The Pittsburgh, Ft. Wayne, and Chicago Railway Company v. Ruby. worthiness on the part of the agent or servant of the company. They insist that the question is one of character, and that, consequently, it must be settled by such evidence as is admitted to prove character and no other. They do not contend that evidence of general reputation is admissible, but that evidence of character, in its proper sense, is admissible, and that alone admissible, in proof of the fact. The books of reports are wonderfully barren of authorities upon this exact point. In this case there were three separate and distinct acts or instances of alleged want of care, prudence, skilfulness, or trustworthiness on the part of Kiser before the jury from which to infer that he was not careful, prudent, etc.; for we suppose that in support of this first proposition of fact in the case it was competent for the jury to consider his acts at the time when the plaintiff was injured as well as on the other two occurrences referred to in the evidence. We were of the opinion, in the former consideration of the case, and we are still of the opinion, that these acts of the conductor were properly left to the jury for their consideration, with the other evidence, in determining this part of the case. In a further search for cases upon this point, we have noted Gahagan v. Boston and Lowell Railroad Company, 1 Allen, 187. The question related to negligence, etc., of a flagman, and the evidence was offered by the company. The court say: "This was a fact which could be proved by witnesses who had seen his conduct, and could testify to the facts which they had observed. It did not require that they should be experts." In Murphy v. Pollock, 15 Ir. Com. Law, 224, the judges were equally divided in opinion, whether the jury might or might not infer the fact of the incompetency of the agent or servant from the single occurrence upon which the action was based. It was alleged in that case that the master had neglected to employ competent persons to manage the engine, the boiler of which had exploded and injured the VOL. XXXVIII.-21 The Pittsburgh, Ft. Wayne, and Chicago Railway Company v. Ruby. plaintiff. The Chief Justice and DEASY, B., were of opinion that they might do so, while FITZGERALD and HUGHES, BB., were of a contrary opinion. They all agreed, however, that evidence of specific acts was admissible. We also refer to Gilman v. Eastern Railroad Co., 13 Allen, 433. In support of the second proposition of fact, it was neces sary for the plaintiff to show that the company had notice of the incompetency of Kiser, or that they might have acquired such knowledge by the use of reasonable diligence. This evidence must, we think, relate to a time prior to that at which the plaintiff received the injury. That which had not yet happened could be no notice to any one. It is shown that the master of transportation, whose duty it seems to be to hire and discharge conductors and others managing freight trains, and to regulate the running of such trains, etc., was present on one occasion referred to in the evidence. But counsel for the company insist that notice to him was not notice to the company. We could not come to this conclusion so readily. We think that notice to an agent of a corporation, relating to any matter of which he has the management and control, is notice to the corporation, and we do not see any reason why this rule is not applicable here. Danville Bridge Co. v. Pomroy, 15 Pa. St. 151; The Mechanics' Bank v. Schaumburg, 38 Mo. 228. As it was the duty of the master of transportation to communicate all matters concerning his agency to his principal, it may be presumed that he did so. But whether he did so or not, notice to him is notice to his principal, when it relates, as it did here, to the business which he was transacting for the company. He was placed in his position that he might make himself acquainted with the conduct of those who were placed under his direction and control, and he seems to have had the power to appoint and remove, promote and degrade, those who were engaged in the business of which he had the oversight. All that we have decided in this case, on this point, is that the fact that the master of transportation was present on one occasion when Kiser is alleged to have been Hubbard et al. v. Harrison et al. guilty of negligence, was competent evidence to go to the jury, and from which, and the other circumstances, the jury might find that the company had notice of the carelessness of Kiser, or with the use of proper diligence might have had such notice. Upon the other proposition of fact, that is, that the plaintiff was injured by the negligence of Kiser, there is no question made. The petition is overruled. WORDEN, C. J., having been of counsel, was absent. R. Brackenridge, F. Brackenridge, and R. S. Taylor, for appellant. F. L. Worden, F. Morris, and J. Colerick, for appellee. BLAKE V. THE INDIANAPOLIS AND ST. LOUIS R. R. Co. APPEAL from the Hendricks Circuit Court. PETTIT, J.-In all legal aspects, this case is the same as Straughan v. The Indianapolis and St. Louis Railroad Company, ante, p. 185; and on the authority of that, the judgment in this is in all things affirmed, at the costs of the appellant, with five per cent. damages. W. A. McKenzie, for appellant. L. Ritter and M. A. Osborn, for appellee. HUBBARD ET AL. v. HARRISON ET AL. PROMISSORY NOTE.-Indorser.-Mortgage.-Pleading.-Suit on two promissory notes executed by A. to C., and transferred by C., by indorsement, to plaintiff. Answer by C., that he indorsed the notes as an accommodation indorser for A., in renewal of certain other promissory notes of 38 323 126 458 127 265 Hubbard et al. v. Harrison et al. A. before that time held by the plaintiff; that at the time of said indorsement, the plaintiff held a mortgage from A. as security for the payment of said other notes, and any renewals thereof; that the plaintiff agreed with C., at the time of his indorsement, that in consideration of such indorsement the plaintiff would hold said mortgage for the benefit of C., as such indorser; and on the faith of such promise, he did so indorse the notes in suit; that said mortgage had, by the wilful and gross neglect and misfeasance of the plaintiff, without the fault of defendant C., ceased to be of any value as a security to C.; and that A. had become insolvent. Held, that the answer was bad on demurrer, as it failed to state the terms and conditions of the mortgage, or the property mortgaged, or its value, or how it ceased to be of any value. SAME.-Mortgage.-Failure to Record in Time.-Pleading.-C. answered in another paragraph the same matter, alleging, also, that the mortgage was set out with the complaint, and was on personal property, which property was left by the plaintiff in the possession of A., and that the mortgage was not recorded within ten days, which fact the plaintiff fraudulently concealed from C.; that plaintiff and A. induced C. to make such indorsement, the plaintiff consenting that A. should enter upon said mortgage an acknowledgment that C. was an accommodation indorser of the notes, which were in renewal of part of the original debt thereby secured; and in consideration that C. did so indorse the notes in suit, the plaintiff made an entry on said mortgage, acknowledging that so far as said mortgage was then a subsisting security, it stood as an indemnity to C. for such indorsement of the said notes, subject, however, to any priority, if there existed any in law, to other parties who might have become bound on any part of the original debt, or renewals of the same, or to the ratable interest of such parties in said mortgage; and the defendant alleged that the property mortgaged was more than sufficient to pay said notes, as well as other debts secured thereby; that the plaintiff became, by such entry on said mortgage, a trustee thereof for the benefit of C. and any others interested therein; that C. could not, by payment of the notes, avail himself of said mortgage, and he therefore refused to pay the same when due, and unpaid by A., and gave the plaintiff notice to resort to said mortgage security, which plaintiff refused to do; and by reason of such failure and refusal, and before the last of said two notes matured, one E. obtained a judgment against A., and sold, on execution, all the property included in said mortgage; that before either of said notes became due, the plaintiff obtained a judgment against A., which was prior also to the judgment of E., and levied upon all said mortgaged property, and assigned said judgment to one G., to enable him to purchase said property; and the same was all held by others, relieved of any lien of said mortgage; that the plaintiff so acted for the purpose of hindering, delaying, and defrauding C. of his right in said property, the plaintiff knowing said A. to have become insolvent; and by reason of the wilful negligence and misfeasance of the plaintiff, said mortgage became worthless to C., and this without his fault. To this paragraph the plaintiff replied, that said mortgage was not held as a security for the notes, in renewal Hubbard et al. v. Harrison et al. of which the notes in suit were given, but to secure other notes of A. which were also indorsed by C.; that C. was liable on the notes of which the notes in suit were renewals, and believing that he would have to pay the same, and to save himself from loss, and avoid the operation of the bankrupt law, he procured A. to make said memorandum on the mortgage, knowing that said mortgage had not been recorded; and the plaintiff, not concealing said fact, nor soliciting him to indorse said notes, nor agreeing to hold said mortgage for his benefit, and without any consideration therefor, made said entry on the mortgage, to enable C., if he could, to avail himself thereof; that C. left the mortgage with plaintiff, without any promise from him that he would do anything therewith for C.'s benefit, and the same was subject at all times to his order. Held, that this reply was good on demurrer. EVIDENCE Estoppel - The plaintiff was not bound by the indorsement made on the mortgage by A, but could dispute the truth of the statement contained therein on the trial. PRACTICE. Agreement by Court as to Future Rulings.-As a rule, it is not proper for the court to agree, beforehand, what it will or will not decide, at some subsequent stage of the cause. EVIDENCE.-Cross Examination of Party.-A party examined by his adversary is not confined to a mere response, by way of cross examination, to what has been elicited from him in the direct examination, but he may testify to any matter pertinent to the issue. PROMISSORY NOTE.-Agreement to Pay Attorneys' Fees.-The promise in a note to pay" attorneys' fees, if suit be instituted on this note," can be enforced against an indorser. EVIDENCE.-Attendant Circumstances.-The conversations of the parties and their attorneys before and at the time of the indorsement of the notes, and the entries on the mortgage, were proper evidence to show the attendant circumstances of the transaction. MORTGAGE.—Assignment Without Transferring Debt.-The assignment of a mortgage, without assigning an interest in the debt it is given to secure, is an unmeaning ceremony. APPEAL from the Marion Circuit Court. DOWNEY, J.-The appellees sued John W. Canan and the appellants, who are executors of the will of George W. Clippinger, deceased, on two promissory notes made by Canan. to Clippinger, dated November 20th, 1869, one at sixty and the other at ninety days, payable at Harrison's Bank, with interest and attorneys' fees, if suit should be instituted on them, and which notes were indorsed by Clippinger to the appellees. A separate action had been commenced on each note, but as they were consolidated by agreement, and a |