Gaff et al. v. Hutchinson et al. and was not filed in the clerk's office until the 27th day of August, 1869. Where time is given beyond the term, in which to file a bill of exceptions, it must ordinarily, if not in all cases, be filed within the time limited. There is nothing in this case, if there can be in any, that authorizes the filing of it after the time limited. The practice is quite commendable for the judge, as was done in this case, to require the bill to be shown to the opposite counsel, before signing it. Where opposite counsel thus have an opportunity to inspect a bill before it is signed, and are thus enabled to point out mistakes or omissions that might otherwise escape the scrutiny of the judge, the bill will be much more likely to be accurate than if signed without inspection by the opposite party. And, in our opinion, the bill ought to be prepared in such time as will give the opposite party a reasonable opportunity to examine it, if he desires to do so, or if the judge desires him to do so, and also to give the judge convenient time for examination, before the expiration of the time limited for the signing and filing of the same. In this case the bill was not signed until about three months, or filed until about five months, after the time limited; and yet no good reason appears why it might not have been signed and filed within the prescribed time. We may observe that the charges of the court are not contained in the record, except as they are embodied in the bill; hence, as the bill of exceptions is no part of the record, the charges are in no manner before us. The judgment will have to be affirmed. The judgment below is affirmed, with costs and two per cent. damages. ON PETITION FOR A REHEARING. WORDEN, C. J.-Upon a reconsideration of this case, on the petition for a rehearing, we find no cause to change the conclusion heretofore arrived at, nor do we think it neces Gaff et al. v. Hutchinson et al. sary to add anything to what was said in the original opinion, except upon one point, which was not fully considered in the original opinion. It was insisted in the original brief of the appellants, and again in the petition for rehearing, as one of the grounds on which the judgment should have been arrested, that the pleadings were not in such condition as to warrant a judgment in favor of the defendants for the amount recovered by them. The complaint consisted of three paragraphs, sounding in contract, in which the plaintiffs demanded the sum of ten thousand dollars. The defendants pleaded the general denial, but this was afterward withdrawn, and may be regarded as never having been filed. They also pleaded, secondly, by way of set-off, that the plaintiffs were indebted to them in the sum of ten thousand one hundred and eighty-four dollars and seven cents, and demanded judgment for that sum. This paragraph was accompanied by a long bill of particulars, or statement of accounts between the parties, in which the plaintiffs are credited with some of the matters embraced in their complaint, and not with others, and also, we believe, with some not embraced in their complaint. The third paragraph of the answer is of no importance to the question involved. The fourth paragraph of the answer admitted the plaintiffs' cause of action, but averred payment thereof. Replication in denial of the second and fourth paragraphs of the answer. This Under these pleadings, it is quite clear, as we think, that judgment could properly have been rendered for the defendants for any amount not exceeding the amount claimed by them in their answer of set-off, viz., the sum of ten thousand one hundred and eighty-four dollars and seven cents. must be so on every principle of pleading. The plaintiffs' cause of action was admitted, to be sure, because not denied, and it was expressly admitted in the fourth paragraph of the answer. But then it was averred to have been paid. It may have been paid. If the jury had found for the defendants for the whole amount claimed by them in their set-off, 38 348 126 439 The City of Indianapolis v. Lawyer et al. this court could not say, without having the evidence before it, that the plaintiffs' claim had not been fully paid, nor that the amount found for the defendants was not due them. The pleadings in the cause are clearly sufficient to sustain the judgment rendered. The petition for a rehearing is overruled. C. E. Marsh, W. S. Holman, F. E. McDonald, J. M. But ler, and E. M. McDonald, for appellants. B. Hynes, L. Q. De Bruler, C. A. De Bruler, and A. Iglehart, for appellees. KEENEY V. THE INDIANAPOLIS AND ST. LOUIS RAILROAD COM- 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 case, 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. M. A. Osborn and L. Ritter, for appellee. THE CITY OF INDIANAPOLIS v. LAWYER ET AL. CITY.-Drainage.—Injury to Adjoining Property.—Where, by its system of drainage, a city has accumulated a large flow of water on a particular street, it is its duty to provide for the escape of the water without damage to adjoining property, The City of Indianapolis v. Lawyer et al. SAME.-Railroad.—If a city permit a railroad company to occupy and cross streets and alleys, and require it to construct culverts, and the city adopt them for its use, and they prove insufficient, or become out of repair, the city will be liable for injury resulting to adjoining property by reason of such insufficiency. SAME.-While the city will not be liable for injury resulting from defective sewers constructed for the exclusive use of the railroad company, still she cannot delegate her general power and adopt the work of the company as part of her general system without responsibility for defects in the work. PRACTICE-Demurrer to Evidence.-On a demurrer to the evidence, it is the duty of the court to take as true the propositions of fact established by the evidence, and to infer from the evidence every conclusion which the jury could reasonably have drawn from it. SAME.-Interrogatories to Jury.-Where there is a demurrer to the evidence, interrogatories should not be submitted to the jury in assessing damages. APPEAL from the Marion Common Pleas. DOWNEY, J.-The appellees sued the city. In the amended fourth paragraph of the complaint, which was the only paragraph held by the court to be sufficient, they alleged, that on the 7th day of May, 1865, they leased for a term of ten years certain real property in said city, and erected thereon a large and commodious warehouse, with steam elevators, for the purpose of storing and moving large quantities of grain or other produce; that there was by nature a free and easy drainage of said ground, and that the water falling on and flowing by or over said ground naturally had a free and easy and rapid exit and egress into Pogue's Run, by which it was carried away; that the city of Indianapolis, the defendant, who has sole jurisdiction for the improvement and drainage of streets and building of sewers within the corporate limits of said city, had adopted and maintained a system of sewerage and drainage, and so constructed the drains and sewers that the rain falling upon a vast extent of territory, to wit, a space of about six hundred acres, had been caused to flow down. the gutter of New Jersey street, in front of plaintiffs' property, and thence by gutters and sewers into Pogue's Run; and that said city had thus vastly increased the volume of water naturally flowing by or over the plaintiffs' said grounds; that notwithstanding the natural drainage and exit. The City of Indianapolis v. Lawyer et al. and egress of said water was free and unobstructed, and easy and rapid from said ground into Pogue's Run, and although the city, by the system of sewerage and drainage adopted by her, has vastly increased the volume of water flowing by said ground of the plaintiffs, yet the defendant, the said city, has failed to provide a sufficient way of exit and egress for such increased volume of water; and has so negligently and unskilfully, and in such an imperfect and defective manner, constructed and maintained the drains and sewers on said New Jersey street, and leading from the point opposite plaintiffs' property into Pogue's Run, to wit, by making and keeping said drains and sewers wholly insufficient in size and capacity to carry off the water which was compelled to pass through them, and by obstructing all other egress or exit for said water, except through said insufficient and defective sewers and drains, and by suffering and permitting said sewers and drains to remain and continue stopped up, and choked up, so as to prevent and obstruct the flow and passage of the water passing down said street, and to dam up the water, and cause the same to back and rise and stand in front of plaintiffs' property, on New Jersey street, and above and around said property, at great depth, to wit, four feet above the grade established by said city, which was higher than the natural surface, where prior to said obstructions, so caused and permitted by the said defendant, no water stood; and that by the negligent and insufficient and defective and unskilful construction of such drains and sewers, and by wrongfully and negligently permitting and suffering such defective and insufficient drains and sewers to become and remain filled up and choked and obstructed, the said defendant had caused the water to be dammed and backed up, and to rise and stand on New Jersey street, in front of and above plaintiffs' property, and around the same, at divers times, which could not then be particularly set forth or enumerated; but in April, 1865, the exact day whereof could not be given from memory, and no memorandum was kept, and at divers subsequent times during said summer, |