wise, gains someundue advantage to him- | demands, although such courts do not feel self which in equity and good conscience themselves bound by any arbitrary rules, does not belong to him, to the detriment

not in terms apply to equity cases, but where the jurisdiction of law and equity is concurrent, as in this state, “equity will follow the law," and will act in obedience to the statute. See 13 Amer. & Eng. Ence. Law, 674 et seq., where the question is fully discussed and the cases cited. It appears from the special finding that many of the items were barred by the six-year statute, if applicable; and, the same having been properly pleaded, it was the duty of the court to give it effect. The point was saved, also, by a motion to modify the judgment.

The judgment is reversed, with costs, and thecause remanded, with instructions to the court below to restate its conclusions of law in accordance with this opinion, and render judgment for appellee for such amount only of the taxes sued for as came into the appellant's hands within six years before the beginning of this action; and, if this cannot be done, to grant a new trial, if the same is properly asked for at the next term of court after this opinion shall have been certified to said court.

(5 Ind. App. 560)

but let the particular circumstances conof the other, or where a person has obtrol each case. Where the statute does tained money belonging to another through accident or mistake as well as through fraud, in such cases the person thus wrongfully profiting by the advantage gained will be treated as the trustee of the other, and compelled to account as such to the real beneficiary. Such cases belong in the category of constructive, and not of direct, trusts. Perry, Trusts, §§ 24-27, 86; 4 Lawson, Rights, Rem. & Pr. § 2014. A direct trust may doubtless exist where an officer holds funds in a fiduciary or public capacity, but in such a case it is not the corporation or municipality of which he is an officer that is the trustee, but the officer himself. Where, however, the corporation or municipality would derive an undue benefit from the transaction, as where a fund not belonging to it has come into its hands by mistake, and it has been covered into its general treasury, and converted, and upon demand the corporation, through its officers, refuses to pay an equivalent for such fund, as in the present case, the law will construe such corporation a trustee for the party entitled to the money, and the trust will be a constructive one. That the statute of limitations applies to such a case is now well settled. "It has been urged that the statute cannot apply in favor of persons who become trustees by construction of law, as where a person is construed into a trustee of property which he has fraudulently obtained, or where a trust estate is traced into his hands, or where a resulting trust arises; and that the cestui que trust is not precluded in such cases from his remedy by lapse of time. But the later authorities establish the doctrine that the statute applies in such cases." 2 Perry, Trusts, § 865. It may be stated, however, that, even if it should be conceded that the statute per se does not run in cases involving this character of trusts, it is still true that it can be set in operation by a demand. Wherea demand is necessary to make the statute operative, of course the cause of action does not accrue until such demand has been made. Cole v. Wright, 70 Ind. 179. But there must be a limit to the time within which a demand must be made. Thus it was said in High v. Board, etc., 92 Ind. 580: “Although the cause of action did not accrue until a demand was made, yet the demand should have been made within a reasonable period from the time that it might have been made. A reasonable time, in the absence of circumstances justifying or excusing a longer delay, is the true limit by the statute for the commencement of the action. If the rule was otherwise, a party, by his own act or failure to act, could preclude the running of the statute of limitations until such time as might suit his interest or convenience or pleasure to put it in motion." See, also, Landers v. Fisher, 2 Ind. App. 64, 28 N. E. Rep. 204.

These decisions proceed upon the familiar principle in equity, independent of stat. ute, that courts of equity will not encour. age the bringing and prosecution of stale

OHIO & M. RY. CO. v. SMITH.
(Appellate Court of Indiana. Dec. 13, 1892.)
INJURY TO PASSENGER - PLEADING CONTRIBUTORY
NEGLIGENCE- SUFFICIENCY OF COMPLAINT AFTER
VERDICT - GENERAL AND SPECIAL VERDICTS
INSTRUCTIONS.

1. In an action against a railroad company for injuries to a passenger, a complaint which alleges that, after the train arrived at plaintiff's destination, plaintiff immediately proceeded as far as the door of the car, and while in the act of stepping out of the door, onto the platform, the train suddenly started without warning, throwing plaintiff on the floor of the car, sufficiently shows plaintiff's freedom from contributory negligence to withstand an objection raised for the first time in arrest of judgment; the rule being that, on motion in arrest, all intendments are taken in favor of the pleading, and, if it contains a statement of facts sufficient to bar another suit for the same cause of action, its defects, if any, are cured by the verdict.

2. A general verdict in plaintiff's favor is not inconsistent with a special finding that the train stopped at the station for two minutes; since plaintiff may have been so impeded by her valises and her two children, and so delayed by other persons leaving the car or entering it, that the conductor, knowing the facts, and knowing or being bound to know and to recollect that she was to alight at that station, was not free from negligence in failing to give her a longer time in which to alight.

3. While the practice of quoting the body of the complaint by the trial court in stating the issues to the jury is not to be commended, it is no_ground for reversal.

4. In an action by a passenger for personal injuries sustained, while attempting to alight, by the sudden starting of the engine, where the evidence shows that the attempt was not made until after the train had stopped, an instruction relating to the duty of a passenger not to attempt to get off the train after it starts or while in motion is properly refused, as not pertinent.

appellant, was a regular place for the stopping of its train, and that the train on which she took passage was accustomed to stop thereat. It was alleged

train at the station a sufficient length of time to afford the appellee a reasonable opportunity to get off the train, without danger of injury to her person. Railroad

that, “on arriving at said station at Lex-Co. v. Hendricks, 26 Ind. 228, and 41 Ind.

48; Railroad Co. v. Parmalee, 51 Ind. 42; Railroad Co. v. Buck, 96 Ind. 346; Reibel v. Railroad Co., 114 Ind. 476, 17 N. E. Rep. 107; Railroad Co. v. Crunk, 119 Ind. 542, 21 Ν. E. Rep. 31; Thomp. Carr. 226-227. The appellee may have been so incumbered and impeded by her valises and her two children, and so delayed by other persons leaving the car or entering it, that the conductor, knowing these facts, and knowing or bound to know and to recollect that she was to alight at that station, was not free from negligence in fail

ington, the defendant stopped its said train; that the plaintiff immediately, and without delay, proceeded as far as the door of said car, and, while in the act of stepping out of the door onto the platform of the car, the train and said carsuddenly, and with a sudden bound, started, without any warning from the defendant that the train was going to start." It is further shown that the train, without stopping, ran forward about one eighth of a mile from said station of Lexington, where it was stopped, and the appellee, with her children, was put off. It is al-ing to give her a longer time than two

leged "that, by reason of the sudden stopping and starting of the train as aforesaid, she, with one of her said children in her arms, was thrown down on the floor of the car, whereby she was injured in her back," etc., "in violation of the duties and obligations of the defend ant towards her as a passenger on its train," etc. There is not here an entire absence of averment of matter affecting the question of want of fault on the part of the appellee. Facts are stated which have relation to the subject of her care and diligence. She is shown to have been a passenger rightfully upon the car, and rightfully, at the proper place and under the proper circumstances, proceeding by the usual means to leave the car, which had stopped at the station where she was entitled and required to alight. It appears that she proceeded with proper expedition, and that she was only prevented from alighting at the station by the fact that the train did not wait there a sufficient time. It was not her fault that the train started in the manner

minutes after the arrival of the train to alight. We have had occasion to look at the evidence under another assignment of error, and it shows that the passenger was incumbered with two valises and two small children, one of them carried in her arms, and the other led by the hand, and that when she had reached thedoor of the car she stepped back to let in another lady, who had been assisted to get on the car by the conductor; also that the conductor had taken up her ticket, and that when, after the injury, she told him she wanted to get off the train, be said to her that he thought she was going to another station, named by him. The evidence is now referred to only to illustrate how, notwithstanding the facts shown in answer to interrogatories, there might be such negligence on the part of the appellant, and such diligence and care on the part of the appellee, as to sustain the general verdict.

The jury awarded the appellee $600. It is insisted that this was an excessive amount of damages. It is also contend

described. Without averring that sheed that the verdict was not sustained by

was doing her duty as a passenger destined to that station, yet what she alleges she was doing was her duty as a passenger. She, with her child in her arms, was properly at the door step when the train suddenly started, without warning, and it is alleged that it was by reason of that sudden stopping and starting that she was thrown down. Giving to the language employed the meaning which would be attached toit in common usage, it may be said that it conveys the impression that the passenger was without fault. Indulging the most liberal intendment, as we are required by the authorities, we hold, not without hesitation, however, that the complaint was not subject, after verdict, to the objection urged against it by counsel.

With the general verdict in favor of the appellee, the jury returned answers to interrogatories. The appellant's motion for judgment on the answers to interrogatories was overruled. These answers showed that the train stopped at the station at Lexington two minutes, and that two buggies and a sulky plow were unloaded there from the train. The facts thus shown were not necessarily inconsistent with the general verdict. It was the duty of the appellant to stop its

the evidence. Under well-settled rules and principles, the discussion of which would be of no general utility, we cannot, for either of these reasons, disturb the result reached in the court below.

The court's first instruction to the jury is criticised, because, in stating the issue, the body of the complaint was quoted. Without commending this method, it must be held that it is not a good reason for reversing the judgment. Clouser v. Ruckman, 104 Ind. 588, 4 N. E. Rep. 202.

Complaint is made because of the refusal of the court to give the second instruction requested by the appellant. This instruction related to the duty of the appellee not to attempt to get off the train after it started, or while it was in motion, and was not pertinent to the case before the jury. The judgment is affirmed.

other cases following it, may seem to assert that, in all cases where one has loaned money to a married woman, the burden of proof is on the lender to show that she received, or was to receive, the benefit of the loan, or that in the transaction she was not a surety. A comparison of these cases with the later cases will show that this is the rule only where there is something about the transaction to indicate that the debt is apparently or may be the debt of another, and not her debt. This is not the rule where the transaction shows upon its face that it is her separate contract." Under these decisions it was not necessary for the appellant in her answer to state facts from which her want of power to make the note would affirma. tively appear, or to show that she executed the note as the surety of her codefendant; but her second paragraph of answer cast upon the appellees the burden of showing in their reply that the contract was one which she had the power to make. To render the reply sufficient, it

on the plaintiff to show for what purpose she contracted, and to prove it clearly. The statute is in derogation of the common law, and as its design, as we interpret it, was to secure to married women the benefit of their contracts, and not to remove their disabilities, so as to enable them to make contracts for the benefit of others, the burden of proof is upon the person making a contract with her, in which she might be surety, to show that she either did or was to receive the benefit of it," etc. To the same effect, see Cupp v. Campbell, 103 Ind. 213, 2 N. E. Rep. 565. In Thacker v. Thacker, 125 Ind. 489, 25 N. E. Rep. 595, it was said: "The test by which to determine the relation of a married woman to a contractin which she has become a joint promisor with others is not what relation she agreed to occupy, but what she received, or what she was to receive, in consideration of her promise. If, in fact, she neither received nor con-tracted for any benefit, but signed upon a consideration, the benefit of which was received by one of the joint promisors, | should have shown a state of facts from

* *

*

then, no matter that she may have agreed to be bound as principal, the law assigns to her the status of a surety, and she will not be bound unless she has in some way estopped herself from setting up the facts." Elliott v. Gregory, 115 Ind. 98, 17 N. E. Rep. 196, was an action on an account against the appellee, Charlotte Gregory, for medical services rendered to her at her request, and upon her promise to pay for the services. Referring to the defendant's answer, the court said: "It impliedly admitted the rendition of the services sued for and Mrs. Gregory's promise to pay for the same, and then set up her coverture as a protection against her liability to pay for such services. This, under existing statutes and our decisions upon them, was not a good defense to the complaint." Miller v. Shields, 124 Ind. 166. 24 N. E. Rep. 670, was an action against a married woman on a promissory note, executed by her alone. Commenting upon the cases of Vogel v. Leichner, supra, and Cupp v. Campbell, supra, it was said: "In that class of cases the presumption which naturally arises because of the peculiar relation that exists between husband and wife is that he is the principal debtor, and she but his surety, and hence it was well ruled in those cases that the obligation could not be enforced against her, nor against her property specifically pledged for its payment, it not appearing that she was a principal debtor. But where a married woman, as she has full power to do under the married woman's act, executes her individual note, whereby she promises to pay a given sum of money,

which the court could determine that she was not a surety. It is not shown what was the consideration, or what was the contract in pursuance of which the consideration was yielded to the appellant, or how she or her estate was benefited. The reply deals altogether in conclusions. Pleadings should be so construed as to lead to definite issues of fact. The reply having been tested by demurrer, we must hold it insufficient. We will not be understood as deciding that it was incumbent upon the appellees to show that there w as such a consideration for the noteas would be necessary to sustain an action brought by the payee against themaker. In Vogel v. Leichner, supra, it wassaid: "Of course it is not meant by what has been said that the contract must in the end have resulted beneficially to the wife. Having been relieved of her disabilities, to the extent that she is enabled to contract for her own benefit and the benefit of her estate, she must be allowed to act on her judgment concerning what will benefit her or her estate; and when she contracts for the purpose and upon the consideration that she or her property shall be benefited, and is principal in fact, as well as in form, she will not be permitted to say, as regards such contract, that she has been disappointed in the result, and is therefore a surety." And in Cupp v. Campbell, supra, it was said: "As we said in Vogel v. Leichner, supra, where a wife contracts for a benefit to herself or her estate, and is principal in fact, as well as in form, she will be permitted to exercise her judgment, and will be held to her

the question is very different. No pre-contract as any other persou, even though

sumption such as that announced in the cases above can prevail. To hold that when a married woman executes her individual promissory note she is presumed to stand as surety for her husband or some other person, until the contrary is made to appear, would be to carry the doctrine of presumptions beyond the border line. " In Cummings v. Martin, 128 Ind. 20, 27 N. E. Rep 173, it was said: "Language used in Vogel v. Leichner, supra, and some

disappointed in the result; but it must appear that she did contract for and upon a consideration moving to herself, or going to the benefit of her estate, and not for the benefit of another, or upon a consideration to be received or already had by another."

In an action on a promissory note governed by the law merchant, brought by indorsees, before maturity, in good faith, and without notice, against the makers,