the neighborhood, and decide that the fee value of this property had been damaged to the extent of $6,000? I think this question was properly considered at the trial and at the general term, and as the case stands it is a finding upon conflicting evidence, with which we cannot interfere. In the Bohm Case, 129 N. Y., at page 592, 29 N. E. 802, Judge Peckham further said: "The question is, what, in fact, has been the actual result upon the land remaining? Has its actual market value been decreased by the taking, or has the taking prevented an enhancement in value greater than has actually occurred, and, if so, to what extent?" 129 N. Y. 593, 29 N. E. 802: "Where it appears that the property left has actually advanced in value, unless it can be shown that, but for the act of the defendant in taking these easements, it would have grown still more in value, the fact is plain that it has not been damaged." I come, then, to the effect on this case of the increase in fee value of the property since the elevated road was built. The Bohm Case distinctly recognizes that, even though such an increase in value has taken place, yet, if it can be made to appear that the premises would have grown still more in value had the railroad not been built, then damage has been proved. In the Bohm Case it was said to be abundantly clear on the evidence that plaintiff's property had not suffered injury, and the question of neighborhood values was of no importance. It has, however, been repeatedly held that the fee and rental values of neighboring property are competent evidence in this class of cases. If competent evidence, it is for the reason it is material and likely to be of assistance to the court in reaching a just conclusion. The practical question is, how was the plaintiff to prove his case? Had there been marked depreciation in the fee and rental values since the completion of the railroad, there would be little difficulty in making out a cause of action; but there is the other class of cases, referred to in the Bohm Case, where there has been an advance in fee value, and the owner desires to show that it would have increased even more if the easements had not been interfered with by the defendants, and the road operated in front of his property. I think a plaintiff in such a position may prove the effect of the road upon the fee and rental value of other property situated on the same avenue upon which the railroad is operated; also as to property situated on adjacent avenues and side streets; he may show the condition and growth of the neighborhood before and after the road was constructed; he may prove the direct effects upon the property of interference with the easements of light, air, and access. What more could he do? This court has said that in such a case the opinion of an expert as to what would have been the value of plaintiff's property had defendants' road not been built and operated is incompetent evidence. Roberts' Case, 128 N. Y. 455, 28 N. E. 486. The question of damage is one of legal deduction by the trial judge or

jury when the facts referred to are duly proved. The decision in the Roberts Case was placed upon the precise ground that the expert was asked to determine the very question that ought to be answered by the court or jury. It cannot be expected that a plaintiff would be able to show to a dollar the amount of damage his property has suffered by reason of the construction of the elevated road; nor can it be said, because accurate proof in this class of cases is difficult, that damages cannot be proved by showing all the surrounding facts, and allowing the trial judge or jury, in the exercise of a sound, honest judgment, to fix the amount. Such a result is not guessing or speculation, but is a judicial estimate, based upon all the known facts involved in the problem submitted for solution. It would be a new doctrine to hold that the recovery of damages is limited to those cases where absolute proof of a sum certain can be made. If such were the case, a large number of plaintiffs would be remediless in courts of justice.

There would seem to be nothing unreasonable in the proposition that residential property along the line of the elevated railroad may experience only a slight advance in fee value after the construction of the road, while property off the line, but in the immediate vicinity, may appreciate in value very largely, for the reason that it has enjoyed all the benefits conferred by the presence of the road in the locality, and the natural growth of the city due to increase of population and business, without suffering from those injuries necessarily inflicted on property in immediate contact with the road. The elevated railway companies are entitled to receive from the courts ample protection in view of the numerous actions they are called upon to defend, and the vast amounts involved in their determination, and judg ments against them ought not to be upheld resting upon mere speculation unsupported by evidence; but, on the other hand, plaintiffs whose property may have experienced a small advance in fee and rental values since the completion of the elevated railroad ought not be remediless when all the facts render it clear that property along the line of the road has been damaged by the interference with the easements of light, air, and access, and has, for that reason, failed to share the advance in values of adjacent property, manifestly due not only to the construction of the elevated system, but to that natural growth which the neighborhood would have experienced by reason of increase of population and business in a great city, even if the railroad had never been constructed.

I am thus brought to the vital question in this case, whether plaintiff was entitled to introduce evidence tending to show that the increase of his property in fee value was not as great as it would have been from natural causes if the elevated road had not been built, and was the court authorized to con

sider that evidence in determining whether there had been an injury to fee value over all benefits? This court has held that in estimating damages to property all benefits to the rental or fee value resulting from the existence of the railway are to be considered, and that only damages over and above benefits are recoverable. Sutro Case, 137 N. Y. 592, 33 N. E. 334; Bischoff Case, 138 N. Y. 262, 33 N. E. 1073. If the value of the benefits that the elevated railroad has conferred upon the property, over and above all other benefits arising from the natural growth of the locality, without regard to the existence of the railroad, is fairly deducible by the court from surrounding circumstances, in the exercise of a sound judicial judgment, it is difficult to understand why it is not equally competent for the court to determine the amount of those other benefits which might have accrued to the property had the road never been built. In fact, it is necessary to separate these two classes of benefits which go to make up the total value of the property before the value of either can be ascertained. The appellants cannot successfully contend that the growth of the locality where this property is situated is wholly due to the elevated railroad. So in finding the value of one class of benefits, you necessarily find the other.

The rule for proving damages, as laid down in the majority opinion in this case, and more particularly in the Bookman Case 147 N. Y. -, 41 N. E. 705, is plausible and reasonable as an abstract proposition, and is an easy way of escape out of a wilderness of difficulties which beset the path of court and counsel in elevated railway litigations; but the ordinary facts presented in these cases are not such, in my judgment, as to justify its application. I am not aware of any locality from the Battery to the northmost limits of the city of New York which fully answers the requirements of this new rule, "a vacant and uninhabited locality, which normal growth has not effectively reached, which improvement has not seriously touched, which remains to be developed, and which has no element of growing value except such as lies in hope and expectation.” While this entire territory is not fully built up and improved, its future is assured. While I am willing to admit that the elevated railway system has been of great and lasting benefit to the city of New York, I cannot concede that we are to ascribe to it alone the marvelous growth of that city since the year 1878. We have presented in this connection a complex and difficult question, but to my mind it is absolutely clear that one of the principal factors in this matter of municipal development is the natural and irrestible increase of population and business in a commercial city like New York, whose swarming population is constantly augmented from sources foreign and domestic. It is not the elevated railways

which have created the city, but it is the city which has made these corporations possible. Every square foot of the territory within the city of New York feels the impulse of this normal growth of population and business, and I can but think it a just rule which holds that, where the elevated railway is extended into a new locality, the property owner, whose easements of light, air, and access are interfered with, should be allowed to prove, if possible, that his property would have been of greater value if it had been left to enjoy the natural growth of the city in population and business without the aid of the elevated road. In many cases it will doubtless be difficult, if not impossible, to make such proof; but it is better to let each case stand on its own peculiar facts, rather than lay down a general rule that may deprive many persons of the right to invoke the aid of the courts in a proper claim for damages. The judgment appealed from should be affirmed, with costs.

ANDREWS, C. J., and PECKHAM and HAIGHT, JJ., concur with FINCH, J., for reversal; O'BRIEN, J., concurs with BARTLETT, J., for affirmance; and GRAY, J., concurs in result.

Judgment reversed.

(142 Ind. 475; 143 Ind. 689) LOUISVILLE, N. A. & O. RY. CO. et al. v. TREADWAY.

(Supreme Court of Indiana. Nov. 6, 1895./ DECISION ON APPEAL-ENTRY OF JUDGMENT.

1. The Code of Civil Procedure authorizes the reversal as to one, and an affirmance as to the other, of a judgment against two defendants jointly.

2. On suit against two railroad companies jointly for personal injuries, the question against which of the defendants judgment for damages allowed by the jury is to be entered is one of law. On motion for rehearing. Denied. For former opinion, see 40 N. E. 807.

MONKS, J. An earnest and able petition for rehearing has been filed by the Monon Company. It is claimed "that this court erred in reversing the judgment as to the Clover Leaf Company, and affirming it as to the Monon Company, because a judgment at law cannot be reversed as to one joint defendant, and affirmed as to the other." The authorities cited by appellant in support of the rule asserted can have no force in this state, for the reason that the question is regulated by our Code of Civil Procedure. Section 570, Rev. St. 1881 (section 579, Rev. St. 1894), provides, "Though all the defendants have been summoned, the judgment may be rendered against any of them severally, when the plaintiff would be entitled to judgment against such defendants if the action had been against them severally." Section 568,

Rev. St. 1881 (section 577, Rev. St. 1894), provides, "Judgment may be given for or against one or more of several plaintiffs and for or against one or more of several defendants, and it may, when the justice of the case requires it, determine the ultimate rights of the parties on each side as between themselves." Section 569, Rev. St. 1881 (section 578, Rev. St. 1894), provides that "in a suit against several defendants the court may in its decision render judgment against one or more of them leaving the action to proceed against the others whenever a several judgment is proper." Under these sections it has been held by this court that the trial court possessed chancery powers in adapting its judgment to the rights of the parties (Draper v. Van Horn, 12 Ind. 352; Douglass v. Howland, 11 Ind. 554; Cutchen v. Coleman, 13 Ind. 568); that if a plaintiff sue two or more jointly, and only prove a liability as to one, he is entitled to a judgment against that one (Stafford v. Nutt, 51 Ind. 535, and cases cited on page 538; Railway Co. v. Duvall, 40 Ind. 246; Thornt. & B. Ann. Ind. Prac. Code, §§ 568-570, and notes). In Lower v. Franks, 115 Ind. 334, on page 337, 17 N. E. 630, this court, in speaking of the foregoing sections of the Code of Civil Procedure, said: "In the case of Hubbell v. Woolf, 15 Ind. 204, following the case of Blodget v. Morris, 14 N. Y. 482, it was held, in terms, that this provision of the Code applies to all actions indiscriminately, whether founded upon contract or upon tort; that it is immaterial whether the complaint al leges a joint, or a joint and several, liability; that the right of recovery is, in this respect, to be regulated by the proof, and not by the allegations of the complaint. In other words, every complaint is, in the respect stated, to be treated as both joint and several when there are two or more defendants. That the object of the provision, obviously, is to prevent a plaintiff who proves a good cause of action against part of the defendants, but not against all, from being put to the expense and delay of a new action." In this case each appellant separately moved the court below to render judgment in its favor, which motions were each overruled, and judgment rendered against both appellants. The Clover Leaf's motion for a judgment in its favor on the special verdict should have been sustained, and judgment rendered by the court accordingly. The mandate of this court merely directs the court below to render the judgment that should have been rendered in the first instance. The Monon Company is in the same situation as if the court had sustained the motion of the Clover Leaf Company, and rendered judgment in its favor, and the Monon Company had alone prosecuted this appeal. Besides it is expressly provided by statute that this court may reverse a case in whole or in part. Rev. St. 1881, §§ 660, 661 (Rev. St. 1894, §§ 672, 673). It has been uniformly held by this court, since the Code of Civil Procedure took effect, in 1853, that a

case may be reversed as to a part of the appellants, and affirmed as to others, and such has been the uniform practice. Railway Co. v. Duvall, supra; Steeple v. Downing, 60 Ind. 478, 503, 504; Dodge v. Dunham, 41 Ind. 186; State v. Mills, 82 Ind. 126; Lower v. Franks, supra; Railway Co. v. Robbins, 128 Ind. 449, 26 N. E. 116; Haxton v. McClaren, 132 Ind. 235, 31 N. E. 48; English v. Aldrich, 132 Ind. 500, 31 N. E. 456; Spaulding v. Spaulding, 133 Ind. 122, 32 N. E. 224; Eppert v. Hall, 133 Ind. 417, 31 N. E. 74, and 32 N. E. 713; Haskett v. Maxey, 134 Ind. 182, 33 N. E. 358; Irey v. Mater, 134 Ind. 238, 33 N. E. 1018; Clark v. Hillis, 134 Ind. 421, 34 N. E. 13; Duckwall v. Kisner, 136 Ind. 99, 35 N. E. 697; Offut v. Cooper, 136 Ind. 701, 36 N. E. 273; Small v. Kennedy, 137 Ind. 299, 33 N. E. 674; Radican v. Buckley, 138 Ind. 582, 38 N. E. 53; Flora v. Russell, 138 Ind. 153, 37 N. E. 593; Garr, Scott & Co. v. Shaffer, 139 Ind. 191, 38 N. E. 811.

This cause was not reversed upon the evidence as to the Clover Leaf Company, as stated in the petition for a rehearing, but upon the special verdict, for the reason that the facts stated in the special verdict entitle the Clover Leaf Company to a judgment. It is insisted that the cause should be reversed as to the Monon Company for the further reason "that an indivisible and inseparable part of the damages assessed by the jury was essentially assessed against the Clover Leaf Company." No part of the damages assessed by the jury was assessed against either company, but the amount fixed was such as, in the judgment of the jury, would compensate appellee for her injuries. It was left to the court to say, as a matter of law, whether judgment should be rendered for the same against both, or only one, of the appellants.

The other questions presented in the petition for a rehearing were fully considered and determined in the original opinion. The petition is therefore denied.

1. In an action in H. county, a plea in abatement that defendants are residents of C. county, and are not residents of H. county, is insufficient, in that it does not show that defendants were not residents of H. county at the time the action was begun.

2. It is not error to sustain a demurrer to one of several paragraphs in an answer, where all the evidence which could be introduced under the stricken paragraph can be introduced under the paragraph or paragraphs remaining.

Appeal from circuit court, Hamilton county; R. R. Stephenson, Judge.

Action by Elizabeth Morris against Robert E. Moore and others to set aside deeds to land, and for possession and damages. From a judgment for plaintiff, defendants appeal. Affirmed.

Urmston & Warrum, for appellants. Fertig & Alexander and Harding & Hovey, for appellee.

HOWARD, C. J. The original paragraph of the complaint in this case alleged facts going to show fraud on the part of appellants and their agents in the procurement from appellee of deeds for certain lands in Hamilton county during a time, as alleged, when appellee was of unsound mind, and incapable of transacting business; praying that the deeds be set aside, and for possession and damages. A second paragraph of complaint was afterwards filed, not alleging unsoundness of mind, but setting up the fraud in a more particular manner, asking for damages, and to have a vendor's lien on the land declared in appellee's favor. Other pleadings were filed, and there was a finding by the court and judgment for damages in favor of appellee. A vendor's lien was also awarded for any balance of the judgment left after execution against the personal estate of the appellant Robert E. Moore.

The first assigned error discussed by counsel is that the court erred in sustaining the appellee's demurrer to the appellants' plea in abatement to the second paragraph of the complaint. In Needham v. Wright (decided by this court at last term) 39 N. E. 510, it was said, citing numerous authorities, that in pleas in abatement, and other dilatory pleas, the utmost fullness and particularity of statement, as well as the highest attainable accuracy and precision, are required. The pleader must not only answer fully what is necessary to be answered, but must also anticipate

and exclude all such supposable matter as would, if alleged on the opposite side, defeat his plea. Tried by this rule, the plea in abatement filed by appellants was insufficient, for many reasons. It will be enough to indicate one of them. The plea was based chiefly on the claim that the appellants were residents of Marion county, and could not, therefore, be sued on a merely personal action in Hamilton county. We do not think the action as stated in the second paragraph of the complaint was merely personal; but, even if it were, the averment that "the said defendants are residents of Marion county, Indiana, and are not residents of Hamilton county," would not be sufficient. For all that appears from this or any other averment in the plea, the appellants might have been residents of Hamilton county at the time the action was begun. If they had been residents of Hamilton county when process was issued and served, they could not defeat such service by moving to Marion county before the filing of the plea in abatement.

The only other assigned error discussed by counsel is that the court erred in sustaining the appellee's demurrer to the third and fifth paragraphs of the appellants' answer. This assignment, being joint as to the two paragraphs named, does not present the question as to the sufficiency of either, but of both. If, therefore, the ruling as to one of the paragraphs was correct, the assignment must fail. Ketcham v. Barbour, 102 Ind. 576, 26 N. E. 127; Noe v. Roll, 134 Ind. 115, 33 N. E. 905. The fifth paragraph of answer was a plea of the six-years statute of limitations, as against the fraud alleged in the second paragraph of the complaint. The second paragraph of the answer, to which a demurrer was overruled, was also a plea of the six-years statute of limitations, in answer to the whole complaint, and particularly to the second paragraph thereof. In addition, at the time of filing the answer, a demurrer had been sustained to the first paragraph of the complaint, thus leaving the second paragraph as the whole complaint. As, therefore, all facts which could be proved under the fifth paragraph of the answer could also be proved under the second, the court did not err in sustaining the demurrer to the fifth, even if there were any error in sustaining the demurrer to the third, paragraph, which we do not think.

No question is raised as to the correctness of the judgment on the merits of the case. The judgment is affirmed.

ballot will be rejected in the count, though the departure was innocently made.

2. A ballot with two separate and distinct impressions of the stamp will be rejected, as bearing a distinguishing mark, within Rev. St. 1894, § 6248 (Elliott's Supp. § 1374).

3. That the scamp was not placed on a ballot with such precision as to make a single, perfect impression will not render the ballot invalid.

4. A ballot bearing within one of the large squares a distinct marking, as with a pencil, about one-fourth of an inch wide and five-sixteenths of an inch long, in addition to the voter's stamp, contains a distinguishing mark, and cannot be counted.

5. Rev. St. 1894, § 6248 (Elliott's Supp. 8 1374), declares that ballots bearing distinguishing marks shall be void, but that, on protest of a member of the board, such ballots shall be preserved by the inspector, placed with the seals of the ballot packages in paper bags securely sealed, and so delivered to the county clerk; and that "the poll clerk shall also record on the tally sheet, memoranda of such ballots, and the condition of the ballot packages, and in any contest of election such ballots and seals may be submitted in evidence." Held, that the provision relating to the duty of the poll clerk is merely directory, and a failure to follow it will not preclude inquiry into the validity of ballots returned by the inspector.

6. The longhand manuscript of the evidence taken by the stenographer is, under Rev. St. 1881, § 1410 (Rev. St. 1894, § 1476), an original document, incorporated in the bill of exceptions; and original papers read in evidence, accompanying and identified by such report, may be treated as embraced therein, and properly in the record. Railroad Co. v. Quick, 9 N. E. 788, 925, 109 Ind. 295, followed.

Appeal from circuit court, Hamilton county; R. R. Stephenson, Judge.

Proceeding by John F. Passwater to contest the election of Charles Zeis to the office of township trustee. The board of county commissioners rendered a decision in favor of the contestant, and defendant appealed to the circuit court, where it was adjudged that neither party had been elected to the office. From this judgment, defendant appeals. Reversed.

Kane & Kane and Roberts & Vestal, for appellant. J. F. Neal and Fertig & Alexander, for appellee.

HACKNEY, J. The appellant and the appellee were opposing candidates at the November election, in 1894, for the office of township trustee. Upon the face of the election returns, the appellant received 197 votes, and the appellee 196 votes, the former being declared elected. The appellee, before the board of county commissioners, contested the election of the appellant, and obtained the decision of said board that he (the appellee) had received the highest number of legal votes.

From that decision this appellant appealed to the circuit court, where, upon a trial of the issue, it was adjudged that each of said candidates had received an equal number of votes, and therefore that neither had been elected. The questions here involved relate to the validity of ten disputed ballots, nine of which were rejected by the election board of the east precinct, and one was counted in the west precinct for the ap

pellee. Of the nine rejected ballots, the circuit court counted four for the appellee, and three for the appellant; rejecting two ballots of the five ballots stamped within the square containing the emblem of the party upon whose ticket the appellant was a candidate. The tenth disputed ballot, or that which was counted by the election board for the appellee, was held by the court not to be admissible in evidence. It will be seen, therefore, that, conceding the seven disputed ballots counted by the court to have been valid, if either of the two ballots rejected by the court was valid, or if the ballot not admitted in evidence was admissible and was involved, the appellant would prevail by a majority of one; while, if both rejected ballots should have been counted, his majority would have been two; and if both rejected ballots were invalid, and that excluded from the evidence was admissible and was valid, the appellant would have received 200 votes, and the appellee 199 legal votes. Of the seven ballots counted, there is little question. The four stamped within the square containing the emblem of the appellee's party each contained but one impression of the stamp. That impression, however, was in one instance not very clear and distinct, yet discernible; while in each of the others it was somewhat blurred, as if made by a tremulous hand. Of the five stamped within the square containing the emblem of the appellant's party, three were of the same character as the three last above described; while the other two contained each two entirely separate and distinct impressions of the stamp. These, it is conceded, were the two rejected by the circuit court. They were invalid, as containing distinguishing marks, and were properly rejected. Sego v. Stoddard, 136 Ind. 297, 36 N. E. 204. The seven counted contained no distinguishing mark. If, in preparing the ballot, the voter manifestly endeavors in good faith to comply with the requirements of the law, he should not suffer the loss of his vote. Bechtol v. Albin, 134 Ind. 193, 33 N. E. 967. When, however, in the preparation of the ballot, there is such departure from the strict letter of the law as that, if purposely done, the ballot could be known by the voter after casting it, such departure distinguishes the ballot within the meaning of the law; and this is true even if the departure is made innocently. In our opinion, the slight variation from the placing of the stamp with such precision as to make a single perfect impression was not fatal to these ballots. To this point we have concurred with the trial court in concluding that upon the returns, adding the nine rejected ballots, each candidate had 200 votes.

It now remains but to determine whether the court erred in holding that the tenth ballot was not competent evidence, and whether the ballot was valid. The tally sheet of the west precinct was admitted in evidence. It contained a memorandum that five