26 Kan.426; Scattergood v. Wood, 79 N. Y. 263; Hopkins v. Indianapolis, etc., R. Co., 78 Ill. 32; Seliger v. Bastian, 66 Wis. 521, 29 N. W. Rep. 244. It is argued by appellee's counsel that, if there was error in admitting the testimony, it was a harmless one. This contention cannot prevail. The testimony was directed to very material points; was of importance; so that we cannot say that it did not influence the jury. Where evidence is material, and bears upon im. portant points in favor of the party who introduces it, the presumption is that it was influential, and that, if incompetent, harm was done in submitting it to the jury. See authorities cited in Elliott, App. Proc. § 594, note 2; Id. § 632, note 3; 1d. § 670. The opinion of a witness whose conduct and demeanor impress the jury favorably, going to them under the sanction of the court, may carry as much weight as the statement of a fact, and for this reason it is seldom that incompetent opinion evidence can be said to be harmless. It is true that the court, in admitting evidence, gives no opinion as to weight or value. Pedigo v. Grimes, 113 Ind. 148-158, 13 N. E. Rep. 700, and cases cited. But, while this is true, it is also true that, where the court admits evidence over objection, it impliedly declares to the jury that it is to be considered by them; and, where the evidence is incompetent, such a declaration does wrong, inasmuch as it lays before the jury evidence they have no right to hear. is safe to assume that resort to opinion | Northfield, 33 Vt. 124; Parsons v. Lindsay, evidence from nonexpert witnesses is only proper upon the ground that necessity requires the introduction of that class of evidence. Here there was no necessity for such evidence, inasmuch as the facts as to the unobstructed space, and the like, could have been easily stated to the jury, and an opinion could have been readily formed by the jury upon the facts laid before them. We fully sanction the doctrine that, where facts cannot be presented to a jury, a nonexpert witness may express an opinion. Bennett v. Meehan, 83 Ind. 566; Loshbaugh v. Birdsell, 90 Ind. 466; Turnpike Co. v. Andrews, 102 Ind. 138-143, 1 N. E. Rep. 364; Civil Tp. v. Brookshire, 114 Ind. 437-445, 16 N. E. Rep. 132. Necessity creates the exception to the general rule. Stephenson v. State, 110 Ind. 358-365, 11 N. E. Rep. 360; Indiana, etc., R. Co. v. Hale, 93 Ind. 79-82. Where, however, the reason for an exception fails, the general rule stands unbroken. That is the case here, as is evident from what has been said, because there is no necessity for resorting to opinion evidence. But even in cases where necessity justifies the expression of an opinion, the opinion cannot go to the principal points which the law requires the jury to decide. Loshbaugh v. Birdsell, 90 Ind. 466; Yost v. Conroy, 92 Ind. 464; Thompson v. Deprez, 96 Ind. 67; Hughes v. Beggs, 114 Ind. 427, 16 N. E. Rep. 817. In this case the witness in answering the question asked necessarily gave judgment in the form of an opinion upon a principal point, and thus the rule was violated. is ingeniously argued by counsel that if parts of the answer be eliminated there was no transgression of the rule, but the fallacy of the argument is revealed by the most cursory analysis. There can be no elimination of the part of the answer, since the answer is responsive to the question, and in the question dwells the infirmity that makes error. This we say for the reason that the question explicitly required the witness to answer whether there was "room for a man to walk with safety, and whether a man could or could not walk with safety could only be a matter of opinion. A man might safely walk by feeling his way along the wall, and this the witness may have been of the opinion it was the man's duty to do; but this he could not know as a fact, nor had he, a right to directly or indirectly give an opinion as to the degree of care that a person using the walk must exercise. The question required the witness to express an opinion upon matters respecting which he showed no special knowledge or skill, and this of itself was enough to condemn it. Wilson v. Bennett, (Ind. Sup.) 31 N. E. Rep. 184. We refer, without further discussion, to the cases which follow in support of our conclusion that the testimony of the appellee was incompetent, and it would be, we may add, no difficult task to multi. ply citations. Dallas v. Sellers, 17 Ind. 479; Thompson v. Deprez, 96 Ind. 67; Oleson v. Tolford, 37 Wis. 327; Crane v. It The court, in ruling upon a question propounded to a witness, made this remark: "If this man, [meaning the appellant,] or anybody who received a rupture of the lung, and then subsequently received one that made it worse,-I don't see how the first could make it worse than the second, and the two together more than the one alone." This singular and confused statement of the court contains an erroneous expression of the law. If a man is suffering from an injury previously received, and that injury is aggravated by an accident caused by the negligence of a wrongdoer, the aggravation of the injury is sufficient to entitle the injured man to a recovery if other facts constituting a cause of action are established. Terre Haute, etc., R. Co. v. Buck, 96 Ind. 346, and authorities cited; Railroad Co. v. Hecht, 115 Ind. 443, 17 N. E. Rep. 297, and cases cited; Railway Co. v. Snyder, 117 Ind. 435, 20 N. E. Rep. 284. The remark of the court was improper for the further reason that it expresses a decision upon a question of fact. In giving an expression upon such a question the court wrongfully invaded the province of the jury. Remarks made by a judge in the presence of the jury during the progress of a trial may, if material and improper, constitute prejudicial error. See authorities cited in Elliott, App. Proc. p. 618, note 1. Other questions are discussed, but, as a new trial must be granted, it is unnecessary to consider them. Judgment reversed. (133 Ind. 39) BOARD OF COM'RS OF ALLEN COUNTY v. CREVISTON. (Supreme Court of Indiana. Nov. 29, 1892.) DEFECTIVE BRIDGES-PLEADING-LIABILITY OF COUNTY-CONTRIBUTORY NEGLIGENCE. 1. The averment in plaintiff's complaint that decedent's death while crossing a bridge of defective construction was caused by the negligence of defendant county commissioners, and the general averment that decedent himself was without contributory fault or negligence, is sufficient to show actionable negligence. 2. An allegation in the complaint that decedent was attempting to cross a bridge with an engine, boiler, and wagon, does not show such gross negligence per se as to overcome an allegation that he was without fault. Action by Joseph J. Creviston, as ad carelessly constructed said bridge in part of defective and windshaken timber in material parts thereof, and suffered the same to remain there more than five years, and negligently suffered the same to thus remain in said bridge until it became rotten, brittle, weakened, and insufficient to support the ordinary loads passing thereon with safety. That said bridge was 29 feet in length, 18 feet in width, and 8 feet in height from the bed of the stream; and said board failed and neglected to repair thesame, and put it in safe condition for the public travel, and failed to remove the same, and failed and neglected to warn the public of its unsafe and dangerous condition, and suffered it to so remain dangerous for more than one year before the 2d day of October, 1889, at which time said Horace M. Wright, who was then and there in the employ of Henry M. Sparks, on his engine and wagon, and when on said bridge, without fault or negligence on the part of said Wright, said bridge, by reason of said negligence of the board of commissioners in the construction thereof, and in their failure to keep the same in repair, being rotton in material parts thereof, the same broke and fell down into the bottom of said stream, and threw and precipitated said Wright down between said engine and boiler and wagon attached thereto, fastening, pinning, and holding him fast between said engine and boiler and said wagon in such a way that the hot, boiling steam ejected therefrom scalded, boiled, and burned his body from his breast to his ankles, and his arms and : 3. The complaint is not bad because it alleges that decedent was in the employ of one S., and does not allege that he was in the exercise of due care. 4. Elliott, Supp. § 1948, provides that any person feeling aggrieved at any decision of the board of county commissioners may appeal to the circuit or superior court, or, at his option, bring an action against the county. Held, that this provision applies to actions in tort as well as in contract. 5. A county is liable for injuries caused by the falling of a bridge built by the commissioners of defective material, which had not been inspected for eight years, and where defects were of a character easily discernible. 6. A traveler, with a load which is not unusually heavy, on crossing a bridge has a right to rely on its apparent condition of soundness and safety. Appeal from circuit court, Adams county; D. D. HELLER, Judge. ministrator, against the board of commis- | hands, until the nails of his fingers came sioners, county of Allen, to recover damages for the death of plaintiff's decedent, caused by the alleged negligence of defendant. Judgment for plaintiff. Defendant appeals. Affirmed. Bell & Morris, for appellant. Branyan & Spencer and Cobb & Watkins, for appellee. MCBRIDE, J. Horace M. Wright was killed by the breaking down of a bridge in Allen county. This suit was brought by his administrator to recover damages of the appellee for his death, on the ground that it wascaused by actionable negligence both in the erection and in the maintenance of the bridge. The errors assigned and discussed relate-First, to the suffi off, and the skin and flesh dropped off and rolled off from nearhis neck to his feet, the entire length of his body, causing him great pain and anguish of body and mind of the most excruciating kind, and of long enduring, and ending in his death, leaving his wife and six children," etc. "All of which was occasioned by the negligence of said board of commissioners, as aforesaid, and without fault or negligence of said Horace M. Wright, "etc. It is also averred that before the commencement of this suit the plaintiff had filed a claim for allowance before the board of county commissioners upon the same cause of action, but that the board had disallowed and dismissed the same. The second paragraph is sub ciency of each paragraph of thecomplaint; | stantially a repetition of the first, except second, to the action of the trial court in sustaining a demurrer to the second paragraph of answe answer; and, third, to the action of the trial court in refusing to render judgment in favor of the appellant on the special verdict of the jury, and in rendering judgment in favor of appellee thereon. The first paragraph of complaint, after certain prefatory averments, alleges" that said board of commissioners, having competent authority so to do, did erect on said highway a bridge upon and over Pleasant run, a stream then situate and crossing said highway at a point one and three fourths miles of the south line of said township, so as to connect the banks of said stream on the line of said highway, for the public to pass over and along said highway as travelers thereon. That said board of commissioners negligently and that it is averred that the highway of which the bridgein question formed a part had become a public highway by use for more than 20 years, while in the first paragraph it is alleged that it had been established by order of the board of county commissioners. While this complaint may well be subjected to severe criticism upon some grounds, we are of the opinion that it states a good cause of action. No question is better or more firmly settled in this state than that counties are liable for negligence in the construction and maintenance of bridges. Board, etc., v. Chipps, (Ind. Sup.) 29 N. E. Rep. 1066; Apple v. Board, etc., 127 Ind. 553, 27 N. E. Rep. 166; and cases cited in both. Boards of county commissioners erecting bridges, or charged with the maintenance of bridges already erected, are required to exercise at least ordinary care in so doing. The negligent use of defective material in the construction of a bridge, or negligently allowing the timbers composing a bridge to become so rotten, brittle, and weakened that they will not, for that reason, support the ordinary loads passing thereon with safety, is actionable, and is sufficient to render the county liable to one who is injured by reason thereof, who is himself without fault. The complaint clearly shows actionable negligence. It is expressly averred that the decedent's death was caused by such negligence, and that he was himself without fault or negligence. It is equally well settled as a rule of pleading in such cases that the general averment by the plaintiff of freedom from contributory fault or negligence is sufficient, unless it is overcome by other and specific averments of facts in the complaint, showing, notwithstanding, that he was guilty of negligence. Railroad Co. v. Walker, 113 Ind. 196, 15 N. E. Rep. 234; City of Wabash v. Carver, 129 Ind. 552, 29 N. E. Rep. 25. A party is not required by specific averment to show in what particular he was vigilant and careful, and wherein he refrained from doing negligent acts. As said by ELLIOTT, J., in Railroad Co. v. Walker, supra: "If the specific act absolving the plaintiff from fault must be pleaded, then it would be necessary to enumerate every fact that might be considered as tending to charge him with fault, and negative its existence. In some cases this process of enumeration and exclusion would be practically impossible; in others it would lead to a prolixity of pleading that would do no good, but would produce uncertainty and confusion." This disposes of many of the objections urged to the complaint. It is contended by the appellant that the specific averments of the complaint show affirmatively that the decedent was not attempting to transport the usual and ordinary load over the bridge in question, but was subjecting it to an unusual use and weight, because it appears that he was taking an engine, boiler, and wagon over it when it fell. This would require at our hands an unwarranted extension of the range of judicial notice. Courts could with equal certainty and assurance take judicial notice of the weight of any other vehicle or load. To sustain the appellant's contention would require us to hold that, to attempt to cross a bridge with an engine, boiler, and wagon was per se negligence so gross as to overcome the general averment that the party was free from negligence or fault. This we cannot do. City of Wabash v. Carver, supra. pellant also contends that the complaint is bad because it shows that the decedent was in the employ of Henry M. Sparks, and does not show that Sparks was free from fault. This was not necessary. The ap The second paragraph of the appellant's answer was a plea of former adjudication. It alleged, in substance, the filing of the claim before the board of commissioners of Allen county; that it was duly submitted to them for trial, evidence heard, etc., and a judgment rendered, disallowing the claim, and awarding costs against the appellee and in favor of the appellant; that the judgment is in full force, unreversed, and unappealed from; and that the claim thus adjudicated was on the identical cause of action, and between the same parties, as that presented by the complaint herein. An act of the legislature approved March 9, 1885, (section 1948, Elliott, Supp.,) provides that "any person or corporation feeling aggrieved with any decision of the board of county commissioners, made as herein before provided, may appeal to the circuit or superior court of such county, as provided by law. No appeal shall be allowed from the decision of said board making allowances for services voluntarily rendered, or things voluntarily furnished for the public use. From all other decisions for allowances an appeal may be taken within thir ty days to the circuit or superior court of the county, the party giving sufficient bond, payable to said board. If a claim be disallowed in whole or in part, except when the claim is for services voluntarily rendered or things voluntarily furnished, the claimant may appeal, or, at his option, bring an action against the county; but, if he shall not recover more on such appeal than is allowed, he shall pay the costs of such appeal." The appellant contends that the provision of the statute quoted which allows the party to appeal, or, at his option, bring an action against the county, the county, nly applies to cases where the claim arises out of contract, and has no application when the claim sounds in tort. We find nothing in the language of the statuts thus limiting it, and we can see no reason for limiting it by construction. In our opinion, the legislature did not intend to make any such distinction in the two classes of cases. Bass Foundry & Mach. Works v. Board Com'rs Parke Co., 115 Ind. 234, 17 N. E. Rep. 593. The answer was bad. The special verdict finds that the decedent died on or about the 7th day f January, 1890, from injuries caused by the breaking down of a bridge on the 3d day of October, 1889; gives the dimensions of the bridge; that it formed part of a public highway in Allen county, which had been in continuous use by the public as a highway for more than 20 years prior to the date of the injury; and that the bridge was constructed by the appellee in the year 1882. It further finds "that said board of commissioners negligently suffered certain parts of said bridge to be constructed, in material parts thereof, of windshaken timber, and suffered the same to remain there for about eight years, without making any examination of the same, to ascertain whether the same had become rotten, brittle, weakened, and insufficient to sup port the ordinary loads passing thereon with safety. And we further find that said bridge, in material parts thereof, was constructed of defective timber, windshaken, and readily inclined to rot; and we find that said timber, in material parts thereof, had become rotten, brittle, and weakened, unsafe, and dangerous, and suffered to remain so for a long time, to wit, for one year prior to the breaking down of said bridge; but that said defect ve quality of said bridge was not visible | that the load was unusual. On the con. to the casual passer thereon, but that it was of such a character that, had it been inspected by said board of commissioners, or men expert in the quality, strength, and character of timber and bridges, it was easily discoverable. We further find that no precaution had been taken by said board of commissioners of Allen county to put the said bridge in a safe condition, and no repairs had been made thereon trary, the jury expressly find that, “had the timbers in said bridge been sound, the same would have carried said load over safely." They find that there was nothing to indicate to the casual passer any defect in the structure. The traveler on a highway, approaching and about tocross a bridge, has the right to assume that the officers under whose supervision it was constructed, and who are charged with from the time of its erection until after | the duty of its maintenance, have done the same broke down with Horace M. Wright on the 3d day of October, 1889. And we further find that said board of commissioners neglected to in any way warn the travelers thereon of its dangerous condition. And we further find that on the 3d day of October, 1889, while traveling along and over said highway, and on and over said bridge, said Horace M. Wright, who was then and there in the employ of Henry M. Sparks, on his engine and wagon, and when on said bridge, without fault or negligence on his part, said bridge by reason of the said negligence of said board of commissioners in the construction of said bridge, and neglect to keep the same in repair, the said bridge broke and fell," etc. Judged by decided cases in this court, there can be no question as to the liability of the county on the facts found. It is the duty of boards of county commissioners to use at least ordinary care in the construction of bridges and in the selection of material to be used in their construction. After bridges have been constructed, they are chargeable with knowledge of the tendency of the material used to deteriorate from the effects of age, use, and exposure to the elements, and the law requires them to exercise at least ordinary care to guard against the effects of such deterioration. The special verdict finds that they not only negligently used unfit and unsafe material, but that during eight years' of use and exposure to the elements they made no inspection of it, nor in any manner exercised any care whatever to ascertain its condition. The jury find that the defects were of such character that they would have been “easily discernible" if they had inspected it. There is no escape from the conclusion that they were guilty of actionable negligence. House v. Board, etc., 60 Ind. 580; Board Com'rs Howard Co. v. Legg, 110 Ind. 479, 11 N. E. Rep. 612; City of Indianapolis v. Gaston, 58 Ind. 224; Town of Elkhart v. Ritter, 66 Ind. 136; Patton v. Board, etc., 96 Ind. 131; Board, etc., v. Brown, 89 Ind. 48; Vaught v. Board, etc., 101 Ind. 123; Board, etc., v. Dombke, 94 Ind. 72; Apple v. Board Com'rs Marion Co., 127 Ind. 553, 27 N. E. Rep. 166; Board, etc., v. Chipps, (Ind. Sup.) 29 N. E. Rep. 1066. There is no ground for the contention of the appellant that it does not find the facts showing negligence on the part of the county. The appellant insists that the verdict is insufficient to justify a judgment in favor of the appellee, because it does not find that the decedent made any examination of the bridge before going upon it with what the appellant assumes was an "unusual load." The verdict does not find v.32N.E.no.8-47 their duty. Unless he proposes to transport over it a load of unusual weight, or in some other manner to subject it to un. due strain, he need not examine it, but may rely upon its apparent condition of soundness and safety. Undoubtedly, if the load which he proposed to transport over it was an undue or unusual load, or if there was anything in the appearance of the structure, or any other fact of a character to suggest to the mind of a man of ordinary prudence that the bridge was unsafe, or was insuficient in any manner for the use to which he wasabout to subject it, it would be his duty to make some investigation or examination. In the case at bar there is an express finding showing that, if the bridge had in fact been what its appearance indicated, the decedent could have passed over it in safety. The finding as to his freedom from fault is sufficient. We find no error in the record. Judgment affirmed, with costs. (133 Ind. 36) COATS, Justice of the Peace, v. STATE ex rel. MARION WINDOW GLASS CO. (Supreme Court of Indiana. Nov. 29, 1892.) JUSTICE OF THE PEACE-APPEAL BOND -REFUSAL TO ACCEPT-MANDAMUS. 1. Where an appeal bond tendered and filed with a justice of the peace is sufficient, it is his duty to accept and approve it, and mandamus will lie to compel him to perform such duty. 2. Nor is such justice entitled to his fees in advance for approving the bond and making up and transmitting a transcript of the proceedings had before him to the clerk of the circuit court. 3. On refusal by the justice to approve a good and sufficient appeal bond, the injured party may bring mandamus to compel him so to do, and to transmit a transcript of proceedings to the clerk of the circuit court, without waiting for the expiration of the 20 20 days allowed the justice by Rev. St. § 1501, for preparing and transmitting the transcript. Appeal from circuit court, Grant county; R. T. St. John, Judge. Mandamus on the relation of the Marion Window Glass Company to compel William Coats, a justice of the peace, to approve an appeal bond, and to transmit a transcript of proceedings in a cause tried. before him to the clerk of the circuit court. From a judgment granting the application, defendant appeals. Affirmed. G. W. Harvey and Austin De Wolf, for appellant. Wm. H. Carroll and G. D. Dean, for appellee. COFFEY, J. On the 27th day of October, 1890, one Duwaux recovered a judgment against the Marion Window Glass Com. we know of no rule which entitles them to demand and collect fees for services not rendered. The appellee was under no obligation to pay the appellant until he had rendered the service required of him by the statute, and, in view of the fact that the appellant had declined to accept and approve a good and sufficient appeal bond when tendered, we are of the opinion that the appellee was not bound to wait 20 days before the commencement of an action to compel the appellant to perform his official duty. The complaint states a cause of action against the appellant, and the matters set up by him in answer thereto are, in our opinion, wholly insufficient as a bar. Judgment affirmed. (133 Ind. 588) LINDLEY et al. v. SULLIVAN et al.1 (Supreme Court of Indiana. Nov. 28, 1892.) ACTION ON NOTE-ATTORNEYS' FEES-THE RIGHT TO OPEN AND CLOSE-TRIAL BY JURY-EQUITAACCOUNTING BLE DEFENSE - INSTRUCTIONS pany before the appellant, who was an acting justice of the peace of Center township, in Grant county. Within 30 days after the rendition of said judgment the company filed with the appellant a good and sufficient appeal bond in said cause, and prayed an appeal to the Grant circuit court. The appellant refused to approve the bond and grant the appeal. This action was brought in the Grant circuit court by the appellee to compel the appellant by mandate to approve the appeal bond, and to make a certified transcript of the proceeding had before him, and file the same, together with the papers in the cause, with the clerk of the Grant circuit court. The appellant answered the complaint in two paragraphs: First, that he had considered the appeal bond tendered and filed with him insufficient, and for that reason he rejected it; second, that he demanded his fees of the window glass company in advance, which it refused to pay. In our opinion neither of these answers was sufficient to bar the action brought by the appellee. The appellant admits that the bond filed with him was in fact a good and sufficient appeal bond in the case which the company sought to appeal. This being true, it was the duty of the appellant to accept and approve it. If his determination of the sufficiency of the bond were to be adjudged conclusive between the parties, then it would be within the power of a justice of the peace to make his court a court of last resort in any case tried before him by simply determining that any appeal bond tendered him was insufficient. It was never intended, we think, to confer any such power upon a justice of the peace in this state. The acceptance and approval of a good and sufficient bond, when tendered, was a mere ministerial duty, and mandamus is the proper remedy for a refusal to perform such duty. Gulick v. New, 14 Ind. 93; Board, etc., v. State, 61 Ind. 379; State v. Board Com'rs Warrick Co., 124 Ind. 554, 25 N. E. Rep. 10; Copeland v. State, 126 Ind. 51, 25 N. E. Rep. 866; State v. Engle, 127 Ind. 457, 26 N. E. Rep. 1077. We are not called upon to decide what would be the rule in a case where there was a reasonable question as to the sufficiency of the bond, for in this case the appellant occupies the position of refusing to approve an appeal about the sufficiency of which he makes no question. Section 1501, Rev. St. 1881, provides that on filing the appeal bond provided for by the next preceding section of the statute the justice shall make out and certify a complete transcript of all the proceedings had before him, and transmit the same, together with such bond and all other papers in the cause, to the clerk of the cir cuit court to which the appeal is taken - within 20 days thereafter. Of course, the appellant would be entitled to the statutury fees for the performance of the services required of him by this section of the statute. In contemplation of law litigants in court pay the fees due the officers for services rendered as the cause progresses, though this is seldom true in practice. While officers are entitled to their fees when they have rendered the service, OUTSIDE OF PLEADINGS. 1. In an action on a note providing for attorneys' fees, but not stating any amount, the value of the attorneys' services, though not averred, may be proved, but no recovery had beyond the amount claimed. 2. The refusal of leave to amend the complaint so as to claim a larger attorney's fee, not being an abuse of discretion, will not be reviewed. 3. Where defendants admit plaintiffs' claim, but set up an affirmative defense, the right to open and close the case before the jury belongs to defendants. 4. Where there were two defenses, one legal and one equitable, and plaintiffs objected to trial by jury without confining their objection to the equitable issue, it was not error to allow a jury, even if evidence was offered, and the trial proceeded on the equitable issue only. 5. Defendants pleaded that a stock of goods, fixtures, notes, and accounts was turned over to plaintiffs, who were to pay therewith certain debts of defendants, and either return the residue, or close them out for their benefit, and that plaintiffs, after paying the said debts, had a large sum of defendants' money, for which they refused to account. The judge charged, as to the notes and accounts, that plaintiffs should account for the amount "that should have been realized by due care and diligence in collecting them." Held, that the charge ings, was error. as to collecting, being wholly beyond the plead Appeal from circuit court, Vanderburgh county; R. D. RICHARDSON, Judge. Action by James F. Lindley, Sr., and others, against Walter L. Sullivan and another. Judgment for defendants. Plaintiffs appeal. Reversed. L. C. Embree, for appellants. John H. Miller, for appellees. MILLER, C. J. This was an action by the appellants against the appellees upon a promissory note for $300. The note called for attorneys' fees, but contained no specific allegation as specific allegation as to the amount claimed. There was an allegation in the complaint that the defendants were indebted to the plaintiffs on the note for principal, interest, and attorneys' fees, and the amount demanded was $53 in excess of the amount due upon the note Rehearing denied, 33 N. E. 361 |