plaintiff. This vacant piece of ground was a part of the tract purchased and conveyed to the plaintiff. At the time the defendant bought his property there was a window in the building purchased by him opening out on this vacant ground, and deriving light therefrom. The plaintiff, desiring to improve his property, claimed the right to build upon this vacant ground and thereby close up the de'fendant's window. The defendant denied his right so to do, and claimed an easement in the light from the window. The action was brought by the plaintiff to quiet his title as against this claim, and it was held by the court, after a careful review of all the authorities bearing upon the subject, that the deed from the common grantor carried no implied easement in the defendant's favor to light and air from the vacant space described, and that the plaintiff, although holding the junior title, and standing, so far as the controversy between the parties was concerned, in the shoes of the grantor in the deed, had the right to build a wall in front of the defendant's window. It is conceded by the appellant that this case correctly states the law; but it is sought to distinguish this case from the case at bar, in the fact that here the window obstructed lights a hall that belongs, not to the appellant alone, but to him in common with the appellee. We think that this is a distinction without a difference. If the hall that is lighted by the window belonged entirely to the appellant-was entirely upon his premises-then he unquestionably would have no easement in the light from the window. It is the obstruction to this light which is sought to be enjoined. We think the case of Keiper v. Klein, supra, conclusive on these questions against the appellant's contention.

A complaint in an action against a railroad company to recover damages for the burning of plaintiffs' property alleged that they were the owners of certain property of the value of $4,000, and that it was totally destroyed by fire by reason of defendant's negligence, and demanded judgment for its value. Held, that the complaint sufficiently alleged plaintiffs' damages, and was sufficient against demurrer, under Burns' Ann. St. 1901, § 341. cl. 2, requiring a complaint to contain a statement of the facts in plain and concise language.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 15, Damages, § 407.]

2. RAILROADS FIRES - EVIDENCE OF NEGLI

GENCE.

Evidence in an action against a railroad company to recover damages for the burning of property considered and held sufficient to sustain a finding that the fire originated from

one of defendant's locomotives, and was caused by its negligence.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 41, Railroads, §§ 1730-1736.]

3. SAME-DEFECTS IN ENGINES.

A railroad company is not responsible for damages for a fire communicated by a locomotive, unless it was due to the negligent use of a defective and insufficient spark arrester.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 41, Railroads, §§ 1668–1671.]

4. EVIDENCE-SUFFICIENCY-CIRCUMSTANTIAL

EVIDENCE.

Circumstantial evidence of negligence is sufficient to support a verdict in an action against a railroad company for damages for a fire communicated by a locomotive, if from all the circumstances proved the jury might reasonably find that defendant's negligence was the proximate cause of the injury.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 20, Evidence, § 2436.]

5. RAILROADS-FIRES-INSTRUCTIONS-Degree OF CARE.

In an action against a railroad company to recover damages from a fire communicated by its locomotive, an instruction that defendant was required to use a high degree of care and skill to prevent the escape of fire from its engines is not objectionable, as the jury must have understood that the "high degree of care" had reference to the degree of care and skill required in equipping defendant's locomotives and in keeping them in repair.

6. SAME-CARE REQUIRED-APPLIANCES.

The duty of a railroad company in the matter of communicating fire from its locomotives is to exercise ordinary care corresponding to the risk, in view of the danger to property, and requires prudence and vigilance in selecting and keeping in repair appliances for the prevention of fire which are practical and generally recognized as the most approved.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 41, Railroads, §§ 1657-1660.]

Appeal from Superior Court, Grant County; B. F. Harness, Judge.

Action by James H. Sullivan and others against the Toledo, St. Louis & Western Railroad Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

Guenther & Clark, for appellant. T. B. Dicken, W. D. Lett, and W. E. Haisley, for appellees

MYERS, J. On November 9, 1903, appellees, as partners, were the owners of a sawmill, buildings, lumber, etc., situate in the town of Van Buren, this state, and contiguous to the right of way used by appellant in operating its trains of cars and locomotive engines through said town, and the county of Grant. That on said day appellant in the use of one of its locomotives negligently permitted large coals of fire to be emitted therefrom and thrown upon said property by reason of the insufficient, defective, unsafe, and dangerous condition of the spark arrester with which said locomotive was equipped, and whereby said property was set on fire and destroyed, and to recover damages for such alleged negligence appellees instituted this action against appellant. The amended first paragraph of complaint, answered by a general denial, formed the issues submitted

to a jury, resulting in a verdict for appellees. Over appellant's motion for a new trial judgment on the verdict was rendered for $1,854.16. The overruling of appellant's demurrer to the first amended paragraph of the complaint for want of facts and its motion for a new trial are the only errors relied on for a reversal of the judgment.

1. The objection urged against the complaint is that it does not allege that appellees sustained any damage. On this point, from the allegations of fact it appears that appellees, as partners, were the owners of certain property; that it was of the value of $4,000; that it was totally destroyed by fire by reason of the negligence of the appellant, and for the value of the property thus destroyed judgment was demanded. It is true, as appellant insists, that the complaint, to be good as against a demurrer for want of facts, must show that complainants sustained damages resulting proximately from the negligent acts or omissions charged against the defendant. While the complaint does not, with that clearness demanded by good pleading, allege that appellees sustained damages in the sum of $4,000, yet from the facts appearing no other conclusion could reasonably be drawn, and this being true, in our opinion the allegations of fact, as found in the complaint, fully apprised appellant of the cause of action, and the complaint was sufficient as against the demurrer. Section 341, cl. 2, Burns' Ann. St. 1901; Chicago, etc., Ry. Co. v. McDaniel, 134 Ind. 166, 171, 32 N. E. 728, 33 N. E. 769; Morris v. Ellis, 16 Ind. App. 679, 46 N. E. 41.

2. The first reason argued in support of the motion for a new trial is that the verdict is not sustained by sufficient evidence, in that the evidence does not show that the fire originated from one of appellant's engines, nor that it was caused by any negligence of appellant. The record in this case discloses evidence tending to prove that appellees' property on the day it was destroyed by fire was located about 100 feet north of appellant's main railroad track. About 3 o'clock in the afternoon of said day one of appellant's locomotives, pulling a heavy freight train, and running very slow-about four miles an hour -passed appellees' mill. The train was headed west, and the engine, while passing said mill, threw sparks and coals of fire, some larger than grains of corn, around, upon, and beyond the mill building. Some of the witnesses testified that "the engine was working hard" and "throwing cinders pretty thick," which fell numerously around a party 110 feet north of appellant's tracks. A witness, at the time working about 94 feet from the track, and near the mill, testified when the engine passed he noticed the cinders "coming heavy." Another testified that he was just east of the mill, and that cinders as large as grains of corn, "some were black, and some were red," fell around him. Some struck and burned his hands. At that time

83 N.E.-65

there was no fire about the mill. The weather was very dry, and a strong wind was blowing from the south or southwest. About 20 or 30 minutes after the train passed the mill was discovered to be on fire. The fire started in the southwest corner at a point about 35 or 40 feet from the mill furnace or boiler room. The mill building was sided with cotton wood boards, and had a new shingle roof. There was an opening in the building at the place where the fire started. A witness who had been a locomotive engineer for 24 years, after describing to the jury spark arresting appliances in use, testified in his opinion, that if the spark arrester had been in good condition, no holes in it, sparks of fire and cinders would not have been thrown a distance of 100 feet. To the question, "If a locomotive engine was throwing an excessive amount of cinders, some of them as large as grains of corn, to a distance of 110 feet, what, in your opinion, would be the cause of that engine throwing them?" he answered: "I would think there must be something defective in the apparatus. Either the netting would be defective, or the deflecting plate would be loose, or something of that kind."

In this class of cases seldom do we find evidence so clearly establishing the fact that the property was destroyed by fire communicated by the locomotive; but with this fact against appellant, under the ruling of the court in New York, etc., R. Co. v. Baltz, 141 Ind. 662, 36 N. E. 414, 38 N. E. 402, appellees must further show that the fire was started by reason of appellant's fault in negligently using a defective and insufficient spark arrester. Toledo, etc., R. Co. v. Fenstermaker, 163 Ind. 534, 538, 72 N. E. 561. Appellant in its behalf offered no evidence on this subject. The evidence supporting the allegation of negligence was circumstantial, and must be held sufficient to support the verdict, if from all the circumstances proved the jury might reasonably find that appellant's negligence, as charged, was the proximate cause of the injury to the property. Pittsburg, etc., R. Co. v. Indiana Horseshoe Co., 154 Ind. 322, 333, 56 N. E. 766; Pittsburg, etc., R. Co. v. Wilson, 161 Ind. 701, 66 N. E. 899; Louisville, etc., R. Co. v. Balch, 122 Ind. 583, 23 N. E. 1142; Toledo, etc., R. Co. v. Fenstermaker, supra; McCullen v. Chicago, etc., Ry. Co., 101 Fed. 66, 71, 41 C. C. A. 365, 49 L. R. A. 642; McMillan v. Wilmington, etc., R. Co., 126 N. C. 725, 36 S. E. 129. In this case the jury had the right to, and no doubt did take into consideration, the evidence bearing upon the size and quantity of the coals of fire emitted by the locomotive, the distance they were thrown or carried, the distance from the locomotive and time they remained alive, whether the spark arresting apparatus, if in good condition, would prevent their escape in such quantity and size, and the fact that they actually set fire to appellees' property 100 feet away from such lo