had an account with the bank as administrator. That in January, 1914, in a proceeding in court, John F. Perry was found to be insolvent, and Willard F. Pearson was appointed receiver for his estate. The facts in regard to the receipt, deposit, and disposition of the draft for $4,250 are found as alleged, and likewise the execution of the two bonds given by John F. Perry. That on April 17, 1913, John F. Perry unlawfully converted and appropriated said sum of $4,250 to his own use, is now insolvent, and has wholly failed, neglected, and refused to turn over to appellee, the relator, any part of said funds. That appellant desired Perry to obtain possession of the funds with which he could pay his indebtedness to the bank, and Perry desired control of the money to use in his individual business, and on April 17, 1913, appellant and said Perry, knowing the draft belonged to the estate of Fred M. Perry, deceased "conspired and confederated together for said purpose, and mutually agreed that the proceeds of such draft should be by said bank placed to the credit of the individual deposit account of said Perry, and pursuant to said agreement, the proceeds of said draft were so deposited and $1,944.39 thereof was, by said bank, applied on the individual indebtedness of said Perry, and the balance of said proceeds were withdrawn from said bank and used by said Perry in his individual business." them in bank to the credit of his personal account and check them out in the usual course of business, and the bank, though it has knowledge of the character of the funds so deposited, is not thereby made liable to the beneficial, or actual, owners of such funds, in the absence of any knowledge on its part that the funds are being misappropriated or misapplied by such trust officer. If the bank with knowledge of the character of the funds so deposited, applies them to the payment of the personal debt of the depositor, due such bank, or knowingly accepts from him payment of his individual debt out of such funds, or knowingly assists, or permits such depositor to misuse or misapply such funds, it may be held liable therefor to the beneficial or actual owner thereof to the amount of the funds so misapplied or misused. [4] The fact that the bank has knowledge of the character of the funds is an important circumstance which calls for caution in dealing with and honoring checks upon such deposits, though such knowledge is not sufficient, in and of itself, to create liability, or to cause the bank to require the depositor to place such funds in an account separate and apart from his individual account. Bundy v. Town of Monticello, 84 Ind. 119, 127; U. S. Fidelity, etc., Co. v. Adoue & Lobit, 104 That appellant, with the knowledge afore-Tex. 379, 137 S. W. 648, 652, 138 S. W. 383, said, placed the amount of said draft to Per-37 L. R. A. (N. S.) 409, Ann. Cas. 1914B, 667; ry's credit in his individual account with the Duckett v. National Mechanics' Bank, 86 Md. bank, and commingled it with his individual funds, and thereby enabled him to withdraw it on his individual check for his own use, and by reason thereof the whole sum was converted to his individual use and squandered. That during all said time John F. Perry was making deposits in said bank in his personal account and his checks were honored by the bank. That Willard F. Pearson, Perry's receiver, took into his possession property of Perry and reduced the same to cash aggregating over $13,000, of which amount he still has in his possession $3,500. On the foregoing finding of facts the court stated its conclusions of law: (1) That Miami County Bank by its acts became cotrustee with John F. Perry in the management of the assets of said estate, and jointly liable with him as principal in accounting for said trust funds. (2) That the administrator de bonis non ought to recover of John F. Perry, Miami County Bank, Ballard and Ballard, and Maryland Casualty Company $5,119.12. (3) That the property of John F. Perry and Miami County Bank should be first exhausted before resort is had to the property of Ballard and Ballard and Maryland Casualty Company. (4) That the residue be recovered as follows: One fifty-first part from Ballard and Ballard, and 50 fifty-first parts from Maryland Casualty Company, but not exceed ing the amount of each of said bonds. [2, 3] An administrator or other person having charge of trust funds may deposit 400, 38 Atl. 983, 39 L. R. A. 84, 63 Am. St. The language employed by the Supreme Court of Maryland in Duckett v. Nat'l Mechanics' Bank, supra, is appropriate here (86 Md. 400, 38 Atl. 983, 39 L. R. A. pp. 87, 88, 63 Am. St. Rep. 513): principle, all persons who knowingly participate "There can be no dispute that, as a general or aid in committing a breach of trust are responsible for the wrong, and may be compelled to replace the fund which they have been instrumental in diverting. Every violation by a trustee of a duty which equity lays upon him, whether willful or fraudulent, or done through negligence, or arising through mere oversight or * * ble to restore it. Christian v. Highland, Adm'r, 32 Ind. App. 104-111, 69 N. E. 266; Gieseke v. Johnson, 115 Ind. 308, 309, 17 N. E. 573; Howe v. White, 162 Ind. 74-83, 69 N. E. 684; Hunter v. First National Bank, 172 Ind. 62-67, 87 N. E. 734; Barnes v. Sammons, 128 Ind. 596-600, 27 N. E. 747; Goodwin v. Davis, 15 Ind. App. 120– 122, 43 N. E. 881; P., C., C. & L. Ry. Co. v. German Ins. Co., 44 Ind. App. 268, 87 N. E. 995; Fast v. State ex rel., 182 Ind. 606-608, 107 N. E. 465; Simmons v. Scarborough, 129 Ga. 125-131, 58 S. E. 1037. forgetfulness, is a breach of trust. 2 Pom. Eq. [5] Neither paragraph of the cross-comJur. 1079. There is, in such instances, no plaint against appellant avers that the surety primary or secondary liability as respects the parties guilty of, or participating in, the breach company has paid, or in any way satisfied, of trust, because all are equally amenable. the demand of the estate for the funds for If the bank knowingly aided and par- which Perry failed to account as administraticipated in Clagett's breach of trust, then the tor. Without such payment or satisfaction bank is, beyond dispute, as responsible to the new trustees as is the defaulting trustee himself. of the debt, the surety company cannot avail This liability of the bank depends, however, itself of the equitable right of subrogation. altogether upon the contingency that it knowing- Its claim is one of indemnity for loss sustainly aided the trustee, Clagett, to commit the ed by reason of its having paid the debt for default of which he was undeniably guilty. If without knowledge of Clagett's misconduct; or which appellant was primarily liable, and if without sufficient notice to put it on inquiry which in equity and good conscience it should that would have enabled it to ascertain that have discharged. The absence of such averClagett was mingling with his individual deposits, and using as his own, money that the ments from the cross-complaint renders it inbank knew, or had the means of knowing, was sufficient. Nelson v. McKee, 53 Ind. App. trust money; or if it was merely the innocent 344-348, 99 N. E. 447, 101 N. E. 651; Hinkle agency through which, without fault or negli-v. Hinkle, 20 Ind. App. 384-389, 50 N. E. 829; gence on its part Clagett depleted the trust estate then it was not guilty of aiding him in misappropriating the trust fund, and is not lia* * It is true, undoubtedly, that a bank is bound to honor the checks of its customer, so long as he has funds on deposit to his credit, unless such funds are intercepted by a garnishment or other like process, or are held under the bank's right of set-off. It is equally true that whenever money is placed in bank on deposit and the bank's officers are unaware that the fund does not belong to the person depositing it, the bank, upon paying the fund out on the depositor's check, will be free from liability even though it should afterwards turn out that the fund in reality belonged to some one else than the individual who deposited it. It is immaterial, so far as respects the duty of the bank to the depositor, in what capacity the depositor holds or possesses the fund which he places on deposit. The obligation of the bank is simply to keep the fund safely and to return it to the proper person, or to pay it to his order. If it be deposited by one as trustee, the depositor, as trustee, has the right to withdraw it, and the bank, in the absence of knowledge or notice to the contrary, would be bound to assume that the trustee would appropriate the money, when drawn, to a proper use. Any other rule would throw upon a bank the duty of inquiring as to the appropriation made of every fund deposited by a trustee or other like fiduciary; and the imposition of such a duty would practically put an end to the banking business, because no bank could possibly conduct business if, without fault on its part, it were held accountable for the misconduct of malversations of its depositors who occupy some fiduciary relation to the fund placed by them with the bank. In the absence of notice or knowledge, a bank cannot question the right of its customer to withdraw funds, nor refuse (except in the instances already noted) to honor his demands by check; and therefore, even though the deposit be to the customer's credit in trust, the bank is under no obligation to look after the appropriation of the trust funds when withdrawn, or to protect the trust by setting up a jus tertii against a demand. But if the bank has notice or knowledge that a breach of trust is being committed by an improper withdrawal of funds, or if it participates in the profits or fruits of the fraud, then it will be undoubtedly liable." [6] The third paragraph of complaint is a suit upon the $5,000 bond of the defaulting administrator. By this paragraph it is sought to hold appellant jointly liable as principal with John F. Perry, the defaulting administrator. The bank did not execute the bond, and is in no way liable on the contract. Appellant's liability, if it exists, is not based on contract, but arises from the tort in which it participated by the wrongful application and misuse of the trust funds deposited by Perry in the Miami County Bank. [7, 8] Under the facts found by the court, appellant may be held liable as a cotrustee of the trust funds deposited by Perry, but it became such trustee, ex maleficio, by its wrongful dealing with such trust fund and not otherwise. The first, second, and third conclusions of law hold appellant liable ex contractu, on the bond, including a penalty authorized by statute against defaulting administrators in certain instances. Sections 2981, 2982, Burns 1914. Conceding that the appellant is liable in tort for its wrongful dealing with the trust fund, it does not follow that it can be held jointly liable with the administrator in a suit, ex contractu, upon the bond which it did not execute. The conclusions of law 200, 291; Boyer v. Tiedman, 34 Ind. 72; 13. EMINENT DOMAIN 120 Clark v. Lineberger, 44 Ind. 223. [9, 10] Misjoinder of causes of action is not of itself, ground for reversal. Sections 279-281 Burns 1914; Cargar v. Fee, 140 Ind. 572, 576, 39 N. E. 93; Brown v. Bernham, 159 Ind. 538, 540, 65 N. E. 580. "It is not sufficient that the actions joined should be on money demands, or for the recovery of money. The demands must also arise out of contract. Therefore an action to recover money for a tort cannot be joined with one to recover on a demand arising out of contract. This was the rule before the Code was enacted. And the Code has not changed the rule." 1 Works' Practice, § 327. "Giving the Code its most liberal construction, it could hardly be claimed that it authorizes the joinder of two parties in one action, where the judgment against one must be for a tort and the other upon contract." 1 Works' Practice, § 317. "The Code has not abolished the distinction between actions sounding in tort and those sounding in contract; nor can causes of action of the two classes be joined." C. W. & M. Ry. v. Harris, 61 Ind. 290, 291. The case at bar presents a question that goes beyond the misjoinder of causes of action where each cause is against the same parties, for it not only joins a suit upon a contract with a suit sounding in tort, but it seeks to hold appellant liable upon a contract to which it is not a party upon facts, that at most only show a liability for a wrong which gives a right of action in no sense "arising out of contract." Our conclusions already announced make it unnecessary to discuss the other questions considered in the briefs, for the reason that they are, in the main, controlled by the principles above stated. The judgment is reversed, with instructions to sustain appellant's motion for a new trial, and for further proceedings not inconsistent with this opinion. (61 Ind. App. 389) PITTSBURGH, C., C. & ST. L. RY. CO. v. LAMM. (No. 8824.) CHANGE OF RAILROAD GRADE-ADDITIONAL BURDEN. Generally a railroad may improve, repair, or change its roadbed, and raise or lower its grade, without liability to an abutting owner, unless the change is made in a negligent mantional burden not included in the original approner; the improvement not constituting an addipriation. [Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. §§ 315-319; Dec. Dig. m 120.] 216(2)-COMPLAINT-DEMUR 4. PLEADING RER. When the theory of a complaint is apparent and clearly outlined, it must be sufficient on that theory when tested by demurrer. [Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 537, 538; Dec. Dig. 216(2).] 5. APPEAL AND ERROR 171(1)-REVIEWTHEORY OF COMPLAINT. Where the predominating theory of a complaint is uncertain, the facts pleaded by it being susceptible of more than one construction, the theory adopted by the trial court, and on which the cause proceeded, will be followed on appeal. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1053-1055, 1062, 1063, 1066, 1067; Dec. Dig. ~171(1).] 6. RAILROADS 113(2)-CHANGE OF GradeDAMAGES FROM NEGLIGENT WORK. Where a railroad constructs an embankment to raise its road, so that clay is washed therefrom onto the lawn of an adjacent owner, recovery may be had therefor. [Ed. Note.-For other cases, see Railroads, Cent. Dig. § 353; Dec. Dig. 113(2).] 7. PLEADING 204(2)—COMPLAINt-Demur RER. A complaint stating facts entitling plaintiff to a part of the relief demanded is good against demurrer for want of facts. [Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 486, 487; Dec. Dig. ~204(2).] 8. RAILROADS 222(1) - CHANGE OF RAILROAD GRADE-LIABILITY FOR DAMAGES. Increased inconveniences to adjoining owners from smoke and vibration from passing trains, because of raising grade, furnish no ground for recovery, not being due to improper construction or negligent operation. [Ed. Note. For other cases, see Railroads, Cent. Dig. § 720; Dec. Dig. 222(1).] 9. APPEAL AND ERROR 1031(3)-PREJUDICIAL ERROR-INCOMPETENT EVIDENCE. Incompetent evidence on a material matter (Appellate Court of Indiana, Division No. 2. is presumed harmful, unless the record shows March 30, 1916.) 1. COURTS 114 CORRECTION OF RECORDNUNC PRO TUNC ENTRY. The minute on the court's bench docket, "Instructions as given and refused filed," is a sufficient memorandum to authorize the granting of application for a nunc pro tune entry to have the record show that such instructions were filed. [Ed. Note.-For other cases, see Courts, Cent. Dig. § 368; Dec. Dig. 114.] 2. COURTS 114-CORRECTION OF RECORDNUNC PRO TUNC ENTRY. That a party, by mistake to his detriment, had the clerk change his correct entry on the court's minutes, is not ground for refusing him a nunc pro tunc entry to have the entry speak the truth; no one having been misled. [Ed. Note.-For other cases, see Courts, Cent. Dig. 368; Dec. Dig. 114.] the contrary. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes If the nuisance, whereby clay is washed from a railroad's embankment onto a lawn, has been abated, the diminution of rental value during the time of the nuisance is the measure of damages. [Ed. Note. For other cases, see Railroads, Cent. Dig. § 370; Dec. Dig. 114(3).] Appeal from Circuit Court, Miami County; Joseph N. Tillett, Judge. Action by Willis C. Lamm against the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with instruction. See, also, 110 N. E. 997. George E. Ross, of Logansport, for appellant. Cole & Cole, of Peru, for appellee. In MORAN, J. Appellee, whose property abuts upon appellant's right of way, recovered damages in the sum of $500, which he claimed to have suffered by reason of appellant's raising its railroad grade some 12 feet and constructing an additional track. this appeal, which is from a judgment rendered on the verdict of a jury for the foregoing damages, appellant assigns as error the refusal of the court to grant appellant's petition to correct the record nunc pro tunc, the overruling of appellant's demurrer to the first and second paragraphs of complaint, and the overruling of appellant's motion for a new trial. [1] The order book entry does not affirmatively show that the instructions given and refused were filed, and to cure this infirmity appellant petitioned the trial court for an entry nunc pro tunc. The proceedings asking for this relief are regular, they show that the instructions were in fact filed, and the minute upon the court's bench docket, viz., "Instructions as given and refused filed," is a sufficient memorandum to authorize the granting of the application for a nunc pro tunc entry. Ewbank's Manual (2d Ed.) § 214a; Brittenham v. Robinson, 22 Ind. App. 536, 54 N. E. 133; Perkins et al. v. Hayward, 132 Ind. 95, 31 N. E. 670. [2] The only objection urged by appellee against the granting of the relief sought by appellant for an entry nunc pro tunc is that appellant, through its counsel, caused the clerk to alter the entry as originally made in reference to the instructions, and that the infirmity in the record is not due to the mistake or misprision of the clerk, but due to appellant's counsel. There are instances where the litigant will be bound by an error which he invited the court to make. In the first instance the clerk made an entry from the court's minutes, which virtually spoke the truth, and what is now being contended for by appellant; but afterwards, at the request of counsel for appellant, the same was altered by interlineation by the clerk, so as not in fact to speak the truth, and to the detriment of the one suggesting the same to be made. This was not done by the sanction or authority of the court, but by a ministerial officer of the court, and evidently upon a mistaken notion of counsel as to what the entry should contain. No one was misled thereby. It is a principle of law that: "A party will be relieved against his own mistake or carelessness where no rights of third persons have intervened, but not where rights have been lost, or money parted with, on the faith of except the party seeking relief." Gray v. Robthe apparent facts, without fault of anybody inson, 90 Ind. 527. We are not impressed with the argument that, because the alteration was invited by the one now complaining, the record should not be made to speak the truth, and remain as it is. In Security Co. v. Arbuckle, 123 Ind. 518, 24 N. E. 329, it was said: "It is the duty of the court to see that a correct minute is made on its order book of every step taken in any pending action." entry as prayed, and while this calls for a The court erred in refusing to direct the remanding of the cause, with directions to however, the conclusion we have reached On lot 43 is a the lower court to instruct the clerk of the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes appellee's lots, and which flows under his of the construction of the grade or embankhouse and becomes stagnant and endangers ment built by appellant; but as to whether the health of appellee's family. The em- a recovery is sought under the ordinance and bankment is an unsightly structure, shuts off contract, or independent of the same, is not the view to appellee's house, and prevents clear from the allegations of the complaint. free access of the air and light. A great In the admission of evidence, the court examount of dirt, dust, and cinders, in addi- cluded as an element of damage the injury altion to such as are emitted from the locomo-leged to have been caused by reason of the tive, are thrown upon appellee's premises; and the noise and vibration caused by the passing trains have greatly increased by reason of the elevation of the tracks. Appellee's property has been damaged in the sum of $1,500 by being rendered undesirable as a residence. There is no material difference between the first and second paragraphs of the complaint. Both set forth a copy of the town ordinance and the contract entered into between appellant and the town. elevation of the road and the building of the embankment itself, the obstruction of appellee's view by reason thereof, and the prevention of the free circulation of air over appellee's premises, which were elements alleged in the complaint from which appellee suffered injury; and, further, the record clearly discloses throughout the trial that the court treated the action as based upon commonlaw liability, irrespective of the ordinance and contract. [4] When the theory of a complaint is apparent and clearly outlined, it must be sufficient upon that theory when tested by demurrer. Carmel Natural Gas Co. v. Small, 150 Ind. 427, 47 N. E. 11, 50 N. E. 476. [5] Where, however, the predominating theory is uncertain, then the theory adopted by the trial court, and upon which the cause proceeded, will be followed in the appellate tribunal. Cleveland, etc., R. R. Co. v. De Bolt, 10 Ind. App. 174, 37 N. E. 737; Southern Ry. Co. v. Jones, 33 Ind. App. 333, 71 N. E. 275; Calloway Receiver v. Mellett, 15 Ind. App. 366, 44 N. E. 198, 57 Am. St. Rep. 238. The facts pleaded in the case at bar are such as to be susceptible of more than one construction, and might be construed as proceeding upon different theories; hence the theory placed upon the complaint by the trial court will be followed by this court. [3] It may be stated as a general proposition that a railroad company has the right to improve, repair, or change its roadbed, and raise or lower its grade, when in its judgment to do so would increase its efficiency, without rendering itself liable to respond in damages to an abutting property owner, upon the theory that such improvement does not constitute an additional burden not included in the original appropriation, and is not liable unless such change is made in à careless and negligent manner. Baltimore & Ohio S. W. R. Co. v. Quillen, 34 Ind. App. 331, 72 N. E. 661, 107 Am. St. Rep. 183; Pittsburgh, etc., R. Co. v. Atkinson, 51 Ind. App. 315, 97 N. E. 353; Egbert et al. v. Lake Shore, etc., R. Co., 6 Ind. App. 350, 33 N. E. 659. Pursuant to an ordinance by the town of Amboy, appellant raised its roadbed and tracks through the town, and as a part of the ordinance a contract was entered [6, 7] Among the several elements of daminto between appellant company and the town ages alleged is the element that the embankcovering the manner in which the improve- ment was built some 12 feet above the level ment was to be made, and among other of what it had been and of appellee's lots, things it is provided that appellant was to and so as to slope downward in close proxpay all damages to property which was caus-imity to appellee's property, and that the ed by the proposed improvement, and to have embankment has been widened by the washdue regard for the rights of individuals and corporations affected by the improvement or change incident thereto. As aforesaid, a copy of the ordinance and contract was filed with and made a part of each paragraph of complaint. It is appellee's contention that the action was based upon the ordinance and contract, and by reason thereof his right of recovery was enlarged over and above what it would have been under the common law. On the part of appellant it is contended that there is nothing in the contract imposing a liability on it for the alleged injuries as set forth in the complaint, and that upon this theory the demurrer should have been sustained. The relief sought by appellee in both paragraphs of complaint was for damages to his real estate by reason of the change of the railroad grade. Many elements of damage are pleaded, growing out of and as a result ing down of yellow clay, out of which it was built, until it has encroached upon appellee's premises, and the yellow clay has been carried over and upon appellee's premises, and deposited upon his lawn and walks, which had rendered his premises undesirable as a residence. Under the facts in each paragraph of the complaint, this allegation is so pleaded as to entitle appellee to recover therefor, and, being a part of the relief demanded, the complaint is good as against a demurrer for want of facts. Indianapolis, etc., Trac. Co. v. Brennan, 174 Ind. 1, 87 N. E. 215, 90 N. E. 65, 68, 91 N. E. 503, 30 L. R. A. (N. S.) 85; Sebienske v. Downey, 47 Ind. App. 214, 93 N. E. 1050; United States, etc., Co. v. Harris, 142 Ind. 226, 40 N. E. 1072, 41 N. E. 451; Linder v. Smith, 131 Ind. 147, 30 N. E. 1073; Jessup v. Jessup, 7 Ind. App. 573, 34 N. E. 1017. An unusual number of questions are pre |