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FOREWORD 

This volume is an exact photo reproduction of an 
original copy of the 

REPORTS OF CASES 

ARGUED AND DETERMINED 

IN THE SUPERIOR COURT OF INDIANA 

BY OLIVER M. WILSON, OFFICIAL REPORTER 

WITH 
COLLECTION OF AUTHORITIES CITED TO CASES 

VOLUME 1, INDIANAPOLIS 

1875 

in the hbrary of the University of Washington Law 
Library. 

Special acknowledgment is made to the University of 
Washington Law Library and Dr. Arthur S. Beardsley, 
the Librarian for the kind permission to use the original 
volume in this reproduction. 

As a copy of the original is practically unobtainable, 
this copy is offered to enable law libraries to complete 
their Indiana collections. 

The edition has a limited printing. 

DENNIS & CO., INC. 
Buffalo, N. Y. 
February, 1941 

Registered Copy No. /Cy i^ 



REPORTS 



OF 



CASES ARGUED AND DETERMINED 



IN THE 



SUPERIOR COURT 



AT 



INDIANAPOLIS 



WITH COLLECTION OF AUTHORITIES CITED TO CASES. 



VOL. I. 



By Oliver M. Wilson, 

OFFICIAL RKFORTBR. 



INDIANAPOLIS : 

JOURNAL COMPANY, PRINTERS 

1875. 



1 1 NOV W63 




JUDGES SUPERIOR COURT. 



HON. SOLOMON BLAIR.* 

Term expired October 9, 1872. Be-«Iected October 9, 1872. 
Term expiree October 9, 1876. 



HON. HORATIO 0. NEWCOMB.* 

Term expired October 9, 1874. Be-eleeted October 9, 1874. 

Term expiree October, 1878. 



HON. FREDERICK RAND.* 

Term expires October, 1874. Reeigned Angiut, 1872. 

HON. SAMUEL E. PERKINS. 

Appointed soocenor to Jadge Rand, August, 1872. Term expired Oct^ 1874. 
Sleeted October, 1874. Term expires October, 1878. 



^Appointed by the Goyemor February 25, 1871, under the act establish- 
ing the Superior Ooort, approved February 16, 1871. 



CASES REPORTED IN THIS VOLUME. 



Adami) Coeby t^ 842 

Adams ei aL, Jackson ▼ 898 

ArmsiroDg, Hilly 859 



B 



Baker (Goy.)i ^o» ▼ ^27 

tBaker, Desaaaer v ~429 

Baker et al., Bruce v .426 

Baker, Bennett v. 158 

Baldwin ▼. Biersdorfer et al 1 

Baaer v. Stumph et al 614 

Bennett v. Baker et al 158 

Bigham, Stamph v 867 

Biersdorfer, Baldwin v 1 

Benson, McFadden v 627 

Blair v. Buser 888 

Bohring v. Boot ^ 29 

Board of Commissioners Marion 

County, Farman v 816 

Boardman, Thurston v 488 

Boedecker, Elliott et al. v 164 

Brennan et al. v. Locklear 69 

Bright v.Lord et al 528 

*Brigg8 et al., 8neaghan et al. v.. 76 

Brouse et al., Dawson et al. v 441 

Brown et al., Keid v.~ 812 

Bruce v. Baker etal 462 

Buser, Blair v.. 883 

Bush V. Fetrowetal 887 







Campbell v. Miller 412 

Canan, Sullivan y 682 

Carter v. The Augusta Gravel 

Boad Company. ..« 14 

Church, Maulsley v 862 

Clawson v. Shortridge et al 282 

Coder et al., Sigler v~ 864 

Cosby v. Adams.. 842 

Crane et al. v. Lord 268 

Cruse et al., Quwack ▼ ^ 820 

Curry v. Curry 286 



Dain, Facta ▼.. 148 

David et al. v. Eessler et al......619 

Davidson ▼. Wildman 427 

Dawson et al. v. Brouse et al 441 

*DeFord v. Urbain ^ 67 

^Dessar v Rich et al.. 872 

^Dessauer v. Baker 429 

Dickson et al.. Kemp v. 42 

Dietrichs et aL Schaw v.... 168 

Donaldson, Hill v 862 

B 

Edwards, Knight et al. v.. 564 

Elliott et al. v. Boedecker 164 

Espy et al., Hammons v 686 

Erdelmeyer, Root v 99 

Evans v. Wadkins. 114 



F 



Farman v. Board of Commission- 
ers of Marion Co. et al 816 

Farman v. Ratcliff et al 146 

Fetrow et al., Bush v 887 

Fletcher v. Zeigler et al 408 

Fletcher, Smith v 84 

Fox V. Baker (Gov.) ^ 827 

G 

Geisendorff et al., Sohl v.. 60 

Gillespie et al. v. Splahn.. 228 

Greenstreet v. Norris 419 

Grubbs et al.. Leas et al v 801 

H 

Hammons v. Espy et al 686 

Harrison v. Russell et al 891 

^Hasselman et al. v. Yandes et al..276 

Hedrick v. Kramer 112 

Helwig et al., Jordan v 447 

HendersoD, Smock v. 241 



▼1 



CASES SBPORTED. 



Hill V. Armstrongs • 869 

Hill v.I>onaldm>n 852 

Hill V. SUgg 408 

Hillman v. 8tumph et al 285 

Huggpns v.Tinftman et al ^ 291 

Hurley ▼. Bailroadi..^ 295 

I 

Irwin et al. y. Smith et al.. ..••••• 544 

J 

Jackion v. Adams et al 898 

Jordan t. Helwig et al ..^447 

K 

Kemp T. Dickson et al~ 42 

Kendelberger v. Vandeusen 289 

KenyoD et al. v. The City of In- 
dianapolis. ^ 129 

Kessler et al., David et al. t 519 

Kimball, The 8Ute ▼ 174 

KirUv.Spaugh 267 

Knight etal.v. Edwards 564 

Kramer, Hedrick ▼ 112 

L 

Leas et al. v. Gruhhs et al 801 

Locke V. Munson 54 

Lord et al., Bright v.. 528 

Lord, Crane et al. V 63 

Locklear et al., firennan v......... 59 

M 

*Macauley,Mayor,etc., Sylvester ¥.19 

Haguire v. Smock et al 92 

Major et nl., Morris v 864 

Marot, The Germania Building, 

Ac., Association V 541 

Miaulsley v. Church ,^.862 

Martin, Mazelin v^ 428 

Mazelin v. Martin 428 

Meiners, Munson v 459 

Merchants' National Bank ▼. 

Randall et al 166 

Milford V. Weslev etal 119 

Miller, Campbelfv 412 

Morris v. Major et al 864 

Munson v. Meiners. 459 

Munson, Locke v 54 

McCartv, The SUte v. 205 

McFadden v. Benson 527 

McKernan, Woodhum Saryen 

Wheel Co. ▼ 48 



N 



Newkirk, The Indianapolis ft 

Lanesyille Gravel Boad Co. ▼ .168 
Norris, Greenstreet ▼ 419 



O 



O'Brien et aL t. (VBrein et al.....558 



Paetz V. Dain ..148 

Potter, Sturm V 124 

Q 
Quwack T. Cruse et al 820 

B 

Railroads, Hurley t 295 

Randall etal.. Merchants' National 

Bank v ..166 

Ratcliffe et al., Farman y »145 

Reid V. Brown et al 812 

•Rich etal., Dessarv « 872 

Risley v. The Indianapolis, Bloom- 

ington & Western R. R. 572 

Rogers v. Voss et al 876 

Roney v. Wood et al.. 878 

Root V. Erdelmeyer 99 

Root. Bohring v..... 29 

Russell et al., Harrison v ..891 

8 

Schaw V. Dietrichs et al.... 158 

Schmidt, Seitz v ..487 

Scudder v. The Indianapolis A 

Peru R. W. Co 481 

Seitz V Schmidt ..487 

Shortridge et al., Clawson ▼ 282 

Stgler V. Coder et al ..854 

Smith V. Fletcher 84 

Smith et at , Irwin et al v 544 

Smith V. The Indianapolis, Peru 

& Chicago R. W. Co 88 

Smock V. Henderson.. 241 

Smock et al.. Maguire ▼ 92 

'Sneaghan et al. V Briggset al... 75 

Sohl V. Geisendorff et al 60 

Spaugh, Kirtz t.. 267 

Splahn Gillespie et sLt 228 

SUgg, Hill V 408 

Suto V. Kimhall 174 

SUte V. McCarty ...205 

StilU V. Tutewiler, Treasurer, &0.507 



0A8E8 REPORTED. 



VU 



Stout T. The Indianapolis A St. 

Louis R. R. Co 80 

Strohmier t. Stumph 804 

Btumph et al., Bauer ▼ 614 

Stumph ▼. Bigham •••^.••867 

Stumph et al~ Hillman ▼« 285 

Slumph, Strohmier y 804 

Sturm ▼. Potter 124 

Sullivan v. Oanan 682 

Sylvester v. Macauley, Mayor, 

Ac - 19 



The Augusta Gravel Boad Oo^ 
Carter v 14 

The Board of County Commis- 
sioners of Marion Co^ The In- 
dianapolis Hotel Co. V 84 

The Board of Commissioners of 
Marion Co., The Terre Haute, 
Ac^ B. R. Co. ▼ 880 

The City of Indianapolis, Ken- 
yon ▼ 129 

The Germanta Building, Ac, As 
sociatton v. Marot ..541 

The Indianapolis Hotel Co. v. The 
Board of County Commission- 
ers of Marion County 84 

The Indianapolis A Lanesville 
Gravel Road ▼. Newkirlc 168 

The Indianapolis. Bloomington A 
W. R R. Co., Risley ▼.. 572 

The Indianapolis, Peru & Chicago 



R. W. Co., Smith t 



88 



The Indianapolis A Peru R. W. - 
Co. Ssudder v 481 

The Indianapolis & St. Louis R. 
R. Co., Stout V 80 



The Little White Lick Gravel 
Road Co. et al., Williams et al. 

V 7 

The Terre Haute, Ac, R. R. Co. 
V. The Board of Commissioners 

of Marion Co.. 880 

Thurston v. Boardman et al 488 

Tinsman et al., Hu^gins v 291 

Tutewiler, Treas., Ac, Stilts V....507 



U 



•Urbain, Deford v....... 67 



Vandusen, Eendleberger t... 289 

VoBs et aL, Rogers v 876 



W 



Wadkins, Evans v ^ 114 

Wesley et al., Milford v 119 

Wild man, Dnvidson v 427 

Wiiliamsetal v The Little White 

Lick Gravel Road Co et al.. ... 7 
Wood burn Sarven Wheel Co. v. 

McKernan 48 

Wood et al , Roney v 878 



Yandes et al., Hasselman et al. 
V 276 



Zeigler et al., Fletcher v 408 



* Reversed on appeal to Supreme Court. 



AUTHORITIES CITED IN THE OPINIONS 



OF THIS VOLUME. 



Addlemtn v. Brwin et al^ adm'n, 6 Ind^ 494 14 

Allifion V. Hubbell, 17 Ind^ 669 ^ 117 

Amoakftag Co. ▼. Sprean, 2 Sanford Superior Ct. Bep., 699 65 

Anderson, Ex^ ▼. Long, 10 Serg. dt Rawle, 66 896 

Archer v. Heiman et al., 21 Ind., 29 ^ 170 

Attorney General v. Bowman, 2 Boaanqatt A Puller's, 682, n 894 

Ayery ▼. Bowden, 6 Ellis A B^ 714 826 

Ayer's Case, 26 Beavan's Bep.,616M....~ ^ 260 



Baboock v. Lamb et al., 1 Cowen,288 ^ 14, 18 

Bacon ▼.The City of Boston, 8 Cu8hing,174 136 

Bagshaw ▼. Seymour, 98 Eng. C. L., 878 260 

Bailey v. Bidwell, 18 Meeson ft Welsby, 78 886 

Baker (Gov.) v. Kirk, 88 Ind., 617 882 

Baker v. Kistler, 18 Ind^ 68 ^ 67 

Ballou V. Talbot, 18 Mass., 461 25 

Ball's Case, 22 Beavan's Rep, 86 260 

Bank of Hamilton v. Dudley, 2 Peters, 626 

Bargate ▼. Shortridge, 81 E. L. & Eq., 44 262 

Barnhart v. Cissna, 42 Ind., 477.... 666 

Barwick v. Bulea, 2 C. B. (N. S.) 668 826 

Bates V. DeHaven, 10 Ind., 319, 822 ^.^, 649 

Batty V. Dixbury, 24 Vt, 166 136 

Bensemer et al. ▼. Mace et al., 18 Ind., 27 «...... 222 

Beard v. City of Brooklyn, 31 Barbour, 148 ......... 

Beauchamp ▼. Leagan, 14 Ind., 401 , 294 

Bellefontaine Railroad Co. v. Hunter, adm'r, 48 Ind., 886 82, 489 

Benninghoof ▼. Finney et al , 22 Ind., 101 166 

Berry v. Bates, 2 Blackf., 118.. 298 

Best V. Ellsworth, 4 Ind., 261 415 



AUTHORITIES CITED. IX 

Biseell v. Michigan Southern R. R. Co., 22 N. Y^ 258 ^^ 253 

Black V. Jackson, 17 Ind., 18 440 

Blain v. Bailey, 25 Ind., 165 201, 216 

Bowen v. Lease, 5 Hill, 221 216 

Bowser et al. v. Rendell, 81 Ind., 128 ^ 410 

Bradley v. The Steam Packet Co., 18 Peters, 89 549 

Brooklyn Company y. Maary, 25 Barbour, 416 - 165 

Brown v. Buffalo, Ac., B. B. Co., 22 N. Y., 19 491 

Brown v. Lewis, 5 Hill, 221 201 

Brown et al. v. McKay, 16 Ind., 484 ^ 

Brown ▼. Brown, 84 Barbour, 588 — 98 

Borkham v. Beaver, 17 Ind., 867 869 

Burgess y. Simonson, 45 K. Y. Court of Appeals, 225 818 

Bnrnham t. The City of Boston, 10 Allen, 290 186 

Byrket ▼. Monohon, 7 Blackf., 88 898 

O 

Cameron t. Irwin, 5 Hill, 872 285 

Camp V. The Commonwealth, 2 Met. (Ey.) 17 278 

Campbell ▼. Brackinridge, 8 Blackf., 471.. 86 

Candee v. Lord, 2 N. Y. Court of Appeals, 269 814 

Carter V. Buckner, 3 Blackf., 814 ?78 

Carter v. Crawley, T. Raymond's Rep., 496 475 

Carter v. Edwards,16 Ind., 288 273 

Carter v. The Augusta Gravel Road Co., 9upra 14, 58, 828 

Cazeaux v. Mali et al., 25 Barb., 578 260 

Chandler v. Herrick, 19 John., 129 293 

Chicago City v. Bobbins, 2 Blackf, 418 184 

Chilton et al. v. Price et al., 4 Ala., 824 81 

Church V. Drummond, 7 Ind., 17 896 

Cicero Hygiene Draining Co. v. Craighead, 28 Ind., 274 

Cincinnati & Chicago R. R. Co. v. Huncheon et al., 16 Ind., 486 60 

City of Jeffersonville v. Weems et al., 5 Ind., 547 117 

City of Logansport V. Wright, 25 Ind., 518 188 

City of New York v.Purze, 6 Hill, 612 188 

Clark V. Clark, 25 Barbour, 76 ^..... 64 

Clark V. Clark, 47 Barbour, 455 ;. 

Clark V. Dickson, 6 Common Bench Rep. (N. S.) 458 260 

Clark et al. v. Snelling, 1 Ind., 882 298 

Clayton et al. v. Drake et al., 17 Ohio S., 867 ^ ^ 478 

Clere v. Brooke, Plowden, 451 426 

CoaU V Halbrook, 2 Sanford's Ch. Rep , 686 64 

Cochnower v, Cochnower, 27 Ind., 253.. 440 

Coe V. Smith, 4 Ind., 79 860 

Coffin V. Branton, 4 McLean, 516 68 

Colman v. Duke of St. Albans, 8 Yesey, 26.. 418 



X AUTHORITIES CITED. 

Common Coancil y. McLean, 8 Ind.; 828 • 110 

Conant et al. v. Reed et h1^ 1 Ohio 8t^298 252 

Cook ▼. Bhipman, 24 Illinoia, 614 98 

Cox V. Hazard, 7 Blackf^ 408- 416 

Coyner Y. Lynde, 10 Ind , 288- 

Craft V. Day, 7 Beavan, 84 - 68 

Cross Y. Sackett, 2 Busw^ 617- 260 

Crookshank ▼. Kellogg, 8 Blackf , 266 422 

Culbertfion ▼. Milhollin, 22 Ind, 362 - 28 

Culbcrtson y. Townsond, 6 Ind^ 64 640 

Cumroings y. Pfouts, 18 Ind^ 144 118 

Canningham y. Pell, 6 Paige, 606 - 260 

Cushing Y. Qore et al^ 16 Mass., 69 - 82 



PaYenport y. Kuckman et a1^ the Mayor, etc, of N. Y^ 87 N. Y., C68- 188 

PaYis Y. Campbell, 12 Ind., 192 - 118 

Day et al. y. Fallette, 26 Ind^ 42.... 874 

DerouBseaa et al. Y. The United States, 6 Cranch, 807. 118 

DeYlin v. Brady, 88 Barbour, 618 - 98 

Dewey Y. The City of Detroit, 16 Mich., 807- 188 

Dewich y. Chapman, 11 John, 182 ^ 14 to 18 

DeGaellon y. L'Aaigle, 1 Basanquet A Pullers' Rep., 868 76 

DePauw y. The City of l^ew Albany, 22 Ind^204 674 

Doe Y. Daniels, 6 Blackf., 8 .• 888 

Doe Y. Dutton, 2 Ind., 809 62 

Doe Y. Barter, 2 Ind., 262 62 

Doe Y. Barter, 1 Ind., 427.; ^ 61 

Doe, ex dem. Holman, y. Collins, 1 Ind., 24 118 

Doe Y. Roc et al, 4 Blackf., 268.... ^ 247 

Donnell y. The SUte, 2 Ind., 668........ 118 

Dow Y. Qould & Carry Silver Mining Co., 81 Cal., 629..... 626 

Drake Y. Marklo, 21 Ind. 488 ., ^ 410 

Duranty's Case, 26 BeaYana Rep., 278. ••..., 260 



Eastman et al. y. Foster et al., 8 Metcalf, 19....... 

Eddleson y. Vich, 28 Kng. Law A J£q. Rep 65 

Edwards Y. Freeman, 2 Peere Williams' Repa. 485.... 475 

Elwood Y. Deifendorf, 5 Barb 868 

Ernst Y, Hudson River R. R. Co., 85 N. Y., 9.. »••.. 491 

Estep Y. Estep, 28 Ind. 114 • 422 

Evans v. Ashby, 22 Ind. 16 218 

Evansville, Ac, R. R. Co. v. The City of Evansvillo, 16 Ind., 896 807 

Ezparte Wilson, 2 Yesey A Beames* Rep. 262 418 



AUTHORITIES OITEI>. XI 

Farmen A Millen Bank of Milwaakee v. Detroit A Milwaukoe R. R. 

Co^ 17 WiBoonAm, 872 ^ 268 

Feeter ▼. Heath, 11 Wendell, 477 „ 26 

Finh ▼. Bodge, 4 Denio, 811 ^ 464 

Fletcher v. Holmes, 26 Ind^ 468 118 

Fonda v. Sage et al^ 48 N. Y., 178 648 

Ford ▼. The btate, 29 Ind^ 642 187 

Fowell V. Forrest, 2 Saunders, 48 298 

Fowler ▼. Hawkins, 17 Ind^ 211 ^ ^...^ 886 

Fowler v. The ^tna Fire Ins. Co.. 6 Cowen, 676.. 896 

Fox ▼. Reynolds, 24 Ind., 46 

Frenzel et al. v. Miller, 87 Ind, 1 688 

Frisbee et al. ▼. Lindley, Ac, 28 Ind., 611 862 

Frost V. Knight, Law Rep. 7 Exch., Ill « 826 

Fry V. The SUte, ex rel. Auditor of State, 27 Ind., 848 195 

Fuller et al. v. Dame, 18 Pick., 47i 98 

FulU ▼. Wycoff, 26 Ind,, 821 482 

Garrison v. The Mayor et aL of New York, 6 Bosworth, 497 188 

GaUmiller ▼. Lockwood, 28 Mo, 168. 897 

Gifford ▼. Carvill, 29 Cal., 689 266, 260 

Gilev Libby, 86 Barb , 70 481 

Godfrey ▼. Chadwell, 2 Vernon, 601 279 

Gohard y. Bates, 2 Sllis& Blackburns' Rep's, 490 260 

Goings V. Chapman, 18 Ind., 194 

Goodhue v. Palmer, 18 Ind., 467 294 

Gott ▼. Mitchel, 7 Blackf., 270 « 486 

Gough V.St. John, 16 Wend., 646 896 

Gould V. Tancred, 2 Atkyns' Rep., 688 418 

Gower v. Howe, 20 Ind. 896 287 

Graham v. Crocket, 18 Ind., 119 684 

Gray v. Hook, 14 N. Y., 449 98 

Green y. Cheek, 6 Ind., 106 118 

Greenshalgh ▼. Manchester A Birmingham R. W. Co., 8 M. & C, 

784, 799 8-18 

GrifBn y. Southerland, 14 Barb, 466 588 

Grysbrook v. Fox, — i^owden, 277- 474 

GnlleU y. Gullett, 26 Ind., 617 240 



Hadden y. Johnson, 7 Ind., 894 886 

Halbert et al. v. The State, 22 Ind., 126 221 

Halstead v. Brown, 17 Ind., 202. 80 



ZU AUTHORITIES CITED. 

Hancook ▼. Hauard et al., 12 Coshing, 112 221 

Hanna ▼. Board of Gonnty Comminionen, 29 Ind^ 170. 817 

Harbert y Damont et al^ 8 Ind^ 846 298 

flarbisoQ ▼. The Bank of the SUte, 28 Ind^ 188 886 

Barker v. Glidewell et al^ 28 Ind. 219 • 410 

Harlan v. Edwards, 18 Ind, 480 440 

Harlan v. Watson etal^ 42 Ind^ 526 566 

HarlockY. Bamhizer, 80 Ind., 870 ^ 279 

Harper et al. ▼. Miller, et al., 27 Ind., 277 89 

Hart ▼. City of Brooklyn, 86 Barb., 226 » 188 

Harvey v. Towers, 4 E. & L., 581.. 886 

Haose v. Cowing, 1 Lansing, 288 456 

Hays Y. The SUte, 8 Ind., 425 401 

Henderson ▼. Lacon, L. R., 5 Eq. Cases, 249 260 

Herrick ▼. Bunting, 29 Ind., 467 - 858 

Hill et al v. Jameson, 16 Ind. 125 ^ • 98 

Hill V. Smith, 2 Bing.,626 ; 25 

Hillhoose ▼. Chester, 8 Day's (Conn.) R., 169 478 

Hobson Y. Doe, 4 Blackf., 487. 282 

Hochster v. De La'Tour, 2 Ellis & Blackburn, 678 826 

Honeywell y. Helm, 19 Ind., 821 818 

Howell y. Zerbee, 26 Ind., 214 407 

Houghtaling y. Kelderbouse, 2 Barb., 149 896 

Howard v. The First Independent Church of Baltimore, 18 Md., 451. 97 

Howe V. Plainfield, 41 N. H., 185 188 

Hnbler v. Fallen, 9 Ind., 278. ^.^ 57 

Humphreys v. Humphreys, 7 Conn., 116. .*. 897 

Huntington v. Colman, 1 Blackf., 848 ^ 857 

Huntington v. Drake, 24 Ind., 847 -481 

Hunt V. FoUer, 4 Duer,458 886 

Huston V. Roosa, 42 Ind., 886 566 

Hutchen v. Niblo. 4 Blackf., 148 118 



Indianapolis A Cincinnati R. R. Co. v. Case, 15 Ind., 42 401 

Indianapolis A Cincinnati R. R. Co. ▼. Stephens, 28 Ind., 480 401 

Ireland v. Channcey, 4 Ind., 224 415 

Irons et aL y. Woodfill et al., 82 Ind., 40. 298 



Jackson y. Sharpe, Adm'r, 29 Ind., 167 

Jackson t. Tandees, 7 Blackf., 526 - 422 

Jenkins v. Long, 19 Ind., 28 ^ 818 

Jones et al v. Droneberger, 23 Ind., 74 890 

Jones v. The Terre Haute & R. R. R. Co., 29 Barb., 858 • 526 



AUTHORITIES CIT£D. XlII 



Keiser et al. v. Yandes, 42 Ind. 899 666 

Kentetter ▼. Raymond, 10 lAd., 199 » 850 

KentY. LawBon, 12 Ind^ 675 290 

Kent ▼. Shuckard, 22 £ng. Com. Law Bep^ 888 481 

KenUand y. Bissett, 1 Wash. G. C, 144. 897 

Kimmel v. Stoner, 18 Penn.- St. R., 155 260 

King ▼. Pedley, 1 Adolphos & Ellis' Rep., 822 458 

King et al. v. The Patterson A Hudson River B. R. Co., 5 Dutcher, 505. 526 

Kirby ▼. Stadehaker, 15 Ind., 45 ^ 80 

Kiser ▼. Ruddick, 8 Blackf, 882 - 857 

Xj 

Laird ▼. Eichold, 10 Ind., 212- ^ 481 

Lane ▼. Ironmonger, 18 Meeson A Welsby, 886 88 

Langdon v. Boel, 9 Wend., 80 45 

Langhoff, Adm'r, v. The Milwaukee & Prairie I>uChien R. R. Co. et 

al, 19 Wis., 489 - 491 

Laval et al. v. Rowley, 17 Ind., 86 875 

Lawrence v. Long, 18 Ind., 301 ^ 866 

Leary ▼. Langsdale, 85 Ind., 74 • 401 

Lindley V. Cross, 81 Ind., 106 , 407 

Lingerman v. Nave, 81 Ind., 222 858 

Lintner v. Potts, 5 Blackf., 896 421 

Lionberger V. Rouse, 9 Wallace, 468 510 

Litson V. Brown, 26 Ind., 489. 88, 290 

Lomax v. Bailey, 7 Blackf., 599. 850 

Long V. Colbum, 11 Mass., 97 - 25 

Louden v. Birt, 4 Ind., 566 « 858 

Lowe et al. v. Blair et al., 6 Blackf., 282 ^ 298 

Luiranoe et aL v. Luirance, 82 Ind., 198 • ..14, 828 

Lytle V. Lytle et al., 87 Ind., 281 ^ 484 



Habey v. Adams, 8 Bosworth, 446 261 

Major et al. v. McLester; 4 Ind., 591 850 

Malone v. McClain et al., 8 Ind., 532 889 

Mandelbaum v. North American Mining Co., 4 Mich., 465 252 

Maple V. Bumside et al., 22 Ind., 139 568 

March v. The Eastern R. R. Co., 43 N. H., 515. 526 

Mark v. The SUte, 15 Ind., 98 584 

Marshall v. Baltimore & Ohio R. R. Co., 16 Howard, 814 98 

Mason v. Bovet, 1 Denio, 69 72 

Mather v. Scoles, 86 Ind., 1 415 

Maxamv. Wood, 4 Blackf., 297 14 to 18 

Mayne V. Griswold, 3 Sandford, 463. 260 



XIV AUTHORITIES CITED. 

Medder ▼. Hifttt, 14 Ind^ 405 ^ ^ 290 

liendenhall flt al. ▼. Lenwell, 6 Blackf, 125 298 

Hercer ei al. y. Doe, 6 Ind., 80 ^ 218 

Merritt v. Cloghora, 23 Vermont, 177 - 481 

Hills V. SimraondB, 10 Ind., 464 161 

Hiller v. The Board of Commiasionen, Ac., 29 Ind., 75. ...... ...^ 118 

Hillison y. Holmes, 1 Ind., 45 485 

Millington y. Fox, 8 Mylne A Craig's Rep., Chancery 68 

Minor v. Mechanics* Bank of Alexandria, 1 Pet, 46 255 

Mixy. Ellsworth, 5 Ind., 517 415 

Misen y. Peck, 8 Meeson & Welsbj, 481 40 

Moffet et al. y. Winslow, 7 Paige, 124 262 

Montague y. Benedict, 8 Bamewall A Cresswell, 681 89 

Moonej y. Myers, 5 Blackf , 881 405 

Moore, and Barney y. Paine, 12 Wendall, 128 82 

Morbeck y. The SUte, 28 Ind., 86- .... 221 

Morris y. Orayes, 2 Ind , 854 „... 404 

Morris y. Hazlewood, 1 Bosh. (£y.),208 - 896 

Mount y. Weston, 2 Vermont, 668 279 

Mower y. The Inhabitants of Leicester, 9 Mass., 247 188 

Mnnger y. Green, 20 Ind., 88. 407 

Marphy y. Henry, 85 Ind. 442 - 470 

McAroy y. Wright, 25 Ind., 22 88 

McClare et al. y. Secrest, 5 Ind., 81 850 

McCormicky. Digby, 8 Blackf., 99 - 418 

McCi^ary y. Pike, 2 Blackf, 874 247 

McCulloch y. Dawson, 1 Ind., 418 415 

MoDaniel y. Adams, 45 Penn. St, 480 - 478 

McDaniels y. Kobinson, 26 Vermont, 816. 481 

McFerran y. Taylor, 8 Cranch, 281 588 

McOaity y. The Mayor, Ac., of Mew York, 5 Duer, 694 188 

McHenry y. Dai&eld, 7 Blackf., 41 25 

McEinney y. Springer, 8 Ind., 59 « 850 

McVey v. Blair, 7 Ind., 590 278 



Nash y . Gilkeson, 5 Serg. A Bawle, 852... 897 

National Banking Act, Sec 41 508 

Naye y. Naye, 7 Ind., 122 222 

Newbargh Turnpike y. Miller, 5 Johns Ch , 101 222 

Newell y. Downs, 8 Blackf., 528, .• 640 

Newell y. Wheeler, 48 N. Y., 486 — - 548 

New York & Virginia Stock Bank y. Gibson, 5 Duer, 574 886 

Nordyke y Shearon, 12 Ind., 846 - 886 

Northern Central Railway Co. y. The State, 81 Md., 857 

Noryell et al. y. HiUle, 28 Ind., 846 - 867 




AUTHORITIB8 CITBD. XV 

O 

Oiler et al. ▼. Bodkey, 17 Ind , 600 98 

Orr ▼. Baker, 4 Ind., 88 ^ 109 

Owen ▼. Baoatead, 22 U\^ 191 288 



Farish ▼. Wheeler, 22 N. Y., 494 „ ^ ^^^ 268 

Pamiler y, Down, 23 Barb., 468 ^. ^ 46 

Pearle ▼. Bridges, 2 Saunders K, 401, and note 1 ...^ 14 to 16 

Peck ▼. Beckwith, 10 Ohio St R , 497 298 

Pedens, Adm'r, y. King et al , 80 Ind , 181 ^ 16, 58, 828 

Penn ▼. Cox, 10 Ohio Bep, 82 ^ ^^.470,478 

Persona v. McKibhen, 6 Ind^ 261 ^ ^ 860 

Fhelpa ▼. The Farmers A Mechanics^ Bank, 26 Oonn., 269 -~ 626 

Fiatt V. Dawes, 10 Ind., 60 ^ 886 

Pierson et al. v. Doe, 2 Ind., 128... 14 to 18 

Piper ▼. The Oonnersyille, etc. Turnpike Ca, 12 Ind^ 400 

Pitchtfr ▼. Barrows et al., 17 Pickering, 861 171 

Pope ▼. Hall, 14 La. An., 824 - 121 

Potter V. Webb^ 6 Greenl., 14 ^ « - 897 

Potts ▼. Henderson, 2 Ind., 827 .• 26 

PraU V. Andrews, 4 N. Y. 498 896 

Price et aL ▼. Pollock, 42 Ind., 497 666 

Profilet ▼. Hall, 14 La. An., 624 122 



Banb v. Heath, 8 Blackf., 676 ^ 14 to 18 

BatuDurn v. vrbeeier, 29 ind., 0U1..*m«... m« ...... ••.m«...m« ......•.•. ........ 828 

Becd ▼. Shaw, 1 Blackf, 246 ^ _ 298 

Beove et al. ▼. The Mayor of Covington, 2 O. & H., 644. 40 

Beid Y. Haskins, 6 Ellis & B., 968 826 

Bich ▼. Basterfield, 66 Eng. Com. Law, 788..... 468 

Bichmond v. Smith, 16 Eng. Com. Law Bep., 144 481 

Bigsbeey. Bowler, 17 Ind., 167 ^,^ 292 

xH»»or ▼. xMiver, o JsiacjKi., ox...... ....•..••.«....•...•....#...■.•...•.•.. ...... ..... ^oo 

Bobbins v. Chicago City, 4 Wallace, 667 - 181 

Bobinson v. Smith et al., 8 Paige, 221 ... ^ 260 

Bock et al. v. Stinger, 86 Ind., 846 221 

Boss V. Esutes Investment Co., L. B., 8, Eq. C, 122 260 

Boswell ▼. Prior, 12 Mod., 686 468 

Boan V Perry, 8 Caines, 120 896 

Baby v. Buby, 29 Ind., 174 288 

Boahville, Ac, B. B. Co., ▼. McManus^ 4 Ind., 276 886 

S 

Sample ▼. Bowe et al., 24 Ind., 206 287 

Saonders ▼. Heaton et al., 12 Ind., 20 , 98 



XVI AUTHORITIES CITED. 

Schmitz V. Lauferty, 29 Ind., 400 14 to 18 

Seaton v. Benedict, 52 Bingham, 28- 40 

Sexio V. Provigendo, 1 Ch. Appeal Cases, 191 64 

Shane v. Francis, 30 Ind., 92 196 

Shannon et ux. v. Spencer, 1 Blackf^ 526 894 

Shaw V. Binkard, 10 Ind^ 227 294 

Shaw V. Homaday, 8 Benf, 165 369 

Sheldon v. Wright, 1 Selden, 497 ^ 807 

Shepherd v. Elliott, 4 Haddock's Rep^ 254 418 

Shirley V. Shirley, 7 Blackf^ 462 415 

Shook ct al. v. The State, ex rel. Stevens, 6 Ind., 113 194 

Sidner V. Spaugh, 26 Ind., 817 

Simpkins ▼. Oakley, 1 Blackf., 537 549 

SlBtermans v. Field, 9 Gray, 881 336 

Skeen v. Huntington, 25 Ind., 510 - 440 

Sloo ▼. Lea, 18 Ohio, 305 - 171 

Smart ▼. Hunt, 1 Vernon Rep., 418 - 418 

Smets V. Plunket, 1 Strobhart, 872 397 

Smith's Case, L. R, 2 Ch. App., 604 260 

Smith V. Brady, 17 N. Y., 178 848 

Smith ▼. Crigler, 29 Ind., 616 858 

Smith et al. y. Jeffries, 25 Ind., 876 14 to 18 

Smith. et al ▼. Lusher et al., 5 Cowan, 688 171 

Smith V. Richards, 18 Pet., 88 539 

Smith V. Steele, 25 Vt,, 481 - 81 

Smith ▼. The Muncie National Bank, 29 Ind., 158 410 

Smout V. Ilbery, 10 Meeson & Welsby, 1, 9, 10 26 

Snodgrass V. Hunt, 15 Ind., 274 - 290 

Somnrs et al. y. Pumphrey et al., 24 Ind., 281 141 

Sowles V. Harvey, 20 Ind., 217 - 234 

Spaulding et al. v. Baldwin, 81 Ind., 876 436 

Spencer V. The State, 5 Ind., 41 ; 201,216 

SUckhouse v. The City of Lafayette, 26 Ind., 17.. 132 

State, ex rel. Attorney General, y. McOarty, «u;>ra- ^ 206 

State, ex rel. Brown, y. Bailey, 16 Ind^ 46 ^ - 192 

SUyton v. Hulings, 7 Ind^ 144 ^ 118 

Stephens v. Pell, 2 Dowling's Practice Cases, 629 - 76 

Stevens V. Campbell, 21 Ind., 471 - 869 

Stewart's Case, L. R., 1 Ch. App., 574 - 260 

Stilwell V. Chappell, 80 Ind., 72 • 363 

Stockwell V. Byrne, 22 Ind., 6 814 

Stout V. Indianapolis A St. Louis R. R., tupra • 489 

Stroutct al v. Berry, 7 Mass., 885 14 to 18 

Sumner v. Coleman, 20 Ind. 486 813 

Swift V. Edson, 5 Conn., 581 279 




AUTHORITIB8 CITBD. XYU 



T 



Ttfe V. MAdiflon & I. R. R. Oo^ 87 Ind^ 861 490 

Taylor ▼. McClure et 8l., 28 Ind., 89 806 

Thklman et aL ▼. Barboar ei al^ 6 Ind^ 178 298 

Tbayer v. Buffam, 11 Hetcalf; 898 171 

The AugusU A Sayannah B. R. Co. v. McBlmorry, 24 Ga^ 75 491 

The Bank of The State v. The City of New Albany, 11 Ind.,189 ^ 608 

The Board of CommisBionen of Fayette Co. v. Chitwood, 8 Ind^ 604. 86 

The City of Logansport ▼. Wright, 25 Ind., 612 14, 68 

The Danabe A Black Sea Co. v. Xenoa, 18 C. B. (m. b.), 826 826 

The Qoyemor y. Nelson, 6 Ind , 497 ..888 

The Indiana Central R W. Co. v. Bradley et al., 16 Ind., 28 118 

The Joseph Dixon Crucible Co. ?. MeyrOagginhein, 8 Am. L. Times, 288 68 
The President and Directors of the CrawfordsyUle & Wabash R. R. 

Co. ▼. Wright, 6 Ind , 262- 14 to 18 

The President and Trustees of the Town of Connersville y The Bank 

of the State of Indiana, 16 Ind., 106 606 

The State, ex rel. Benton, v. The Mayor of LaPorte, 28 Ind., 248...117, 882 

The State y. Kalb, 14 Ind., 408 629 

The SUte v. The Inhabitants of Graham, 87 Maine, 461 184 

The United States y. Robeson, 9 Peters, 819 848 

The Washington, Alexandria A Cteorgetown Steam Packet Company 

y Sickles et al^ 24 Howard, 888 874 

Thinblely y. Barron, 8 Meeson A Welsby,210 298 

Throgmorton y. Davis, 4 Blackf., 174 886 

Tilly y. Fosset, 17 Am. Law Reg., 402 68 

Toledo, dec, y. Goddard, 25 Ind., 185.. 299, 489 

Townsen y. The Hayre de Grace Bank, 6 Harr. A Johnson, 47. 481 

Trulock y. Robey, 16 Simons' Rep.) 287, 266 418 

Tucker y. Morrill, 1 Allen, 628 886 

Tyler v. Wilkerson, 27 Ind., 460 118 

Tyner y. Stoops, 11 Ind., 22. 868 

T7 
United States y. Pr««»tt, 8 Howard, 678. 221 

Vandyke y. The City of Cincinnati, 1 Disney, 682 188 



Wade y. Rcitz, 18 Ind., 807 861, 406 

Wagoner y. Jermaine, 8 Denio, 806 464 

Walrott y. Yeager et al, 11 Ind.,. 84 860 

Walker y. Stephenson, 2 Rspinasse's Rep., 284 896 

Wallace y. Bassett, 41 Barb., 92 ~ 216 



XTIU AUT1IORITIB8 GITBD. 

Wallis V. Hodton,S Atkyna^iie « 475 

Ward et a1. ▼. Buell, 18 Ind. 104 ^.....^^ 890 

Ward ▼. Heradon, 6 Porter, 882 ^ ^ 897 

Warner et a1. ▼. Blakeman et al., 86 Barb^ 601 « 286 

Webster's Case, li. B^ 2 Eq. Cases, 741 ^ 260 

Wendell v. The Mayor, &c^ of Troy, 89 Barb., 829 186 

Wheatley ▼. Miscal, 6 Ind., 142 • 850 

Whitinger v. Nelson, 29 Ind., 441^ ^ 858 

Wilkins y. Malone, 14 Ind., 158 ^.... 186 

Willard ▼. Newberry, 22 Vt., 458 - 186 

Wilson y. Metcalfe, 1 Btuseirs B^p., 580 ^ 418 

Wood V. Colvin, 2 Hill, 566 284 

Wood y. Mansell et al., 8 Blackf, 125 14 to 18 

Woodard y. Murry, 18 Jobn^ 400.. 585 

Woodraff y. Garner, 27 Ind., 4 » 588 

Worth's Case, 4 Drew, 529 260 

Wright y. Maiden. &o., B. B. Co., 4 Allen, 248 491 

Wright y. McKee, 87 Vt, 161- ^ « 897 

Wright, Auditor, Ac, y. Stilts, 27 Ind., 888......^ 500 

Wynn y. Allard, 5 Watta A Herg't, 524 ^^ ....^ 487 



\ 



RULES 



ADOPTED RY THE 



SUPERIOR COURT 



OF 



MARION COUNTY, INDIANA, 



AT THE MAY TERM, 1871. 



OXNSRAX TKBX. 



1. On the tint day of each regular term, the Jadgee shall meet in Gen- 
eral Term, and distribute the causes on the Qeneral Term Docket, to the 
Special Terms, to he held by each of the Judges; and they may also, at any 
time^ make any re-distrihution that may be proper. 

Z The Oourt in general session, on the first day of each regular term, 
may adjourn the (General* Term from day to day, or fh>m time to time, aa 
flie Court may designate; and the last Monday of each regular term, and 
so murh of that week as may be necessary, shall be devoted to disposing of 
appeals from the Special Terms; and by leave of the Court in General 
Term, appeals may be heard at other times. 

BPXCIAL TXBMB. 

8. The business in Special Terms shall be transacted in three different 
rooms, and one Judge shall be assigned to transact the business in each 
room. Such assignment of Judges shall be made on the first day of each 
regular term. The rooms in which said Special Terms shall be held, shall 
be designated and known as Superior Court Boom No. 1 ; Superior Court 
Boom No. 2; Superior Court Boom No. 8. Whenever the Judge assigned 
to any room is absent, or cannot, for any reason, hear any cause pending in 
his room, either of the other Judges may preside in such room, and hear 
any cause on the docket of that room, and for such purpose, the Judge so 
presiding, shall be considered and held to be assigned to transact the buil- 
neii of that room. 



ZX RULES OP THE SUPERIOR COURT. 

4. On the Tuesday succeeding the first Monday of each regular term, 
each Judge shall open a Special Term of Court in the room to which he 
has hoen assigned, and call the docket from day to day, and transact the 
business of the Special Term. This rule shall not he so construed as to 
prevent each Judge from opening and holding a Special Term on the first 
day of each regular term to try causes, hear and determine motions and 
luch matters as may be legally presented on that day. 

CAUSES AT I88UK. 

6. As soon as the issues are formed in a cause pending in this Court, the 
parties are required to elect whether the cause is to be tried by the Court 
or by a jury; and upon failure for two days after the closing of the issues 
to announce such election to the Court, the parties shall be deemed to have 
elected to try such cause by the Court, and in either case the election shall 
be entered of record in the cause. 

APPSAL8 TO QSKKRAL TKRM8. 

6. When a party appeals Arora Special to General Term, such appeal 
shall not be perfected and shall not operate as a supersedeas of the judg- 
ment until either a bond is filed or the appellant shall file an abstract of 
the record fh>m the Entry Docket, and a written or printed assignment of 
the errors or points relied upon for the reversal of the cause; and the 
Clerk shall not enter appeal cases on the Appeal Docket until such abstract 
of the record, and such statement of the errors or points relied upon for 
reversal, are filed. This rule shall apply to cross errors. 

7. If no such statement and abstract, as are provided for in Rule No. 6^ 
are filed on or before the second term after the appeal is taken, the appeal 
shall be deemed abandoned. 

OLSRK. 

8. It shall be the duty of the Clerk to be in attendance on the Court, 
In person or by deputy, promptly at the hour of meeting, and remain in 
attendance during the sessions of the Court. 

9. The Clerk shall keep an Entry Docket in his ofilce, in which all suits 
shall be entered at the time and in the order in which they are brought — 
the suits to be numbered in their order as filed; the docket to show the ftiU 
names of all parties and the date of filing of each suit; the kind and date 
of process issued, and all proceedings had by the Court subsequently 
therein. 

10. The Clerk shall keep an Issue Docket, and prepare a Court Docket 
for the Judge, for each room, upon which he shall enter all causes which 
have been assigned at Cteneral Term to such room — such dockets to be 
prepared in time for business at Special Terms. 

11. The Clerk shall keep an Order Book, in which he shall record at 
large all proceedings of the Court in General Term. The Qlerk shall also 



RULES OF THE SUPERIOR COURT. ZXl 

keep an Order Book for each room, in which he shall enter at large all mo- 
tions, orders, defaults, judgments, decrees, and other proceedings at Special 
Term, in the respective rooms. 

12. The names of the parties must bo entered on the Issue Docket, and 
on the minutes, without abbreviation ; but after naming three on.each side, 
others may be designated by the words, **and others," except in final 
entries. 

18. The Clerk shall keep Judgment Dockets, in which he shall enter all 
judgments rendered in General or Special Terms, according to their date, 
in the manner provided for by law for docketing judgments in the Circuit 
Court. Said entries shall also show the number of the case on the Entry 
Docket 

14. The Clerk shall also keep the necessary Execution Dockets, Fee 
Books, and Complete Records, in the manner provided by law for such 
dockets and records in the Circuit Court. 

15. The Clerk shall furnish, at the expense of the county, for the use of 
attorneys, at each regular term, printed dockets containing all pending 
causes filed ten days before the term. 

BHUIIFT AND BAILITT. 

16. The Sheriff, in person or by deputy, or the Bailiff appointed by the 
Court, shall be present promptly at the hour of meeting, and remain in 
attendance during all the sessions of the Court. It shall be his duty to 
preserve silence and order in the court room, and promptly report to the 
Court the names of any and all persons who, after his request, shall fail or 
refuse to comply with the same. 

17. The Sheriff's docket must be at all times in court, and must show 
the causes and their numbers, the date of every service of process, and the 
names of witnesses, designating those who have been served, and those not 
found. 

ATT0RNET8. 

18. Attorneys of other courts will be admitted to practice on motion by 
an Attorney of the Court. Other persons will be admitted on such motion 
made in writing, supported by an affidavit showing that the applicant is a 
voter of the State of Indiana, and a person of good moral character, which 
motion must be seconded by another Attorney of the court, vouching for 
the good moral character of the applicant. Upon the admission of any 
Attorney, his name, with the date of his admission, the names of the Attor- 
ney on whose motion he is admitted, and of the Attorney vouching for his 
character, shall be entered on the Order Book by the Clerk. 

19. Attorneys sworn in either General or Special Term, shall be per- 
mitted to practice in General or Special Terms without being re-sworn. 




XXU RULES OP TAB SUPERIOR COURT. 

20. An Attorney will not be required to produce and prove his author- 
ity for appearance, except upon notice and motion, supported by affidavit 
showing reasonable cause therefor. This shall be the practice on all mo- 
tions against Attorneys relative to their official duties. 

21. No appearance by Attorney in actions for divorce, where personal 
service of process has not been mode, will be recognized, unless written 
consent of the party is filed, and the execution thereof shown by satisfac- 
tory evidence. 

22. No motion of an Attorney will be recognized unless it is made in 
an audible voice by the Attorney, in his place, and within hearing of other 
members of the Bar. 

28. Whenever Attorneys shall, on or before the first day of any regular 
term, enter their names for any defendants, specifying which ones, in the 
Bntry Docket, that, shall be deemed an appearance for such defendants, and 
on the calling of such case, in Special Term, a rule shall be taken against 
such defendants to answer, instead of a default 

24. But one Attorney on each side can examine or cross-examine the 
0Une witness. 

MOnOKS. 

25. After the minutes are read the Bar will be called for motions, except 
when a trial is in progress. Motions may also be made in any cause when 
called in its order. But one Attorney will be heard for a motion, one 
against it, and the mover in reply, except by leave of conrt. 

26. Motions for new trials, in arrest of judgment, to strike out, or reject 
pleadings, or parts of depositions, must be in writing, must state the reason, 
and must be properly filed. The party moving b^ins and closes the argu- 
ment. 

27. When a motion requires notice, and the time is not otherwise fixed, 
one day's notice is sufficient, in term time, in a cause upon the docket. 
Notice of motion must be in writing, and must state briefly on what the 
motion will be founded. If founded on facts not admitted, or not apparent, 
the facts must be shown by affidavit Where a party is present in court in 
person, or by Attorney, no written notice of motion shall be necessary. 

28. Under section 805 of the practice act, if the possession of the paper 
or document be admitted or apparent, the motion for order to produce it 
may be upon notice alone; otherwise, it must be upon affidavit showing 
the possession, and upon proof of service of notice. 

29. A motion to be made a party to a pending suit under siections 18 
and 22 of the practice act, most be apon petition, under oath, showing 
cause, and upon notice. 

80l All motions as to taxation of oosti must be in writing,.and sped- 



RULES OP THE SUPERIOR COURT. XXIU 

ically set forth the ntmona, and the proposed mode of taxing the lame, and 
upon notice. 

81. The ooart will at any time before trial, on raggettion of the Clerk, 
require a non-reaident plaintiff to file an undertaking for costt. The de- 
liBndant may, at any time, move for secority for coeta. The non-residence, 
unlefls apparent or admitted, most be shown by affidavit. 

82. A motion to reject a sham defense moft be supported by affldaTit, 
and be upon notice, unless in answer to interrogatories, or otherwise the 
defendant admits he has no defense, or unless he fails to answer interroga- 
tories in response to a role. The motion will not be granted if the defend- 
ant files an affidavit that his defense is true. 

88. All motions and i4>plioations for a change of venue must be made 
and filed one day prior to the day on which the cause is called for trial, or 
within one day after the issoes are closed. 

COHTIirUAHORB. 

84. After a caose is called for trial, time will not be given to prepare an 
affidavit for continuance for any caose known to the party, or his Attorney, 
prior to the call of the caose. 

86. When time has been given to prepare an affidavit for continoance, 
and the affidavit is not made, or, if made, is held insufficient^ the adverse 
party may, at his option, insist on a trial, or a continoance at the costs of 
the party to whom time has been given. 

86. When a caose has remained upon the docket for the two preceding 
terms of court (except proceedings in partition, or when awaiting reports 
of commissioners or receivers,) it shall only be continued upon motion and 
affidavit filed, showing good caose for continuance. 

87. There can be no argument upon a motion to continue, and no con- 
tradictory or sopplemental affidavit can be considered. 

MiaOXLLiJrROUB. 

88. All books and records shall be plainly marked and numbered so as 
to plainly indicate to what Courts Term and Boom, they respectively 
belong. 

89. Parties to suits pending in this court may take, and by this rule are 
granted leave to take, depositions during term time, to be read in evidence 
on the trials of said causes, upon gpving the opposite parties such notice of 
the time and place of taking the same, as is now required for taking depo- 
ntions in vacation. 

40. Whenever a cause shall be filed during the term in which any 
immediate action is required to be had by the court, said cause shall be at 
once assigned to ihe room to which, in its regular order, it should be 



XXIV RULES OP THE SUPERIOR COURT. 

assigned ; and the Clerk shall place the same apon the Court Docket of the 
room to which such cause has been assigned. 

41. Admissions or agreements about the proceedings in a cause will not 
be enforced, or the time of the court permitted to be used in discussing 
them, unless in writing or made of record, or in presence of the court 

42 No bill of exceptions containing the evidence in the cause will be 
signed or examined by the Judge, unless it is first exhibited to the opposing 
counsel for examination. 

48. If any person shall ask the Sheriff or a bailiff to place him upon a 
jury, it shall be considered a contempt of court, on the part of the Sheriff 
or bailiff, if he shall put such person on the jury. 



Superior Court Reports 

IN GENERAL TERM, 1871. 



John C. BALmviN, Appellee, v. George Bicrsdorfer, et 

AL., Appellants. 

Appealed from Blair, Judge. 

Assault and Battery — Aiding and Abetting — Conspiracy/ — 

New Trial 

Liability for attmilt, extends not only to personf committing the act, but as 
well to tbose who are presect, and encourage either its commission, or 
its continnance. 

Presence at the commission of an offense, and encouragement either by 
words, signs, or gestures, or being sufficiently near, in pursuance of an 
agreement to assist, is aiding and abetting in the commission of the 
wrongful act. 

Where the evidence discloses the presence of others in a situation to render 
aid, the jury may determine whether such persons were not there for 
the purpose connected with the assault, and from such circumstances 
and facts, they may properly infer the formation of a conspiracy for its 
commission. 

A new trial will not be granted because of newly discovered evidence, where 
it is eumulatipe, or to impeach a witness; nor for newly discovered 
evidence, not cumulative, if such evidence would not probably produce 
a different result on a new trial ; nor where in support of motion for 
new trial, is shown a manifest lack of diligence in obtaining the 
evidence upon which the motion is based. 

James E. Heller and W. W. Leathers^ for appellants. 
Test^ Burns Sf Wright^ for appellee. 



SUPERIOR COURT REPORTS. 



ia 9, B«indorfer et aL 




Rand, J. — This was a suit by John C. Baldwin against 
Charles Wridt and six others for an alleged assault and 
battery upon him. 

The case was tried at Special Term, and there was a 
verdict and judgment over motion for new trial, against all 
the defendants (except Hugh, as to whom plaintiff dismissed) 
for 81,000, and the defendants Biersdorfer, Bruner and 
Koerner appeal to Greneral Term, and seek a reversal of the 
judgment against them. 

The appellants urge two grounds for a reversal of the 
cause — 

1. That the Court erred in its charge to the jury. 

2. That the verdict is contrary to the evidence. 

3. And Biersdorfer and Koerner further urge that a new 
trial should have been granted them on the grounds of newly 
discovered evidence. 

The evidence is in the record, and proper exceptions were 
taken at the time. 

First — Did the Court err in its charge to the jury? 
The charge complained of is as follows : 

1. If you find from the evidence that any ono or more of 
the defendants assaulted the plaintiff, and by beating, striking 
or kicking him, inflicted any injury upon his person, the 
plaintiff will be entitled to recover ; and if you find that the 
plaintiff was assaulted and injured by any one or more of 
the defendants, and others of the defendants were present, 
aiding or abetting in the commission of the assault, or its 
continuance after it had been commenced, the plaintifi will 
be entitled to recover against the person so engaged in the 
assault, as well as against those so aiding and abetting. 

2. By the terms aiding and abetting is meant those who 
are present at the commission of the injury, and who, by 
words, signs or gestures encouraged the perpetration of the 
wrongful act ; or who assbt and co-operate in the commission 

the same ; or being present or near at hand in pursuance 



IN GENERAL TERM, 1871. 



Baldwin v. Bieridorfer et al. 



of a previous agreement with the person or persons making 
the assault, ready to assist in the commission of the wrong- 
ful act, if the same should become necessary. 

It is admitted in argument that the above charge is a 
correct exposition of the law in a proper case, 'but it is urged 
that there was no proof of a conspiracy, and that hence the 
charge misled the jury. 

We have carefully examined the evidence, and whilst we 
find no positive evidence of a conspiracy, yet there were facts 
and circumstances proven before the jury, from which they 
might properly infer such a conspiracy; and we conclude 
there was no error in the charge. 

Second — Is the verdict of the jury contrary to the evidence? 

There was evidence before the jury tending to show that 
each of the appellants participated in the assault upon plain- 
tiff, and whilst we find evidence tending to the contrary, 
there was no such want of evidence to sustain the verdict as 
to call upon us to reverse the case# The facts were properly 
submitted to the jury, and according to well established 
principles we should not interfere with the verdict 

Third — Did the Court err in overruling the motion for a 
new trial, as to Biersdorfer, and Koerner, because of newly 
discovered evidence ? 

It is a well settled principle of law, that a new trial should 
not be granted because of newly discovered evidence, when 
it is cumtdaiive^ or to impeach a witness, nor for newly 
discovered evidence, not cumulative^ if such evidence would 
not produce a different result on a new trial. 

All the affidavits on the part of Koerner, and all but three 
on the part of Biersdorfer are-merely cumulative^ and there- 
fore no new trial should be granted on account of such newly 
discovered cumulative evidence. See Fox v. Reynoldsy 24 
Ind., 46, and Jackson v. Sharpe Adm% 29 Ind., 167. 

Biersdorfer on the trial attempted to prove an alibij and hii5 
newly discovered cumulative evidence is for the purpose of 



SUPERIOR COURT REPORTS. 



Baldwin «. Biendorfer et al. 



more clearly proving the alU?L The affidavit of one Myers is 
filed, who says that he was in the employ of Biersdorfer, in 
his saloon, on the 31st of January, 1871, and that Biersdorfer 
was with him from 5 o'clock p. m. until 11 o'clock p. m. of 
that day. If -Biersdorfer in good faith relied upon an alibi^ 
it seems to us that the very first thing he would have done 
on the trial would have been to have introduced the witness 
he knew was engaged with him in the saloon during the 
difficulty in which he was sought to be implicated, and who 
could have established his defence. He knew before the 
trial that they were employed together, and that Myers could 
prove his alibij if such was the fact, and did not need to wait 
until Myers should communicate the information to him. It 
throws a suspicion over his defence. Such work of dilligence 
should not be encouraged, and if Myers' evidence was not 
cumulative^ there is such a manifest lack of diligence that a 
new trial should not be granted for that reason. 

It is urged for Biersdorfer, that the affidavits of Enos B. 
Chives, Thomas F. Brown and H. S. Stumph are not entirely 
cumulative. 

The portion of Chives' affidavit relied upon as not cumu- 
lative^ is as follows.: << That plaintiff replied that the 
defendant, George Biersdorfer, was good — that he was worth 
about $3,000, and that he would have to be responsible for 
the balance, meaning the other defendants in said suit: 
that he, said plaintiff, had nothing against said defendant 
Biersdorfer." 

Brown swears, ^' Said plaintiff further said that said Biers- 
dorfer had about $3,000 in property, and he would hold him 
for that" " Stumph swears that plaintiff told him that he 
had nothing against said Biersdorfer." 

Now it seems from these affidavits that these statements 
were made after plaintiff had sued Biersdorfer as one of the 
parties who made the assault upon him. What did plaintiff 
mean when he said he had nothing against Biersdorfer? 



IN GENERAL TERM, 1871. 



Baldwin «. Biersdorfer et al. 



Did he mean he had no cause of action against Biersdorfer ? 
Or did he mean he had no malice, or ill will against him ? 
K he meant the former, then we admit the evidence would 
be very important, but if the latter, it would hardly be worth 
consideration. 

He had sued Biersdorfer, and said he was relying on his 
solvency to make any judgment he might recover against 
defendants, and it would be unreasonable to construe his 
language that he had no cause of action against Biersdorfer ; 
and without that construction it is unimportant 

The further statement that Biersdorfer was worth $3,000, 
and he would have to be responsible for the other defendants, 
is not of such importance as to justify the Court in believing 
that it would give such preponderance in favor of Biersdorfer 
as that a new trial would result in his favor. He simply 
stated a correct proposition of law, if Biersdorfer was 
guilty, and his statement is not entitled to such legal 
consequences. 

The judgment of the Special Term is affirmed. 



NoTB. — If a conspiracy be proTed, and a presence, in a situation to render 
aid, it is a le^fal presumption that such presence was with a yiew to render 
aid, and it lies on the party to rebut it by showing that he was there for a 
purpose unconnected with the conspiracy. 9 PUk.f 496. See also 1 Or. 

a a, 164. 

The jury may consider from the eyidence whether the defendant was 
engaged in the alleged conspiracy, and had combined with others for the 
same illegal purpose. 10 Piek.^ 497, and see Roicoe Crim, Bv., Qlh Am. 
Ed.j Note 1, an page 88. 

Contra in felony^ where it is necessary, in order to make him an aider 
or abettor, that he should do, or say something showing his consent to the 
felonious purpose, or contributing to its execution. 9 North C, 440; Foeter 
Cr. Law, 850 ; 1 Hale, 439, 616. 

One who incites others to commit an assault and battery is guilty, and 
may be punished as a principal if the offense be actually committed, though 
he did not otherwise participate in it. 1 Bretard^ 397. See also 1 Leading 
Crim. Coiest 149, Note. 



SUPERIOR COURT REPORTS. 



Baldwin v. Bieradorfer et al. 



Where sereral penoM are in company together, engaged in one common 
purpose, lawful or unlawfnl, and one of them, without tke hMwledft or eon- 
%eni of the others, commits an offense, the others will not be iuTolred in his 
guilt, unless the act done was in some manner in furtherance of the common 
intention— J?o«c«« Orim, Et,^ 6<A Am. Ed, 164, and autkoritie* eiied^hni if in 
pursuance of a common design, each takes the part assigned him, all are 
oquallj guilty. 1 Rtus. »n Cr.^ 8(A Am. Ed., 27, asud case* died. 

As to how far an aider and abettor must be prestmt al the commission of 
the crime, see Eiat.^ on Or., Bih Am. Ed., 608 ei tef. 



When sereral defendants are tried al the same time for a misdemeanor, 
an^ some are acquitted and others conTicted, the Court may grant a new 
trial as to those convicted, if they think the couTiction improper. 6 T. J?., 
619; 5 A C. X. E., — . 

The party seeking a new trial on the ground of newly discof ered CTidence 
must show tliat the eyidence is not merely cnmulatiTe : that it was discov- 
ered after the trial : that there was no want of diligence to procure ths 
same. 10 /luf., 3. 

When evidence is merely cnmmlative a new trM will not be granted. 5 
Ind, 250; 6 /nJ^ 474. 

Newly discovered evidence, to warrant a new frialf mast be such as could 
not have been obtained on the trial had by reasonable diligence, and must 
not be merely cumulative. State ex rel Drulmter v, Clarh^ 16 Ind., 97, 102. 

A new trial is seldom, if ever, granted on account of newly discovered 
evidence, for the purpose of impeaching the character of a witness. 6 
Blaek/., 496; 2 Ind, 608; 4 Ind., 492; 22 Ind., 166; 29 Ind., 167. 

A new trial will not be granted for newly discovered evidence, where^ 
with due diligence, tho party might previously have had the benefit of the 
evidence. 1 Blaek/.f 367; 6 Blaekf., 496; 2 Ind., 117; 4 Ind., 540; 10 Ind^ 
451 ; 11 Tnd., 238, 541 ; 13 Ind, 357 ; 23 Ind.^ 471. 

See Billiard on Eew Trials 



IN SPECIAL TERBf, 1871. 



WiUiuu and Another •. Littla White Liek Ormvel Bead CompMj. 



IN SPECIAL TERM. 



Joseph Williams and George W. Stout v.-The Little 

White Lick Gravel Road Company and Franz 

Erdelmeyer, County Treasurer. 

Before NswooiiB, Jadge. Oo % motion for an Injonction to restrain the eol- 
lectioB of aieesemeDt made for oonitmction of GraTel Boad. 

Appraisers — Majority may act. 

Where one of three appraiser! appointed to aeiOM the benefiti accming to 
the ownen of land, hy the conttmction of a graTel road, faili to accept 
hii appointment as snch, hi« failure or refoial does not disqualify the 
remaining two from actiog and making such assessments, which are 
Talid. 

Assessment — When valid — Assessor — Vacancy^ how filled. 

An assessment hj a msjoritj of the viewers is as effectual as if made bj 
all of them. The appointment of a Special Assessor to fill a yacancy is 
discretionary with the Commissioners. 

State Property — Not mbjeet to <ute9»ment for local i m pro9e m $nL 

State JVoperty — Sale of^ hy Coiunty Treaaurerf unautkoriud. 

Though the statute requires that the Assessor shall ** proceed to view all the 
lands within one and one-half miles of each of such proposed roads, or 
either end of the same,*' * * *' to make a list of said lands, and assess 
the amount of benefits that will result to each tract.'' * * 

Held: That notwithstanding the general terms of the act, land belonging to 
the State was not intended to be subjected to assessment for the benefit 
of a local improvement, and that the act itself is incapable of enforce- 
ment against State property. 

Held: That the County Treasurer can not seize and sell the property of the 
State in the absence of any statute authorizing such a proceeding. 

Laches — Remedy for relief, when lost. 

If a party against whom such an assessment has been made, knowing his 
rights, does not promptly seek his remedy, but allows the company to 
incur material expenses, and to enter into engagements difficult to be 
discharged, he will lose bis right to an interposition of equity. 



8 SUPERIOR COURT REPORTS. 

Willimms and Another v. Little White Lick Gravel Boad Company. 

Injunction — Who entitled to. 

A party asking for an injunction mast show some wrong about to be done 
him. He can not inroke the aid of equity by showing damage to one 
not a party to the proceedings. 

Dye Sf Harris^ for plaintiffs. 
Taylors Sf Duncans^ for defendants. 

The plaintiffs pray an injunction against the collection of 
an assessment on their lands for the benefit of the Gravel 
Road Company, defendant, under the act of May 14, 1869. 

Section 1, of that Act, provides that a gravel road company, 
having a valid and solvent subscription of at least three- 
fifths of the estimated cost of the construction of its road, 
&c., may petition the Board of County Commissioners of 
the proper County to have assessed the amount of benefits to 
each tract of land within one and one-half miles of such road, 
on either side thereof, and within a like distance of either 
end thereof. 

Section 2, makes it the duty of the Commissioners to 
appoint three freeholders of the County, one from each Com- 
missioner's district, ^'who shall be termed assessors of 
benefits to lands under this law/' and whose duty it is made, 
upon receiving notice from the County Auditor, to make all 
assessments under the act ; '' Provided^ that if either of the 
assessors should be of kin to the owner of any such land, or 
should be interested in any euch assessment, the County 
Commissioners may appoint a disinterested freeholder of his 
district to act in his stead ; or if no such appointment shall 
have been made, it shall then be the duty of the two disin- 
terested appraisers to make said assessment." 

In this case, Samuel Bumford, the substituted assessor, 
was notified of his appointment, and of the order of the 
Commissioners to make the assessment along defendant's 
road, but he failed to appear, or to take the oath prescribed 
in the third section of the Act, and the remaining assessors 



IN SPECIAL TERM, 1871. 



Williams and Another v. Little White Lick Grarel Road Company. 

proceeded to view the lands and assess the benefits accruing 
to the owners from the construction of the road. 

The plaintifis claim that the assessment is void because 
made by two only of the three assessors appointed. 

The statute makes it discretionary with the Commis- 
sioners to appoint a special assessor in case one of the three 
regular assessors is disqualified to act Having done so, did 
his failure to accept disqualify the other two from making 
the assessment? I think not. His non-acceptance left the 
place vacant, and the case then stood as if the discretion to 
appoint the special assessor had not been exercised. 

But if such result did not follow from the failure of Rum- 
ford to accept and qualify, the other appraisers were 
competent to act, by virtue of the second clause of Sec. 1, 
of the Act in relation to the construction of statutes^ 
approved June 18, 1852, which provides that : ^< Words 
importing joint authority to three or more persons shall be 
construed as authority to a majority of such persons, unless 
otherwise declared in the act giving such authority." 2 G. 
Sr H^ 337. The meaning of this section is that a majority 
may act, unless the law conferring the authority expressly^ 
or by necessary implication, requires the concurrence of all. 
In Piper v. The ConnersviUe^ <S*c., Turnpike Company^ 12 
Ind., 400, the Supreme Court held that the action of a 
majority of the viewers appointed to assess the damages of 
a land owner, in consequence of the construction of a 
turnpike through his premises, was valid. 

The statute governing that case required the Circuit Court 
to appoint three disinterested viewers to assess the damages 
of the owners of the land, whose duty it should be to report 
to the Court the amount of damages sustained, if any. 
Thefe was no proviso in the act under which they were 
appointed, that less than the whole number might act, but 
the Supreme Court held that by the general statute of 1852, 
above cited, an assessment by a majority of the viewers was 



10 SUPERIOR COURT REPORTS. 

Williams and Another v. Little White Lick Gravel Road Companj. 

as effectual as if made by all of them ; and the same point 
was similarly decided in the Cicero Hygenie Draininff Co. v. 
Craifffiead, 28 Ind^ 274. These cases settle the question 
raised here, against the plaintiffs. 

The complaint further alleges, that the assessment was void 
because certain lands of one Cossell were so imperfectly 
described in the list, and assessment, as to amount to no 
assessment at alL The description given is, ^ Cossell, 
Daniel, pt in s w i sec 6, township 15, range 3 east, 12 
acres, benefitted 827.00." 

The defendants answer, that Cossell has fully approved of 
said assessment by paying the first installment of one-third, 
which was placed on the proper tax duplicate of Marion 
County for the year 1869 ; that he is making no complaint of 
said assessment, but is satisfied therewith. 

I am of opinion that the demurrer to this answer should 
be overruled. The description of this piece of land is 
certainly very indefinite, but the case is not to be treated as 
if it had been omitted from the list entirely. Cossell might 
perhaps successfully resist a suit on a tax title based on the 
sale of his land on such a defective description ; but if he is 
satisfied, and is paying his assessments as they fall due, I see 
no equitable ground on which the plaintiffs can complain of 
it, or any right on their part to make an objection for him 
that he declines to make for himself. The ground on which 
an injunction may be granted is, that some wrong is about 
to be done to the party asking the injunction. It is an 
appeal to equity to protect the interests, or to redress the 
wrongs of the complainant, and not of a stranger to the suit. 

The complainant further alleges that the assessment of 
benefits, &&, was and is void because certain lands were 
omitted entirely in the list and assessment, that lay within 
one and one-half miles of defendants road. As to 100 acres 
of said lands, defendants answer that they were the property 
of the State of Indiana, being the same lands on which the 



IN SPECIAL TERM, 1871. U 

WiUiami and Another v. Little White Lick Grarel Road Companj. 

Hospital for the Insane has been established and is main- 
tained. To thb answer the plaintiflb demur. 

The language of the statute is that the assessors shall 
^^ proceed to view all the lands within one and one-half miles 
of each of such proposed roads, or either end of the same, 
within their county ; to make a list of said lands and assess 
the amount of benefit that will result to each tract from the 
proper construction and maintenance of the proposed road, 
&C." Thb provision is, by itself, broad enough to include 
lands of the State, but it is clear to my mind that notwith- 
standing the general terms of the act, land belonging to the 
State was not intended to be subjected to assessment for the 
benefit of a local work, and that the act itself is incapable of 
enforcement against State property. 

The property of the State is by law exempt from taxation, 
(Acts 1861, page 154). But the gravel road law of 1869, 
Section 4, provides that the assessments made thereunder 
shall be a lien upon the land assessed with benefits, and that 
the assessment shall be collected by the Ck>unty Treasurer, 
at the time, and in the manner he collects other taxes ; and 
for this purpose the Ck>unty Auditor is directed to put upon 
the tax duplicate the amount assessed each year upon the 
several tracts of land so found to be benefitted by the 
construction of the road. 

The process to be pursued by the Treasurer, in case the 
assessments are not paid within the prescribed tilne, is to 
levy on the personal property of the delinquent owner, as in 
other cases of unpaid taxes; or in default of personal 
property, then to sell the lands assessed ; but a County 
Treasurer can not sieze, and sell the property of the State in 
the absence of a statute directly authorizing such proceeding, 
and there is no such statute. 

But there is another reason equally conclusive against the 
theory that the lands of the State should have been assessed. 
The 6th section of the Act makes the parties who have been 



12 SUPERIOR COURT REPORTS. 

Williams and Another v. Little White Lick Gravel Road Ck)mpan7. 

assessed for benefits, stockholders in the road, and on pay- 
ment of their assessments, certificates of stock are to be 
issued to them for the amount paid. If the lands of the 
State can be assessed, the State, on payment of the assess- 
ment become, ipso facto, a stockholder in the turnpike for the 
benefit of which her property has been so assessed. But she 
can not be such stockholder, because the Constitution 
expressly declares that the State shall not become a stock- 
holder in any corporation, or association. Sec. 12, Art XL 

This Act, therefore, must be construed as if it contained 
a proviso that no lands owned by the State should be 
assessed on account of benefits supposed to result from the 
construction of th/s road. 

The defendants, for answer to the whole complaint, and 
by way of estoppel, say, that after said assessments were 
made, with a full knowledge thereof, and of all the alleged 
defects in the assessment as set forth in their complaint, 
and of which defects the Gravel Road Company had no 
notice or knowledge, the plaintiffs stood by and saw the 
company expend several thousand dollars in the construction 
of its road, through and beyond the farms of plaintiffs ; that 
on the faith of said assessments the company entered into 
contracts for construction that can not be met otherwise than 
by the means to be raised through said assessments ; that 
plaintiffs knowing, &c., sought and obtained consent of the 
company'to work out, on said road, the assessment of 1869 
charged against their lands, and used the receipts of the 
company for the amount of their work on the road in dis- 
charge of said assessment on the County Treasurer's 
duplicate, and that they had made no complaint of the 
assessment, nor disputed its validity, until the filing of their 
complaint in this Court, March 6, 1871. 

If for any cause the assessment in question is void, the 
acquiescence of plaintiffs in it would not make it valid ; but 
their laches in not promptly seeking a remedy by injunction 



IN SPECIAL TERM, 1871. 13 

Williams and Another v. Little White Lick Orarel Road Companj. 

famishes a strong reason why that remedy should not be 
granted them under the circumstances set forth in this 
answer. In GreenshaJgh v. Manchester and Birmingham R. 
W. Co.y it was held ^ that if a party is cognizant of his right, 
and does not take those steps to assert it which are open to 
him, before he has allowed the adversary to incur material 
expenses, or to enter into engagements difficult to be 
discharged, he will lose his right to the interposition of 
equity " 3 M. & C, 784, 799 ; 2 Eden on Injunction, pages 
372, 374, notes. 

Applying this principle to the case in hand, the injunction 
asked should be denied, leaving the plaintiiis to such means 
of defense against the assessment as they may find outside 
of the equitable jurisdiction of the Court 

The demurrers to the several paragraphs of the answer 
are overruled. 



NoTB. - Final judgment was rendered on demurrer in accordance with the 
foregoing opinion from which no appeal was taken. — Rbp. 

See 33 Ind., 317, 325; 34 Ind^ 36. Bee also 3 (?. j- H., 291, note 1. 
"If a party is guilty of laehetf or unreasonahle delay in the enforcement of 
his rights, he thereby forfeits his claims to equitable relief — more especially 
where a party, being cognizant of his rights, does not take those steps to 
assert them which are open to him, but lies by, and suffers other parties to 
incur expenses, and enter into engagements and contracts of a burdensome 
character." HUUard <m Injunetiont, 43. See also 10 Cushing^ 253; 1 Orant, 
412 ; 5 Jone* Eq.^ 323; 11 t7ray, 359, and Binney's case, 2 Bland, 99; Kerr's 
Ir junction in Equity, 202, 210, 628. 

Where Commissioners have awarded the owner of land an amount meas- 
urably below its value, the corporatioh for which they are acting may be 
restrained from entering upon and taking poiseseion of such land. 29 
But C, 396. 

Municipal corporators. and tax-payers, unless individually injured, can not 
enjoin a public wrong. 4 JTeman, 35G, 506. 

An injunction lies against taking land till security is given for the value, 
though the party has not petitioned for damages. 35 Penn^ 231. 

As a general rule the compensation should precede, or be concurrent in 
point of time with the taking. See Sedgwick on Damaget^ 662, 607, and 
authorities cited. 



14 SUPEEIOR COURT REPORTS. 



Carter •• the Augusta Gravel Road Company. 



IN GENERAL TERM. 



GcoRGR H. Carter v. The Augusta Gravel Road Com- 
pany. 

Trespass — Practice — Pleading — New Trial — Exceptions. 

AVhere no adTene pofiseesion is shown, a plaintiff in an action for trespass 
upon realty, may recorer without showing preTions possession. 

An adverse entry is not to be presumed, but must be proTen. 

A C0U1 plaint in trespass, simply declaring for damages by adyene poasessioD, 
and for removal of buildings, does not raise the question of title to the 
real estate. 

Where the defendant in an action of trespass Justifies by reason of some 
title or easement, which gires him a legal right to do the act which is 
the subject of the action, he must set forth the title or right to enjoy the 
easement specially. 

Questions of law, arising upon the finding must be sared by exceptions to the 
conclusions of law. 

A motion for new trial is the proper remedy where the finding is not sus- 
tained by the CTidence. 

Finch Sf Finchj for appellee. 

Barbour Sf Jacobs^ for appellant. 

Blair, J. — The plaintiff alleges in his complaint that he is 
the owner of certain real estate, and that the defendant, 
without right, entered upon it and erected thereon a toll 
house, dwelling house, and out-buildings, and continues to 
maintain the same thereon, and refuses to remove them, to 
the damage of the plaintiff; for which damages he asks 
judgment, and also asks as special relief that the defendant 
be compelled to remove the buildings. The first paragraph 
of the answer is the general denial, and a second paragraph 
sets up a license from the owner of the premises. 




IN GENERAL TERM, 1871. 15 

Carter v. the Augusta Gravel Boad Compan j. 

There was a trial by the Court at Special TeriB, and at 
the request of the parties, the Court made a special finding 
of the facts and the conclusions of law thereon. The 
defendant moved for judgment upon the special finding, 
which motion was overruled and excepted to by the defend- 
ant Judgment was then entered for the plaintiff. The 
defendant appeals and assigns for error the overruling of her 
motion for judgment upon the special finding, and the 
rendering of the judgment upon the finding for the plaintiff. 

No exceptions were taken to the conclusions of law stated 
by the Court, nor was there any motion for a new trial, and 
under the practice prescribed by Section 341 of the Code^ 
2 G. Sf H.J 207, the main questions which were dis- 
cussed in the oral argument of the appellant, and which 
are presented in the brief, are not properly before the Court 
for review. 

Questions of law arising upon the finding, must be saved 
by exceptions to the conclusions of law, and are not saved 
by a motion for judgment on special finding, nor by a motion 
for a new trial. Luirance et al v. Luirancey 32 Ind., 198 ; 
PedenSj AdmW^ v. King^ 30 Ind., 181 ; Addleman v. Erwin 
and Others^ Adnirz^ 6 Ind., 494 ; Smith et al v. Jeffries^ 2J5 
Ind., 376 ; The CUu of Logansport v. Wr^ht, lb., 512. 

If the finding is not sustained by the evidence, or is con- 
trary to law, a motion for a new trial is the proper remedy. 
Schmilz V. Lauferty^ 29 Ind., 400. 

The evidence is not before us; and the motion for a 
judgment in favor of the defendant on the special finding of 
facts, and the conclusions of law thereon, proceeds upon the 
theory that the finding is correct and sustained by the 
evidence ; and as no exceptions were taken to the conclu- 
sions of law, the case is not similar to a special finding of 
faets by a jury, and a general verdict inconsistent with the 
facts ; in which case the special finding must govern, and a 
judgment would* be rendered on the special finding for the 



^ 



16 SUPERIOR COURT REPORTS. 

Carter v. the Augusta Q ravel Road Company. 

party legally entitled to the same, notwithstanding the 
general verdict 

The special finding of the Court does not indicate that 
any facts exist to support the plea of license ; and hence the 
defense is limited to such matters as might properly be 
admitted under the general issue. Although the complaint 
asked as special relief that the defendant might be compelled 
to remove the buildings, we regard the prayer as surplusage, 
the action being merely to recover damages for the alleged 
trespass, and not to recover possession. 

The Court found that the lands described in the complaint, 
^< are bounded on the east by the Michigan road, and include 
half the road, subject to the public use of said road," and 
and that the plaintiff, and those from whom he derived bis 
title, owned the same, ''back to a period anterior to the 
construction of the Michigan road under the acts of Congress, 
and the General Assembly of the State of Indiana." These 
facts, and the further fact that the defendant erected the 
buildings complained of on the land, as found by the Court, 
would make ^ prima facie case for the plaintiff. The entire 
defense, as disclosed by the findings, and as presented to the 
Court, rests upon the theory that the defendant is possessed 
of the public easement of the road formerly known as the 
Michigan road ; and that the right of way is one hundred 
feet wide or, in other wonls, that the right of the defendant 
extends to the use of fifty feet of the lands of the plaintiff, 
extending westward from the center of the road. Such a 
defense, to be available, must have been set up in answer, 
for it is a rule of pleading established at common law, as 
well as by the Code, that whenever the defendant in trespass 
justifies by reason of some title or easement which gives him 
a legal right to do the act which is the subject of the action, 
he must set forth his title, or right to enjoy the easement 
specially. Pearle v. Bridges^ 2 Saunders R., 401, and Note 1. 
Wood V. Mansell et al, 3 Blackf., 125 ; Tlie President and 



IN GENERAL TERM, 1871. 17 

Carter v. the Augusta Gravel Road Compan j. 

Directors of the Crawfordsville and Wabash R. R. Co. v. 
Wright, 32 Ind., 252 ; Babcock v. Lamb etal,l Cowen, 238; 
Devnch v. Chapman, 11 John., 132; Strout et al v. Berry, 7 
Mass., 385. 

It is urged that the plaintiff is not entitled to recover 
because the buildings connplained of were erected, and the 
defendant was in possession holding adversely to the plain- 
tiff at the time he acquired title. It is true that to maintain 
an action for trespass, the plaintiff must have the actual or 
constructive possession. Raub v. Heath, 8 Blackf., 575. 

The English rule required an actual entry by the bargainee 
before he could maintain trespass, but it is held in the case 
of Wood V. Mansell, 3 Blackf., 125, that " unless there appear 
to have been an adverse possession of the locus in quo, the 
bargainee may recover in trespass by proving property, 
without showing also a previous possession." 

The finding simply shows that the defendant erected the 
toll house, &C., on the premises described in the complaint, 
and does not show any claim of right or title adverse to the 
plaintiff. An adverse entry is not be presumed, but must be 
proven. Pierson et al v. Doe, 2 Ind., 123, and the authorities 
there died. As we think, the finding does not show the 
erection of the buildings to have been under a claim adverse 
to the owner, the rule contended for would not apply. 

But as we have already stated, this and other similar 
questions are not properly presented, and saved by exceptions 
to the overruling of the motion of the defendant for judg- 
ment on the special finding ; and that the defense urged by 
the defendant, that she was possessed of the easement or 
right of way over the premises on which the buildings were 
located should have been set up specially in answer, the 
judgment must be affirmed. 

The case was transferred to this Court from the Court of 
Common Pleas, under an agreement waiving nothing as to 
the taxing of costs, but the costs to be taxed as if no 
2 



18 SUPERIOR COURT REPORTS. 



Carttr «. the AugnsU QraTol Road Company. 



agreement to transfer had been made. A motion was made 
by the defendant to tax all the costs up to the time of the 
transfer to the plaintiff, ''because it appears from the com- 
plaint that the title to real estate is in question in this case." 
The Court overruled the motion to which the defendant 
excepted. We do not think the title to real estate is put in 
question by the complaint; the overruling of the motion is 
fully sustained by authority — Maxam v. Woody 4 Blackf., 297. 
Per Curiam — The judgment is affirmed. 



Note, — If the plaintiff have the right of property, and of immediate 
poeteaeion, he may maintain trespass, thoagh not in actual poesesiion. 1 
Iowa {GrtetM), 494; FboU ▼. MUekdl, 1 Hill, (S. C), 404. 

See also for principles controlling damages in trespass — S§dp§ick en 
Meaiur$ qf Damagef, 6tk JbStf., p. 143, «i m^, af%d auikoritie$ eiietL 

When the motion for a new trial mert ly shows, that a psriy claimed that 
certain OTidence was not admissable in any way to affect the terms of a 
written instrument^ without showiog that the olsim wss made when the 
oTidence was offered, or that the CTidence was let in subject to exception, 
and the claim subeequently made thst it should be excluded, or that the 
Court was requested to charge as to its effect, or the consideration to be 
giTen it, no question is raised which the Court is bound to oonsider. 31 
Conn.f 204, per Butler^ Judg; 

Where the Court below refused a new trial, in the Appellate Court all the 
evidence must appear in the exceptions. HiUiard on New Trials, p. 22. 

So the Court above will not reriso the sotion of the Court below in 
granting a new triiil, unless the facts upon which the Coari acted appear 
from the reooid. Same. 

A motion for a new trial is the proper remedy for error io admitting or 
rejecting testimony, or io the charge of the Judge to the Jury. A motion 
in error^ for errors in the declaration, pleadings, end Judgment. HilUard on 
N T.y p. 12, and citatiom. 

An application for a ** new trial " comes too late after ** a motion in arreei 
of judgment*^ has been overruled. Same^ and citationa. 

In general, **a motion in arrest of judgment," affirms the verdict, and 
precludes a motion for a now trial. 12 /yu/., 317. 

The verdict of a jury upon questions of fact, or the judgment of the Court 
acting in place of a jury, will not be disturbed unless eUarly andpalpahljf 
wrong. 17 Barbour, 388. See also 5 Ind., 261. 



IN GENERAL TERM, 1871. 19 

SjWetter «. Macauley, Mayor, and Memben of Common Council. 

What ii not found by a special verdict, will be talcen not to exist 20 
Penn^ 60 ; 21 Pick., 509 ; SiaU t. WaUaee, 3 Iredel, 195. 

" Verdicts are to have a reasonable intendment ^ ^ If rendered upon 
iubstantial issues of fact, fairly presented by the pleadings, they should not 
be disturbed oo account of mere technical defects. So where the record it 
irregular and confused, but shows a verdict to have been rendered, the 
presumptions will be in favor of the validity. Dixon v. State, 3 Clark$ {Iowa), 
416 ; Billiard on N. T., 99, et uq. 



• m» 



IN GENERAL TERM. 



David Sylvester v. Daniel Macauley, Mayor, John S. 

Newman, et al^ Members of the Common 

Cooncil, appellants. 

Appealed from Raxd, Judge. 

Common Council as Public Agents — Powers and Jurisdic* 
tion of—Liabilitif for illegal proceedings — Relation of 
Mayor to. 

The Common Council, so far as their administrative or ministerial duties 

extend, are agents of the city, and as such may contract, among other 

things, for street improvements. 
The jurisdiction of a Common Couocil is confined to that territory only, 

which is within the boundaries of the city. 
The Council has no power to contract for improvements beyond the city 

limits, and no assessment will lie, therefore, against property holders 

abutting such improvements. 
A person contracting for a street improvement has a right to presume that 

the Council had used the proper diligence to acquaint themselves with 

the city boundaries. 
Public agents exceeding, negligently using, or abusing their authority, are 

liable to the injured party, and the Common Council, as such, in care- 



20 SUPERIOR COURT REPORTS. 

SyWester v. Maeauley, Mayor, and Members of Common Council. 

lesslj authorising improvements beyond their jnriidietion, beeone 
personally liable for the valae of the work dono in obedience to their 
authority and direction. It is not sufficient to show that they acted 
bona fide and in ignorance of the true city boundary. They are bound 
to the exercise of reasonable skill and diligence in acquainting theas* 
selres with the territorial limiu of the city, and are supposed to know 
the limit of their power. 

Affirmatire participation in such tibauthorized action of the Council is neoes> 
sary to attach responsibility for its sets. 

The Mayor of a city, under the laws of this State, is «b ojleio President of 
the Common Council, and ap such is required by law to attend their 
proceedings, and in case of an equal diTision, gires the casting vote, 
but in no other sense is he a part of the Council, and is not liable for 
the consequences of proceedings of the Council in excess of its Joriadio- 
tion, simply because he signed the ordinance. 

N. B. Sf E. Taylor^ for appellee. 

J. S. Harvey^ R. B. Duncan and John & DuneaHf for 
appellants. 

Newcomb, J. — Sylvester filed his complaint against Mary 
E. Noble, Winston P. Noble, her husband, Daniel Macaoley, 
Mayor, and John S. Newman, Leon Kahn, Temple C. 
Harrison, William D. Wiles, James H. Woodburn, Wm. W. 
Weaver, Erie Locke, Isaac Thalman, James McB. Shepherd, 
Edward Reagan, Austin H. Brown, Robert Kennington, 
John L. Marsee, Thomas Cottrell, Christopher Heckmani 
Courtland Whitsett, John Pyle and Frederick Thorns, 
members of the Common Council of the city of Indianapo- 
lis, in which he alleged that on April 30, 1870, said persons 
described as Mayor and Common Councilmen passed an 
ordinance for the grading and graveling of Market street, in 
said city, from the old corporation line east to Highland 
street, and that the expense of said improvement, except so 
much as might be occupied by public grounds, owned by 
said city bordering thereon, and for street and alley crossings, 
should be assessed against and collected from the owners of 
the lots bordering on said street That after the passage of 



IN GENERAL TERM, 1861. 21 

Sjlrester v. M aeauley, Mayor, and Members of Common Conacil. 

this ordinance the Common Council advertised for proposals 
for doing the work mentioned in the ordinance; that the 
plaintiff was a bidder for said work; that his bid was 
accepted, and on May 21, 1871, plaintiff entered into a 
written contract for grading and gravelling said street in the 
manner prescribed in said ordinance, and that he completed 
said work to the satisfaction and acceptance ot the civil 
engineer of said city, who certi&ed the same to the ^\d 
Coancil. 

That Mary E. Noble was the owner of a parcel of ground 
fronting on that part of Market street along which said 
improvement was made, that the amount assessed against 
her property for said improvement was $348.54, which she 
refused to pay, and on December 26, 1870, plaintiff presented 
his affidavit of these facts to the Council, and asked that a 
precept might issue for the sale of her real estate so 
improved, which precept the Council ordered should issue, 
but which order was subsequently revoked, for the alleged 
reason that said real estate and Market street improvement 
was hot within the corporate limits of the city of Indianapo- 
lis. And the complaint alleges that said street in front of 
Mrs. Noble's property was not in fact within said city ; that 
he was ignorant of that fact when he entered into said con- 
tract, and did said work, but that it was known to the 
defendants, the Mayor and Councilmen, although, by said 
ordinance, proposal and contract, they represented and led 
plaintiff to believe that it was in said city, and that they had 
jurisdiction and authority to order said improvement and enter 
into the contract described, and that by said action he was 
thrown off his guard and prevented from making inquiry, &c. 

That Market street west of the old corporation line had 
been, ever since the incorporation of said city, and was at 
the time of the passage of said ordinance, &c., a street of 
the city ; and that the part of said street east of said old 
corporation line to Highland street, so ordered and con« 



22 SUPERIOR COURT REPORTS. 

Sjrlretter «. Macaulej, Major, and Members of Common Coancil. 

tracted to be improved, had been for fifteen years prior 
thereto, and was at the time a continuation of said Market 
street, called by that name, and used as, and he believed the 
same was a street of said city. 

The complaint prayed, among other things, for a per- 
sonal judgment against the Mayor and members of the 
Council for the amount due for the work done on said street 
in front of Mrs. Noble's property, in case it should be held 
that the property was not liable to said assessment 

Noble and wife demurred to the complaint, their demurrer 
was sustained and final judgment rendered in their favor at 
Special Term. The other defendants demurred, but their 
demurrers were overruled. 

Kahn answered that, though a member of the Council, he 
was not present when the ordinance passed, nor when the 
contract was let, and had taken no part in the transactions 
complained of. On the hearing his answer was sustained 
and final judgment rendered in his favor. 

Macauley answered specially, denying all fraud, &c., and 
alleging that as Mayor of the city it was his duty to preside 
over the Common Council when in session, and to sign the 
ordinances it might pass ; that he did so preside at the time 
of the passage of the ordinance in question, and signed the 
same as Mayor; but that he did not vote for the ordinance, 
(as he could not except in case of an equal division of the 
Council) nor advise the passage thereof; *<that at the time 
the ordinance passed, and during all the subsequent pro- 
ceedings, until the precept was ordered in by the Council,^ 
he supposed and believed that so much of Market street as 
was proposed by said ordinance to be improved, was within 
the corporate limits of Indianapolis, and that the Council 
were acting within the scope of their authority; that the 
plaintiff had the same belief and the same knowledge on 
the subject. To this answer a demurrer was sustained, — the 
defendant excepted. 



IN GENERAL TERM, 1871. 23 

Sylvester «. M acanlej, Major, and M ambers of Common Council. 

All the Councilmen except Kahn answered, admitting 
that as members of the Council they voted for said ordinance 
and to approve the letting of the contract to plaintiff; that 
they so voted by mistake, without fraud or intentional wrong, 
and under a misapprehension as to the locality of so much 
of Market street as it was proposed to improve ; that plaintifi 
and the owners of the lots of land fronting on, &c., at the time 
of the passage of the ordinance, the letting and performance of 
the work, &c, believed that that portion of Market street 
lying, &c, was within the city; that on that point plaintiff 
bad like knowledge with said defendants, and that they acted 
in good faith as members of the Council, and without any 
intention of defrauding, or injuring the plaintiff. Demurrers 
were sustained to these answers, and the defendants having 
declined to answer further,. after hearing proof of plaintiff's 
damages, final judgment was rendered against Macauley and 
all the Councilmen but Kahn. 

The questions arising on appeal are as to the sufficiency 
of the answers. 

The record presents the case of a mutual mistake by the 
parties as to the actual boundary of the city of Indianapolis 
at the points named in the proceedings had by the Council; 
and the question to be decided is, whether the members of 
the Council, acting in good faith upder the belief that the 
territory described was a part of the city, and having made 
no representations to the plaintifi on that subject other than 
appear in their official proceedings in advertising for bids and 
making the contract with the plaintiff set out in his com- 
plaint, are personally liable to him for the value of the work 
he did on the supposed street, because they exceeded their 
statutory authority in ordering the improvement, and con- 
tracting with the plaintiff in their official capacity, for its 
execution ? 

Neither the complaint, nor answer informs us of the cause 
of this mistake as to the city boundary, further than it may 



24 SUPERIOR COURT REPORTS. 

Sjlrester v. Hacauley, Mayor, and Members of Common CoandL 

be inferred from the statement of the complaint that the 
thoroughfare in question had been for fifteen years used as a 
street, and was a continuation, and called by the name of 
Market street, from the old corporation line east to Highland 
street Whether proceedings had been had by the City 
Council to annex this territory, which had, subseqheutly to 
the contract with plaintiff, been found inoperative for that 
purpose ; or whether the County Commissioners had ordered 
its annexation to the city, without having taken all the 
statutory steps requisite thereto, or whether there was a 
confusion in the eastern boundary of the citv, which, by a 
subsequent correction, was located west of the line of 
improvement named in the contract with the plaintiff, does 
not appear. 

If the general principles of the law of agency are appli- 
cable to this case, the members of the Council who invited 
bids for the work described in the complaint, and voted to 
approve the contract, are liable in their individual capacity 
for the value of the work done under the contract 

In discussing the personal liability of agents, Mr. Story 
says : '' Whenever a party undertakes to do any act as the 
agent of another, if he does not possess any authority from 
the principal therefor, or if he exceeds the authority dele- 
gated to him, he will, (in some form of action) be personally 
responsible therefor to the person with whom he is dealing, 
for, or on account of his principal. There can be no doubt 
that this is, and ought to be the rule of law in the case of a 
fraudulent representation made by the agent, that he has due 
authority to act for his principal, for it is an intentional 
deceit The same rule may justly apply, where the agent 
has no such authority, and he knows it, aod he nevertheless 
undertakes to act for the principal, although he intends no 
fraud. But another case may be put, which may seem to 
admit of more doubt ; and that is, when the party undertakes 
to act, as an agent, for the principal, bona fide believing that 



IN GENERAL TERM, 1871. 25 

Sjlvester v. Macanley, Major, and Members of Common Ceoncil. 

he has due authority, but in point of fact, he has no authority, 
and therefore he acts under an innocent mistake. In this 
last case, however, the agent is held by law to be equally &b 
responsible as he is in the two fortner cases, although he is 
guilty of no intentional fraud, or moral turpitude. This 
whole doctrine proceeds upon a plain principle of justice, for 
every person so acting for another, by a natural, if not a 
necessary, implication, holds himself out as having compe- 
tent authority to do the act ; and he thereby draws the other 
party into a reciprocal engagement." Story on Agency, § 
264 ; Long v. Colbum, 11 Mass., 97 ; BulUm v. Talboit, 16 
Mass., 461; Feeter v. Heathy 11 Wendell, 477; Smout v. 
llberyy 10 Mess. & Welsh., 1, 9, 10. 

And a public agent who exceeds his authority, or who 
negligently uses or abuses his authority, is liable to the party 
injured thereby. " And in cases of this sort," says Mr. 
Story, ^ it is not sufficient for public agents to show that 
they acted bonafide^ and to the best of their skill and judg- 
ment, for they are bound also to conduct themselves with 
reasonable skill and diligence in the execution of their trust." 
Story on Agency, §§ 319, 320; BuUou v. Talbott^ supra; 
McHenry v. Duffield^ 7 BPkf., 41 ; Potts v. Henderson^ 2 Ind., 
327 ; HiU v. SmUh, 2 Bing., 526. 

In the case at bar the Council may be regarded as claim- 
ing to be agents for the city, so far as the contract provided 
for paying for the improvement of street, and alley crossings 
from the city treasury ; and as agents of the property holders 
along the street to the extent that the contract stipulated, 
that the cost of the improvement should be assessed against 
the lots abutting on the street {Beard v. City of Brooklyn^ 
31 Barbour, 148.) But they had no authority to bind either 
in this case, because the territory in which the improvement 
was ordered, was not within the city, and therefore no 
jurisdiction had been conferred upon them. Members of a 
City Council are bound to the exercise of reasonable diligence. 



26 SUPERIOR COURT REPORTS. 

I I ■ -m ■ -m * 

Sylvester v. Macaulej, Major, and Members of Common Council. 

at least, to ascertain the extent of the territorial limits within 
which they have authority to act; and when they invite 
proposals for improvements, which they have no right to 
order, except within the city, they do thereby practically 
assert that they have used such diligence in ascertaining the 
extent of their territorial jurisdiction, and that, after due 
examination, they have adjudged the territory within which 
the proposed work is to be done, to be within the corporate 
limits of the city. 

We think, in this case, that the plaintiff had the right to 
rest on the assumption that the members of the Council had 
so performed that duty, without prosecuting further inquiries 
as to the exact city boundaries. He avers that he did rely 
on the representation of the defendants, and that he was 
thereby induced to bid for the work, and make the contract 
alleged. 

The answer concedes that the plaintiff was in fact ignor« 
ant that this extension of Market street was outside of the 
city, and that he was so misled by the action of the Council 
in advertising for bids for making the improvement. The 
defendants allege like ignorance on their part, but they fail 
to show that they had used any diligence, or made any 
effort whatever, to inform themselves whether the street in 
question was within the geographical boundaries of the city; 
nor does the answer allege any excuse for their want of 
knowlege that the street they engaged the plaintiff to 
improve was outside the territory over which the City 
Council had jurisdiction. We hold, therefore, that the judg- 
ment at Special Term against the members of the Council 
who participated in the proceedings complained of, was 
right, and affirm the judgment as to them. But the defend- 
ant, Macauley, does not stand on the same footing with the 
members of the Council. He did nothing in the premises 
save to sign, as Mayor, the ordinance ordering the improve- 
ment This was his duty under the statute. (Davis^ 106 ; 




IN GENERAL TERM, 1871. 27 

SyWenter «. Kaeaiilej, Major, and Hemben of Common Goancil. 

Sec 78.) The mere attestation of the Mayor that the 
ordinance had passed the Coancil by the requisite namber of 
votes worked no injury to the plaintiff, and a majority of the 
Court are of the opinion that the judgment as to him should 
be reversed. 



NoTB. — ^The Common Gonncil of a city hare the right to regulate the 
street!, alleys end sidewalks, to improve and repair the same. In such esse, 
there is no iodiTldnal liability, either ciTily or criminally, unless they acted 
corruptly. Baker r. The State, 27 Ind., 485; Wood t. Meare, 12 Ind., 515; 
dfy of Vmeemue r. Rkkarde^ 23 Ind., 381 ; Citjf f^ IndianapoUe t. Iwherry, 
17 Ind^ 175. 

The Mayor and Coancilmen of the city shall constitute the Common 
CounciL The Mayor shall be the presiding ofBcer of the Common Council, 
and shall hare a casting Tole in all cases, when a tie, but not otherwiiie 
WMo T. WaOact, 12 Ind., 569. 

Cities are created and endowed by the Legislature, with certain powers 
called Charters, and in their action, these cities must be confined within the 
limits that a sttict construction of the grants of powers in their Charters will 
assign to them. 5 Ind., 38. 

It may also be considered as fettled that municipal corporations are 
responsible to the same extent and in the same manner as natural persons, 
for injuries oeca9ioned bjr the negligence or uoskilfulness of their agents in 
the construction of works for the benefit of the cities or towns under their 
goreroment. Roee r. dtjf of Madieony 1 Ind., 281, and authorities cited; 26 
Ind., 17, and authorities cited. 

The members of the Council are personally liable, if the agents of an 
individual would be, under the same circumstaoces. Johneon ▼. The Qtm- 
man Council o/ the City of Indianapolis, 16 Ind., 227. 

A person contrscting with a city, for the improTemeat of a street in such 
city, is bound to take notioe of the proTisions of the general law regulating 
such improTements ; and must also ascertain whether the Common CouDcil 
have so conducted the letting, as to render property holders liable for tbe 
improvement. 16 Ind., 227. 

A distinction exists between the legislative powers of the Common Council 
and the exercise of their rights over property belonging to them. No act 
done by them in regard to their property, can be set up to ntilrain them 
from acting in matters which require legislation for the city interests, and 
no act done by them in tbe former capacity c»n deprive them of the power 
of passing such laws as may be deemed necesf nry for the public good. Supe- 
rior Ckmri {Oiy of Albanif, N. F.,), 6 Abb., 273. 



28 SUPERIOR COURT REPORTS- 

Sylvester «. Macanley, Mayor, and Members of Common Covncil. 

Corporations, like indiTidaals, may be bound by implied contracts, to be 
deducea from corporate acts, withoat either a note, writing or deed. Bnt in 
applying ihis rule we most be careful to not violate the mle that no act can 
be made valid which is without the power of the corporation, or the scope 
of its authority. New York ^ HarUm Railroad Co^ t. Mayor, J-e., <if Ntw 
York, 1 Hilt., 562. 

Courts are bound to assume, that where a discretion is vested in a munici- 
pal body, as to exercising functions of a legislative character, good reasons 
existed for the adoption of a regulation or ordinance, which was the result 
of ruch a discretion. 8anu, 

The general agent of a corporation, clothed with certain powers, by the 
Charter, or by the lawful act of the corporation, may use those powers for 
an unauthorized or even a prohibited purpose in his dealings with an 
innocent third party, and yet the corporation may be held liable for his acts. 
24lnd. 457. 

A private corporation is liable in damages to individuals for injury to 
their property, although no remedy for snoh injury is provided by the act of 
io corporation. 14 Conn , 153 ; 15 Conn., 312 ; 2 Johns Ch., 162 ; 9 lod., 433. 

Also liable for damages to property, by creating a nuisance under munici- 
pal authority. 20 Ind., 131. 

One who acts for another, by a natural, if not a necessary implication, 
holds himself out as having competent authority to do the act, and he 
thereby draws the other party into a reciprocal engagement. Story on 
Agency, 264. 

See also 1 Ind., 291, 381; 26 Ind., 17; 29 Ind., 187; 25 Ind., 512; 6 Ind., 
237; 14 Ind., 399; 16 Ind, 441; 30 Ind., 235, also 192; 17 Ind., 175, 169, 
269; 19 Ind., 135; 6 Ind, 38; 20 Ind., 315; 22 lod., 491 ; 28 Ind., 378; 12 
Ind., 569, 515; 8 Ind., 54; 27 Ind., 485; 30 Ind, 192; 22 Ind., 491; 3 N. 
Y., 463; 5 N. T., 369; 3 Hill, 612; 3 Comst, 463; 4 Ohio St, 80; 1 Seldon, 
369; 4 Comst, 195; 18 Flk. St., 187; 20 Howard, 185. 




IN GENERAL TERM, 1871. 29 



BohriDg V. Root et al. 



IN GENERAL TERM. 



Ephriam Bohrino v. Deloss Root, et alj appellants. 

Appeal from Blair, Judge. 

Promissory Note — Surety. 

StiU againit B., aa tureif on a promUtcry noU ae a Ued by il., A. kavmg htin 
aijudieaUd a bankntpL 

Defendant answered that plaintifl^ without his knowledge, extended the time 
of payment for a consideration, and by so doing released him from 
farther liability as surety. The plaintiff in reply declared, Fhrtif that 
no consideration was given for the extension. 

Second, That defendant had reoeiTed secnrity from A to indemnify him 
against loss on this note, and that he still held snch secnrity. 

Third, That defendant, after extension of payment, consented to, ratified, 
approved, and confirmed such extension. 

Held : On demurrer to these several issues — 

liret, That if the sgreement to extend the time for payment was made with- 
out any valid eonfideratioo, it did not release the surety. 

Second^ That where the surety is fully secured by property in his hands, he 
is estopped from objecting to any extension of time made between 
creditor and principal. Such security being, in effect, an appropriation 
by the surety of that portion of the effects of the principal to the pay- 
ment of the debt. 

Thirdf Where a demurrer to a paragraph of the reply has been overruled* 
and on the trial the issue made by such reply is found against the 
plaintiff, the defendant can not complain of the ruling on his demurrer. 

Pleading — Departure in — How remediedL 

A departure in pleading csn not be reached by motion in arrest of judgment, 
but objection must be taken advantage of, by motion or demurrer, 
before the issues are completed. 



30 SUPERIOR COURT REPORTS. 

Bobring v. Root et al. 

Dye Sjc Harris j for appellee. 

N. B. Sf E. Taylor, for appellants. 

Newcomb, J. — Bohring sued Mahlon B. Pentecost and 
Deloss Root on a promissory note for 8800, drited February 
17, 1870, due eight months after date. The face of the note 
showed that Root executed it as surety for Pentecost 
There was a verdict and judgment against Root alone, 
Pentecost having been adjudged a bankrupt by the U. S. 
District Court. 

Root's answer set up, among other defences, that on 
January 3l8t, 1871, after the maturity of the note, and with- 
out his knowledge or consent, the plaintiff, in consideration 
of the sum of twelve dollars, to him paid by Pentecost, 
extended the time of payment of the note for the period of 
six months from said last mentioned day ; whereby he, as 
such surety, was discharged, &c. 

Several replies were filed to this answer, only three of 
which, the second, third, and sixth, need be noticed. 

The second paragraph of the reply was, that the extension 
set up in the answer was given without any consideration 
whatever. A demurrer to this reply was overruled, which is 
the first error assigned. We think the demurrer was properly 
overruled. If the agreement to extend the time for payment 
was made without any valid consideration, it did not release 
the surety. Halstead v. Brown, 17 Ind., 202; Kirby v. 
Studebaker, 15 Ind., 45. 

The third paragraph of the reply alleged that Root, on 
April 1, 1870, before maturity of the note, demanded and 
received from Pentecost, to indemnify the former against 
loss as surety on this and other liabilities of the latter, the 
negotiable note of Pentecost for the sum of 87,000, payable 
ten months after date, with interest, and attorney's fees, if 
suit should be instituted, &c., and at the same time took 
from Pentecost a mortgage on real estate in Marion couutyi 




IN GENERAL TERM, 1871. 31 

Bohring v. Boot et al. 

of the valae of 916,000, to secnre the payment of said note. 
It was further averred that the note for 97,000 more than 
equalled all the liabilities of Root as snrety of Pentecost, 
incloding the note sned on, and any expenses he might be 
sobjected to in connection therewith ; and that it was snffi- 
cient and ample to fully indemnify him ; that {loot still 
held said note and mortgage, and refused to assign the same 
to plaintif]^ or in any way give him the benefit thereof. 

A demurrer to this paragraph was overruled, and the 
ruling thereon is assigned for error. 

Was the demurrer correctly overruled ? 

In ChUton et al v. Price et al^ 4 Ala., 324, which was a 
case similar, in its essential features, to the present, it was 
held that '^ the taking, by the sureties, of a deed of trust, or a 
mortgage, from the principal debtor, to secure them from 
liability, and ample for that purpose, is in effect an appropria- 
tion by them of that portion of the effects of the principal 
to the payment of the debt, and they will not be permitted 
to urge that they are not responsible." 

This Alabama case was followed and approved in Smith 
V. Steele, 25 Vt, 431. We quote the following portion of 
the opinion delivered by Chief Justice Redfied in the latter 
case : 

'^ Upon general principles, it seems to us, that so long as 
the surety was fully secured, by property in his hands, he 
should be estopped from objecting to any enlargement of the 
time of payment made by arrangement between the creditor 
and principal. If this fact is known to the creditor, it would 
certainly place his conduct in a very different light from what 
it is where no such indemnity exists. We can all see, that 
in such a case there can probably be no fraud in fact. And 
in equity (and in law, we think the rule should be the same) 
there is no fraud if such indemnity exists, whether known to 
the creditor or not. And this ground of defense for the 
surety, goes upon the supposed basis of fraud. 1 Story, Eq., 



32 SUPERIOR COURT REPORTa 

Bohr'mg 9. Root et %\. 

§. 327% In snch a case the sarety is the virtual principal, and 
ooght to be boond by every enlargement of the time of pay- 
ment-, quite as much, perhaps more, than on joint principals 
by such a contract made by one of their number and the 
creditors, of which there is no doubt.^ 

See also Moore Sf Barney v. Paine^ 12 Wendell, 123; 
Oushiug V. Gore et cUj 15 Massachusetts, 69 ; Eastman et al 
V. Foster et aly8 Metcalf, 19 ; 1 Parsons on Bills and Notes, 
241. 

In the light of these authorities we think the ruling of the 
Judge at Special Term was correct 

The sixth paragraph of the reply set up that after the 
payment of the note had been extended as alleged in Root^s 
answer, the same was duly made known to him, and that he 
^'consented to, and ratified, approved, and confirmed such 
extension." A demurrer to this paragraph was overruled, 
which presents the next question to be considered. 

Without stopping to discuss the proposition whether a 
subsequent ratification by the surety of an extension of 
time given for a consideration, and without his knowledge, 
by the creditor to the principal debtor, is suflScient to revive 
the liability of the surety it is enough to say that in the 
case at bar the jury, in answer to a proper interrogatory, 
found against the plaintiff on the issue made by this para- 
graph of his reply. Consequently the ruling of the Court 
on the demurrer could not possibly have worked any injury 
to the defendant 

After the verdict the defendant. Root, moved, in arrest of 
judgment, for the following causes : 

Firsts That the complaint was not sufficient to entitle the 
plaintiff to judgment 

Secondj That the Court erred in overruling the demurrer 
in the third paragraph of the reply. 

TMrdj That the third paragraph of the reply was a depart 
ture from the complaint 



IN GENERAL TERM, 1871. 33 

Bohring v. Boot et al. 

Fourth^ That it was shown by the special findings of the 
jury, that the plaintiff was entitled to a 'verdict only on the 
matters set forth in the third paragraph of the reply, and 
that said paragraph was a departure from the complaint^ and 
did not entitle the plaintiff to a judgment. 

There is nothing in the ejection to the sufficiency of the 
complaint, and we have already decided that the Court 
committed no error in overruling the demurrer to the third 
paragraph of the reply. 

The reply was not, as we think, a departure ; but if it had 
been, the error could not be reached by a motion in arrest. 
In McAroy v. Wright^ 25 Ind., 22, it was held that an objec- 
tion to a departure in pleading can be taken advantage of 
only by motion, or demurrer, and that it is not a cause for 
arresting judgment 

The judgment at Special Term is affirmed with costs. 



NoTK. — If the holder of a note, for a valuable consideration, give time to 
the maker, he thereby discharges the surety. Cooper v. Gibbtf 4 McLean, 
396; 2 McLean, 74, 99, 451. 

The giving of time to the maker of a note, who is a certificated bankrupt, 
will not discharge the endorser, for he is not thereby prejudiced, lieman 
y. Woodruff 5 McLean, 350. 

The indulgence which will discbarge an endorser miist not only be on a 
good consideration, but for a limited and definite period. 4 McLean, 88. 

It is a settled rule of law, that extending to principals further time of 
payment, without consideration, will not discbarge the surety. See Bright' 
Uy'M Digest on Federal DecieionSf page 824, on '* Discharge qf Sureties" and 
oasee cited. 

When the payee upon sufficient consideration extends the time of pay- 
ment to the principal, without the consent of the surety, the latter is dis- 
charged, the payee being equitably Estopped. ZHekerson et al v. The Board 
of County Commissioners of Ripley Co. et al, 6 Ind., 128. 

The payment 6f interest in advance is a sufficient consideration to support 
an agreement for further forbearance. Same. 

An agreement with the principal, in order to release the surety in a writ- 
ten iostrument, need not operate to release the debC. Same, See also Zim* 
merman y. Judah^ 13 Ind., 286, and authorities cited. 

3 



34 SUPERIOR COURT REPORTS. 

Smith 9. Fletcb«r. 

An oral agirement by the pajee of a promisaorj nota with the principal 
maker, withoat the knoii4edge or consent of the soretj, whose suretyship is 
known to the payee, to extend the time of payment during a definite period 
beyond the maturity of the paper, is ralid, and releases the surety, if founded 
upon a sufficient consideration. Pierce r. OcUUbeny^ 31 Ind., 52. 



IN SPECIAL TERM. 



Norton R. Smith v. Timothy R. Fletcher. 

On motion for new trial, before Blair, Judge. 

Husband — When liable for purchases by wife. 

Goods purchased by wife when she was already sufficiently supplied with 
articles of the same kind, are not necessary articles, and recorery can 
not be had against the husband for their value. 

Cohabitation — Law presumes husband to assent to contracts 
— How presumption may be repelled. 

In a legal sente, husband and wife can oot be considered, liTing separate, 
and apart, though they do not live together, if cohabitation continues 
between them. The law presumes that during cohabition the husband 
assents to contracts made by the wife for articles soited to their meant 
aud station in life, as the implied agent of her husband, and he is held 
liable on such contracts. 

Misrepresentation, of what may be necessary, may be repelled inter alia^ by 
showing undue extravagance of the wife 

Wife — W/ien can not bind husband by her ptirchases. 

If, however, the husband supplies her properly, with means, or necesMries, 
whether living with her, or living separate and apart from her — in 
either, and in such case, she is not his agent, and can not bind him by 
her purchases. 



k 



IN SPECIAL TERM, 1871. 35 

Smith 9. Fletcher. 

Merchant — When husband not liable for wife^s purchases. 

It U Dot incumbent upon the husband to show that at the time of the pur- 
chase bj the wife the tradeeiuan knew that the was already supplied. He 
supplies the articles at his own peril if he takes no pains to ascertain 
whether or not the necessity exists, and if neoessitj does not exist, the 
husband is not responsible. 

Voss Sf DaviSj for plaintiff. 

N. B. Sf E. Taylor^ for defendant 

The plaintiA' brings this suit to recover for a bill of goods 
alleged to have been sold, and delivered to the defendant. 

The issues joined in this case, and upon which the parties 
went to trial, present the questions whether the defendant 
and bis wife lived separate and apart from each other, and 
whether that separation was the fault of the husband, or of 
the wife, who purchased the goods, or whether or not the 
goods were necessaries. 

The plaintiff proved the sale of the goods to the wife of 
the defendant 

The defendant introduced no evidence to show that their 
being separate was the fault of the wife, and hence all 
evidence relating to the conduct toward each other, of the 
defendant and his wife was excluded. All the evidence 
offered, bearing upon the question of their living together, 
was admitted. 

I think there was no evidence excluded, therefore, that 
would have been proper to be considered by the jury, unless 
it was the fifteenth question, and answer, in the deposition 
of James D. Fletcher, as bearing upon the question whether 
or not the goods purchased by the wife were suited to her 
station, &c., in life. 

The witness was asked to compare the quality of the 
goods purchased by the wife of the defendant with those 
usually purchased by the defendant for her. In the sense of 
ateertaining the position in society and standing, which the 



36 SUPERIOR COURT REPORTS. 



Smith V. Fletcher. 



defendant had aathorized her to assume, this qnestion would 
seem to be relevant But the answer of the witness, I con- 
ceive, gives no facts which should have weight with the 
jury. He says some goods purchased by him for her were 
more costly, but he gives no clue to the kind of articles, to 
show that they were similar. He only speaks of a gold 
watch for her, costing 8115, and a diamond pin, which the 
witness was wearing, that cost 8150. It is not shown that 
she was ever in the habit of wearing the diamond pin, or 
that it was really bought for her use. The witness says the 
defendant bought it, and gave it to his wife, and he was 
wearing it. The inference is, that it was not for her to wear, 
and was not a ladies pin. And the only importance that 
can properly be attached to the statement is, that the witness 
was giving his testimony when in full dress, and wearing 
costly jewelry. 

I conclude, therefore, that there was no error in excluding 
this part of the evidence. 

The objections urged most, are to the instructions given by 
the Court I think there was no error in the statement of 
the issues joined. It is true, as before stated, that the ques- 
tion as to who was to blame for the separation of the 
defendant and his wife, was not entered into, the evidence. 
But as this proved only one of the questions combined with 
the others in the same answer, a plain statement of the 
issues joined on paper can not be supposed to have misled the 
jury. The jury were instructed, that if they should find " that 
at the time the goods were purchased the wife was already 
sufficiently supplied with articles, of the kind purchased, you 
can not in such ca^e find that the articles purchased were 
necessaries." It is insisted that this instruction was 
erroneous, because the plaintiff is not bound to inquire 
whether she was already supplied, and to relieve the defend- 
ant from liability, the plaintiff must have knowledge that 
the wife was already supplied. 



IN SPECIAL TERM, 1871. 37 

Smith V Fletcher. 

The jary were also instrncted, that if at the time of the 
purchase they were living separate and apart, '^ and she was 
possessed of snfiicient means of support, held in her own 
right, whether famished by the defendant, or arising from her 
separate estate, the defendant can not be held liable even for 
necessaries," • • • unless he promised to pay for 
them. 

It is insisted that this instruction was error, for the reason, 
that unless the plaintiff in such case has knowledge of her 
being so supplied, the husband will be liable, and that he is 
not bound to inquire before selling the goods. These objec- 
tions can conveniently be considered at the same time. The 
facts of the case presented some peculiarities not usually 
met with. The defendant and his wife neither lived separate 
and apart, nor did they live together in the sense in which 
those terms are usually employed. The defendant resides 
most of the time in this city by himself. The wife keeps 
bouse, and resides most of the time in Dayton, Ohio. The 
defendant occasionally goes to Dayton, or did prior to, and 
up to about the time of the purchases, and while there made 
bis home with his wife, cohabiting with her, and assisting in 
supplying the household with provisions, &c. His wife, up 
to about the time, or shortly before the last purchase was 
made, was in the occasional habit of coming to this city, 
and cohabiting with her husband. The house at Dayton 
seems to have been almost exclusively under the control of 
the wife, though the defendant, when in Dayton, speaks of 
it as his home, but all the facts and circumstances seem to 
point it out as her establishment She was possessed of 
means, sufficient of support, equal, or almost equal, to that 
of the defendant, her husband. In this view of the case, it 
is not very important whether they lived together or lived 
apart, in the ordinary sense of these terms. 

The objections to the instructions present the true ques- 
tions : 



38 SUPERIOR COURT REPORTS. 

Smith 9. Fleteher. 

Fir St J If they lived together, or if they lived separate and 
apart, and the wife was already sufficiently supplied with 
articles of the kind purchased, can the husband be held liable 
for purchases made by the wife, of a tradesman who had no 
knowledge of her being so supplied. 

Secandj If she had sufficient means of her own to supply her 
wants, can the husband be held liable, while she is living apart 
firom her husband, even for necessaries supplied by a tradesman 
who has no knowledge of the means possessed by the wife. 

The case of LUson v. Brown^ 20 Ind., 489, is cited in suppcnrt 
of the position assumed by the plaintiff, that the tradesman 
must be shown to have had knowledge, and that it is not his 
duty to inquire as to facts and condition of the parties. In 
the case cited the action was against the husband to recover 
for the board of the wife while living separate from her 
husband, and prior to a decree of divorce. When the wife 
went to Court with the plaintiff, and for some time after^ 
ward, she had no means of her own. She afterward received 
money and loaned a part of it to the plaintiff, and the Court 
says ^' the wife, after the receipt of the money from Brown, 
was possessed of means sufficient to supply her reasonable 
wants and necessities up to the time of the decree of divorce; 
the plaintiff knew that fact, and therefore had no claim to 
the defendant for the wife's board during that period ; but 
for the time prior to the receipt of that money, we think the 
defendant was liable. 

It will be seen that there was nothing in the case calling 
the attention of the Court to the materiality of knowledge 
on the part of the plaintiff that the wife had means of her 
own, and although the language of the Court might lead 
one to infer that some stress was laid upon the knowledge 
possessed by the plaintiff, it can not be said that the Court 
held it material, and that the decision would have been 
otherwise had the plaintiff been ignorant of the receipt of 
means by the wife. 



IN SPECIAL TERM, 1871. 39 

Smith V. Fletcher. 

An examination of the gronnds upon which the hnsband 
is held liable npon contracts made by the wife, for the snp- 
ply of necc^ssary articles, suitable to their means and station 
in life, will aid ns very much in determining the questions 
presented The hnsband is bound to support and maintain 
the wife, and to furnish her with necessaries, and the law 
presumes, that during cohabitation, the husband assents to 
contracts made by the wife, for the supply of articles suited 
to their means and station in life. The law presumes that 
in such cases, the husband makes the wife his agent, and it 
is because she is the implied agent of the husband that he is 
held liable on such contracts. Litson v. Brovm^ supra. 

This presumption of law may be rebutted ; it is not con- 
clusive. The presumption may be repelled in a variety of 
ways. Evidence showing the extravagant nature of the 
wife's order is properly admitted as tending to negative the 
husbands authority. Lane v. Ironmongery 13 M. & W., 368. 
The principles that lie at the foundation, therefore, of the 
law upon this subject, lead us to the following proposition. 
If the husband and wife are living together, or living 
separate and apart firom each other, under such circum- 
stances, that he is bound to support her, and he omits to 
furnish her with necessaries, (if they are living together, or 
if living separate, and she has not the means of procuring 
them), he makes her his agent to procure them ; if he sup- 
plies her properly in either case, she is not his agent. 

It is scarcely necessary to say, in view of these principles, 
which are abundantly sustained by authority, that it is not 
incumbent upon the defendant to show that the plaintiff, at 
the time of the purchases by the wife, knew that she was 
already supplied, or that he knew that she possessed sufficient 
means of support But there are several cases directly in 
point upon these questions. 

In the leading case of Mortague v. Benedict^ 3 B. & C, 
631, Justice Holroyd uses the following language : " When 



40 SUPERIOR COURT REPORTa 



Smith V. Fletcher. 



a tradesman takes no pains to ascertain Whether the neces- 
sity exists or not, be supplies the article at his own peril ; and 
if it turns out that the necessity does not exist, the husband 
is not responsible for what may be furnished to his wife 
without his knowledge." 

In the case of Seatan v. Eenedictj 52 Bing., 28, Chief 
Justice Best usees the following language : ^ It may be hard 
on a fashionable milliner, that she is precluded from supply- 
ing a lady without previous inquiry into her authority. The 
Court, however, can not enter into these little delicacies, but 
must lay down a rule that shall protect the husband from 
the extravagance of the wife." Many other cases could be 
cited in support of the same view — in fact, I have found 
none holding otherwise. Mizen v. Peck^ 3 M. & W., 481; 
Reeve et cU v. The Mayor of Covington, 2 C. & H., 644; 2 
Smith's Leading Cases, 488. 



i 



Non.~If the husband makes enitable proriBion for the wife, he ib not 
liable when she, without hit approbation, expressed or implied, andertakcs 
to pledge his credit, thoagh for what might otherwise be deemed neoessarics. 
Bishop on Marriage and Divorce^ Vol, I, page 553, { 553. 

'' Cohabitation !s presumptive evidence of the assent of the buaband " 
to being bound bj the wife's contract for "necessaries" for herself and 
family, but nothing more. And by the word " necessaries,'' as here used, is 
perhaps meant, those tbini^s which are prima facie such, not taking into 
account the matter of the husband's supplying, or failing to supply, the 
things insufficient profusion, by his own personal order; yet, if she obtains 
an over supply, whether from one trader or many, the agency will not be 
presumed. Ihidy J 556. 

Prenaned Agency: If the husband leaves for a temporary purpose the 
matrimonial habitation, and leaves house and effects in the care of his wife, 
there is a presumption, the precise ex tent of which varies with circumstances, 
and is not well defined in the law, that she has authority to deal with 
such property, and to pledge his credit. Ibid^ J 561. 

He is bound to fulfill the contract of his wife, when it is such a one as 
wives, according to the u?age of the country, commonly make. If a wife 
should purchhse at a merchani's store, such articles as wives in her rank in 
life usually purchase, the husband ought to be bound ; for it is a fair pre- 



IN SPECIAL TERM, 1871. 41 

Smith V. Fletcher. 

samptlon that she was authorized so to do by her husband. Reevet^ Darned" 
He Relatian$jpaff€ 158, 3d Ed. 

In seeking tor that point at which the husband's liability on the contracts 
of his wife for goods ceases, several circumstances are to be taken into con- 
sideration: 1. The standing of the parties in society as to wealth. 2. 
Whether the goods ftirnished were necessaries. 3. Whether the articles 
liimished were such as the wife was accustomed to contract for with his 
consent, or whether he Toluntarily received any benefit from the contract. 
In addition to this, it is sometimes necessary to consider the husband's 
williognees to furnish her with necessaries ; for if he is sought to be charged 
on the ground of his misconduct, or refusal to furnish them, other circum- 
stances must concur. What might be considered necessaries in one case, 
would not in another. {Montague t. Benedict^ 3 Bam. ^ 0re$9.) But if the 
husband permits his wife to assume a style, and appearance in life above her 
real station, he is liable for necessaries suitable to such apparent condition. 
Sunt V. DeBlanquier$, 6 Bing.^ 550. 

The husband is bound by his wife's contracts for necessaries for herself, 
when he refuses to provide them. This rests wholly on the ground of its 
being a duty in him to proyide necessaries for his wife, which the law will 
enforce. His consent is not necessary, and it can never be presumed in the 
case where he refuses to provide them for her. If he should turn her out 
of doors, and forbid all mankind from supplying her with necessaries, yet 
be would be bound to fulfill her contracts for necessaries. The case is the 
same if she depart from her husband with reasonable cause, and reftise to 
cohabit with him. Reevet on DomeitU Relatioru, page 160, 3d Ed. 

He must maintain his wife with necessaries, according to his rank in life, 
as long as she cohabits with him, and when she does not. If she have suffi- 
cient resson for refusing so to do; but if she depart without cause, he is not 
chargable with her contrscts for maintenance. Ibtd^ 161, and Note 1. 

But if the wife departs from her husband without cause, and without his 
consent, he will not be chargable. Manly v. Seott^ 1 Mod. Rep.^ 128. 

Those who trust a wife, who has separated from her husband, do it at 
their peril. They must look to the grounds of their separation. Billing v. 
PUeker, 7 B. Monr., 458, and 5 R. /., 343. 

If the husband and wife part by consent, and he secures to her a separate 
maintenance, suitable to his circumstances and condition in life, and pays it 
according to agreement, he is not answerable even for necessaries. Calkint 
V. Long^ 22 Barhour^ 97. 

But in an action against a husband, for goods supplied to his wife, living 
apart from him, the plaintiff must adduce some evidence of the circum- 
stances of the separation to show that the wife had authority to bind her 
husband for necessaries. (Edwarde v. ToweU^ 6 Scott, N. R, 641.) Where 
a party is especially forbid to furnish the wife, in order to make the bus- 



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1 OrtenU^, Em^ lUk £iL, p. 51, mnd mmUmiHn aUi. 



IN GENERAL TERM. 



Matilda Kemp, Appellant, v. Charles Dickson, Jambs C. 
Dickson, Wallace £. Dickson, and Charles 

Griffin, Appellees. 

Appeal from Blair, Judge. 

Debty ossigTifnenty admission — Husband and wife — Agency. 

Ao aaitgnment of a dtbt, carries with it all collaterals girtn to secure its 
pajmtnt. 



IN GENERAL TERBI, 1871. 43 



Kemp 9 Dickson «< tU 



Am mmigwaoMki of a note, '* wlthoat rMoarM," will not mImm th« eolUUral 

giyea to Mcnre tho poTaeat of the noU, oalots lo •tipolatod, at the tino 

of oMignment) and without such afroomant) tho laciiritj paiMt with 

ihonoto. 
A ptnon holdlBf eollatorals to locaro tho paTaoat of a dabt, holds them 

•imply as a spocial tnistoo. 
Whore a statement Is made bj the assignor, to tho agent of the assignee^ 

pending tho negotiation for the note, that he held a oertiflcate as oollat- 

oral for the secnritj of the payment of the aoCo, 
Mdd: Such an admimioa is competent in erldoaee to show notice to the 

assignee of snch secaritj, when he pnrehased the note. 
A husband who acted as an agent for his wife, in the transaction of her 

business, is not a competent witness in a suit brought bj tho wife, to 

prore the transactioits of such agency. 

N. B. Sf K Taylor^ for appellant 
MUchell Sf Ketcham^ for appellees. 

Rand, J. — This was a snit bronght by Matilda Kemp 
against Charles Dickson, James C. Dickson, and William E. 
Dickson. The complaint is in two paragraphs. The first 
alleges that plaintiff is the owner of a certificate of twenty 
shares of the capital stock of the Hydraulic Woolen Mills 
Company, of Colombns, Indiana, of the valoe of 91,000, of 
which the defendants have the possession without right 

The second paragraph is the same, in substance, as the 
first, with the further allegations, that on the same day 
plaintiff became the owner of said certificate, M. Kemp & 
Co. executed to defendants their note, at one day, for 
91,367 J$3, and that plaintiff and Mathew Wilson endorsed 
said certificate to defendants by collateral security for said 
note, with authority to sell the same at best rates, first 
advising M. Kemp & Co. of the amount that could be real- 
ized for it "^ And plaintiff further says that before any sale 
was made that defendants assigned the note, without 
recourse, to Charles Griffin, and defendants continued to 
hold said certificate, and that plaintiff had demanded the 



44 SUPERIOR COURT REPORTS. 



Kemp V. Dickson et oi. 



same of defendants, but they refused to surrender it, bat 
converted it to their own use." 

Defendants answered the first paragraph of complaint by 
a general denial, and also that said certificate was the 
property of Charles Griffin. There was a demurrer to this 
last paragraph which was overruled and excepted to. It is 
not now urged that the overruling this demurrer was error. 

Defendants demurred to second paragraph of complaint, 
but it was overruled and excepted to. Charles Griffin asked 
to be made a party, which was done, and he filed his answer 
and cross complaint, alleging that he was the holder of the 
note for 81,367.53, which had been assigned him by the 
Dicksons, on M. Kemp & Co.; that plaintiff, Matthew Wil- 
son, Joseph Green and Hiram Solend were partners, and 
composed the firm of M. Kemp & Co.; that said note is 
wholly unpaid ; that plaintiff, on the 12th of January, 1871, 
had assigned said certificate to his co-defendants, the Dick- 
sons, as collateral security for the payment of said note; 
that on the 20th of January, 1871, the Dicksons assigned 
said note and certificate to defendant, and that said Dicksons 
agreed to hold said certificates as defendant's agents. 

The Dicksons answer the second paragraph of the com- 
plaint, and Griffin's cross complaint, stating that they held 
the certificate as collateral security for the payment of said 
note, and that on the 21st of January, 1871, they assigned 
said note and certificate to Griffin, and that they now have 
no interest in said certificate, and bring the same into Court 
There was a general denial to Griffin's cross complaint, 
by plaintiff, and a reply in general denial to Dicksons' 
answer. 

The case was, at Special Term, submitted to Court for 
trial and judgment, and the Court found for defendant, and 
decreed that Dicksons should hold said certificate as collateral 
security for the payment of said note until it \yas paid, and 
a judgment for costs was rendered against plaintiff. 



IN GENERAL TERM, 1871. 46 

Kemp 9, Diekion et ml. 

From this decree there was an appeal by plaintiff to 
General Term. The evidence is all in the record. 

It is insisted that the finding of the Court was contrary to 
the evidence. We have carefoUy read it, and we are of 
opinion that the evidence sustained the finding of the Court 
below. The evidence shows, and, in fact, the second para- 
graph of complaint «ays, that the certificate of slock was 
transferred to the Dicksons as collateral security for the 
payment of said 91)367.53 note, and it claims that the 
transfer of the note to Griffin, without recourse on the 
Dicksons, entitled the plaintiff to a return of the certificate. 

There is some discreptmcy in the evidence as to what was 
said at the time of the assignment of the note, in relation to 
the certificate. 

No witness, however, says that Griffin released or aban- 
doned any rights he had to the certificate. The evidence does 
show that Griffin, before he purchased the note, was notified 
that Dicksons held the certificate as collateral for its payment. 

In PamUer v. Dovm^ 23 Barbour, 463, the Court say ; " It 
is entirely clear, that when a debt is assigned, the assignment 
carries with it all the collateral securities held by the assignor, 
for its collection, although they are not mentioned or referred 
to in the assignment — upon the ground that in such cases 
the securities are incidents to the debt, which is the principal. 
Hence when one holds a note or bond against another, 
secured by mortgage upon real or personal property, and 
afterward assigns the bond or note, or a judgment recovered 
upon it, to a third person, without any reference to the 
mortgage, the assignment of the debt, whether in its original 
form, or merged in a judgment, carries with it the mortgage. 
See also Langdon v. Boel^ 9 Wendell, 80. In this last case, 
the Court say, if, by special agreement, the security is not to 
pass to the assignee, then the mortgage is, by such agree- 
ment, ipso facto extinguished. But in the case at bar, as we 
have already said, there was no such agreement. 



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IN GENERAL TERM, 1871. 46 

Kemp V. Diekson ei al. 

From this decree there was an appeal by plaintiff to 
General Term. The evidence is all in the record. 

It is insisted that the finding of the Court was contrary to 
the evidence. We have carefully read it, and we are of 
opinion that the evidence suatained the finding of the Court 
below. The evidence shows, and, in fact, the second para- 
graph of complaint «ays, that the certificate of stock was 
transferred to the Dicksons as collateral security for the 
payment of said 91)367.53 note, and it claims that the 
transfer of the note to Griffin, without recourse on the 
Dicksons, entitled the plaintiff to a return oi the certificate. 
There is some discreptincy in the evidence as to what was 
said at the time of the assignment of the note, in relation to 
the certificate. 

No witness, however, says that Griffin released or aban- 
doned any rights he had to the certificate. The evidence does 
show that Griffin, before he purchased the note, was notified 
that Dicksons held the certificate as collateral for its payment. 
In Parmler v. Dotrnij 23 Barbour, 463, the Court say : '' It 
is entirely clear, that when a debt is assigned, the assignment 
carries with it all the collateral securities held by the assignor, 
for its cx>llection, although they are not mentioned or referred 
to in the assignment — upon the ground that in such cases 
the securities are incidents to the debt, which is the principal. 
Hence when one holds a note or bond against another, 
secured by mortgage upon real or personal property, and 
afterward assigns the bond or note, or a judgment recovered 
upon it, to a third person, without any reference to the 
mortgage, the assignment of the debt, whether in its original 
form, or merged in a judgment, carries with it the mortgage. 
See also Langdon v. Boel^ 9 Wendell, 80. In this last case, 
the Court say, if, by special agreement, the security is not to 
pass to the assignee, then the mortgage is, by such agree- 
ment, ipso facto extinguished. But in the case at bar, as we 
have already said, there was no such agreement. 



46 SUPERIOR COURT REPORTS. 

Kemp V. Dickson ei tiL 

It seems clear to us that the security passed to the assignee 
of the note. 

It is further urged that the evidence shows that the Dick- 
sons held this certificate as special trustee. This is true, but 
so does every party, who holds securities as coilateralsi to 
secure the payment of a debt 

At the trial the plaintiff introduced as a witnessi David 
Kemp, who was the husband of plaintiff, and offered to prove 
by him that plaintiff was the owner of the certificate of stock 
in controversy — that he, as agent of plaintiff, transacted 
the business with the Dicksons, plaintiff not being per* 
sonally present — that before the eoramencement of this 
suit, he, as plaintiff's agent, demanded said certificate 
from the Dickson's, which they refused to surrender, giving 
no reasons therefor, and that in conversation with them, 
they said they had sold the said note without recourse, but 
they had made no sale or transfer oJf said stock, and had not 
agreed for any such sale or transfer in the sale and assign- 
ment of said note, which was objected to, and the objec- 
tion was sustained and properly excepted to. 

This presents the question whether a husband, when he 
acts as agent for his wife, in the transaction of her busineaSi 
is a competent witness for the wife, in a suit by the wife, to 
prove the transactions of such agency. 

We find in the Statute (2 G. & H.) the following clause: 

Sec. 240. Husband and wife are incompetent witnesses, 
for or against each other, and they can not disclose any 
conversation from one to the other, made during the existence 
of the marriage relation, whether called as a witness, while 
that relation exists, or afterward, &c. 

This is a plain provision of the statute, and can not be 
controlled by the rule laid down in Starkey on £bi* 
dence^ on pages 139 to 143. Moreover, the view we 
have already taken of the law, would render this evidence 
immaterial. 



\ 



IN GENERAL TERM, 1871. 47 



Kemp V. Diokfon el aL 



It is also urged that the Court erred in permitting Mr. 
Dickson to testify that he told Griffin's agent, pending the 
negotiations, and when he purchased the 91)367.53 note for 
Griffin, that the Dicksons held the certificate of stock in 
controversy as collateral for the security of the payment of 
said note. 

We think this was important for the purpose of showing 
that Griffin bad notice that there was such security when be 
purchased the note. 

The judgment is affirmed. 



NoTK. — JcAnifnafw— DeclAimtions of an assignor, of a personal contract, 
or chattel, if made while the assignor remained in possession, aUhongh after 
the execution of the assignment, are admissible in evidence to characterize 
the transaction. 10 N, T. Ct. Appt^ 309. See also 1 Oreenleaf J^., I2th 
Ed^ p. 218, «l seg amd notes. 

The admission of distinct facts, during negotiation for a settlement, are 
always competent OTidence against the party making them. Ct, Appg, 1864, 
1 Keyes^ 495. 

The admission of a party should be received with caution, but the Court 
will not interfere with the finding of a jury, on such testimony. 2 y, T, 
Leg. Obi., 330. 

Admissions or declarations are competent evidence against parties where 
parol evidence of the (kcts sought to be shown by such would be compe- 
tent. AS Barb., 15a 

The admissions and declarations of an agent are admissible against his 
principal only, when they are made at the time of the transaction. 2 N, F., 
QhU R^ 31. 

The declarations of an assignor, for the benefit of creditors, made after 
the assignment, and while in possession of the assigned property, as to the 
object of the assignment, are admissible sgainst the assignor, and those 
claiming under the assignment. 10 N, F., 6 Seld., 309. 

AewignmenU — Vested rights ad rem, and in re, and possibilities coupled with 
an interest, and claims growing out of and adhering to property, may pass 
by assignment. 1 Petere., 193. 

Debt — Where collateral security is given to secure the payment of a 
debt, equity will consider such security a trust, created for the better proteo- 
of the debt Burroughs v. UniUd StaUs, 2 Pa,, 569, S. P.; United StaUi 
T. Stinrges, 1 Pa., 626. 



48 SUPERIOR COURT REPORTS. 

Woodburn Sarren Wheel Compaoy «. McKernan. 

Buibind and wife — Agency — It makeii no dtifrrence, at what time th* 
relation pf husband and wife eommemeed, the principle of txclusion being 
applied in iu foil extent, wherever the interests of either of them are direct! j 
concerned. 1 Oreenleaf Hv,, I2th Ed., p. 390. 

The husbaod can not bn a witness for or against his wife, in a qnntion 
touching her separate estate, even though there are other parties, in respect 
of whom he would be competent. Same, 393, and iee autkoritiee cited. 

But where the interest is contingent, and uncertain, he is admissible. 
Eiehardion t. Learned^ 10 Piek.^ 261. See/urther Reevet^ Dom, BeL, p, 29S, 
andnotee. 



»♦♦■ 



IN GENERAL TERM. 



WooDBURN Sarven Whrel Company t;. James H. Mc- 

Kernan, Appellant 

Appeal from Niwcomb, Judge. 

Transcript from Justice^ s Cou/rt — Certificate of Justice — Affi» 

davit — Misnomer — Execution^ how impeached^ 

sales under., when valid, 

A certificate ot a Justice of the Peace, that **the foregoing is a true, correct, 
and complete transcript from mj docket, of the proceedings and judg- 
ment," complies with the statute. 

Such transcript need not set out the summons issued in the cause; it is suffi- 
cient, if it sets out the fact that a summons was issued, aod shows a 
return of the same. 

Where, in the caption of an affidavit for an execution upon a transcript of ft 
judgment rendered before a Justice of the Peace, the name '* Morris" 
is written for "Morrison," if all the facts are set forth in the body of 
the affidaTit, thus enabling the Clerk to place it on file, and attach it to 
the transcript upon which it is made— 



k 



IN GENERAL TERM, 1871. 49 



Woodbam Sanren Wheel Company «. McKermui. 



Held: That the misnomer in the caption was not inch as to mislead anyone 

and render subsequent proceedings and sale void. 
A sale under a Toidable execution is Tilid. even to a purchaser, with notice 

of the facts, where there is no fraud shown. 
An execution, at most only Toidable, oau not be avoided in a collateral suit, 

by one wto is not a party to it. It must be by direct proceedings, by a 

person in position to impeach its Talidity. 
An iffidaTit, and execution issued upon it, are admissible in CTidence, 

the former to show authority for the issuance of the execution, and the 

latter, for the sale under which the purchaser acquires title, as well as 

to show justification for the party acting under it. 

Blair, J. — The plaintiff, in her complaint, says that she is 
the owner in fee simple, and possessed of certain real estate, 
and that the defendant unjustly claims title to said premises 
in fee, wherefore the plaintiff asks that the title may be 
settled and quieted. 

The defendant answered by a general denial. The cau^e 
was tried at Special Term, and judgment and decree that 
title was in the plaintiff. The defendant moved for a new 
trial, which motion was overruled, and appeal granted to 
Greneral Term. 

The real estate in question was conveyed on the 21st day 

of May, 1862, by the defendant, James H. McKernan and 

his wife, to one James P. Morrison, and was afterward levied 

upon, and sold by the Sheriff, on an execution issued on a 

transcript of a judgment recovered before a Justice of the 

Peace, W. W. Leathers, Esq., the assignee of the judgment 

becoming the purchaser, to whom it was conveyed by the 

Sheriff, on the 15th day of May, 1868, and through whom 

the plaintiff claims title. The transcript of the judgment 

before the Justice was filed in the office of the Clerk of the 

Common Pleas Court, on the 17th day of November, 1866. 

It appeared in evidence, that on the 21st day of May, 1862, 

James P. Morrison mortgaged the real estate to the defendant, 

James H. McKernan and Winslow S. Pierce, and on the 

14 th day of October, 1864, the mortgage was endorsed by 

them upon the record, ^ Fully paid and satisfied." On the 
4 



60 SUPERIOR COURT REPORTa 

Woodbom Sarren Wheel Company «. MeKernan. 

17th day of June, 1868, a suit having before that time been 
instituted in the Common Pleas Court of Marion Coontyi 
by McKernan & Pierce, a decree was rendered finding that 
the satisfaction of the mortgage on the 14th day of Octoberi 
1864, had been entered by mistake, and decreeing a foreclo- 
sure of the mortgage. James P. Morrison was the only 
party made defendant to these proceedings. On this decree 
the property was afterwards sold by the Sheriff^ and convey- 
ance made to the defendant 

On the trial of the cause, the transcript from the Justice of 
the Peace was offered in evidence by the plaintiff, to the 
introduction of which the defendant objected, urging in 
support of the objection, that it did not show the full pro- 
ceedings, and does not set out the summons issued in the 
cause. 

The form of the docket entry of the judgment, and of the 
proceedings in the cause, comply with the requirements of the 
statute, and is even fuller than the form given in the statute, 
(2 O. & H., p. 614, form 10, and Sec 18, p. 518, lb.,) and 
the certificate of the Justice is in the usual form. It is true, 
the judgment was taken by default, but the entry sets out 
the fact that a summons was issued, and shows the return of 
the same in full. The case of Taplor v. McClure et eU^ 28 
Ind., 39, is a case precisely in point, and decides this ques- 
tion adversely to the defendant 

In the case cited by defendant. Brown et al v. McKa^^ 16 
Ind., 484, the transcript professed to set out the judgment, 
and issuing and the return of an execution nuUa tono, 
and the form of the certificate was as follows : *< The fore- 
going is a true and complete transcript of the judgment 
from my docket," and it was held that the certificate did not 
cover the proceedings on execution, even if it included the 
proceedings prior to judgment The certificate of the Justice 
in the case under consideration is as follows : ^ The foregoing 
is a true, correct, and complete transcript from my docket, of 



IN GENERAL TERM, 1871. 51 

Woodbnm Sarren Wheel Oompuij «. McKernaa. 

ibe prooeedfaigs and jodgment^" and the ca^e cited does not, 
thereforei siutain the position of the defendant We think 
the transcript was properly allowed in evidence. 

The next objection taken was to the introduction, in 
evidencCi of the affidavit of Mr. Leathers, apon which the 
execution issued. The title of the cause, as stated in the 
caption of the affidavit, is as follows : ^ Bobert L. Walpole 
V. James P. Morris!^ The judgment set out in the transcript 
is correctly described in the body of the affidavit, and in the 
execution, and all subsequent proceedings, as shown in the 
evidence. The certificate of the Justice, showing the issuing 
of an execution, and the return of the same, is properly 
entitled, and bears the same date of the affidavit, and they 
seem to have been filed at the same time with the Clerk, and 
by the Clerk received and acted upon, as in the case of 
Walpole V. James P. Monisot^ and placed on file with, 
and attached to the transcript in said cause. We can not 
believe that the misnomer in the caption of the affidavit was 
such as to mislead any one, or render the subsequent pro- 
ceedings and sale void. 

There is another view of the case, which we deem conclu- 
sive. The affidavit is required for the purpose of informing 
the Clerk that the judgment is unpaid, and, together with 
the certificate of the Justice, constituted the authority of the 
Clerk to issue execution, and is analagous to the former 
proceedings by scire faciasj and the more recent proceedings 
to procure execution, after the lapse of five years, and it has 
been settled that an execution issued after the lapse of the 
time limited, and without revival can not, for that ground 
alone, be avoided in a collateral suit by one who was not 
a party to it — ^^Mt is voidable only at the instance of the 
party against whom it issued, and that until set aside it is a 
justification for the party acting under it." Doe v. Harter 
1 Ind., 427, and authorities there cited. A sale under a 
voidable execution is valid, even to a purchaser with notice 



52 SUPERIOR COURT REPORT& 

Woodbom Saryen Wheel Company «. McKernaD. 

of the facts, where there is no fraud. Doe v. DuUen, 2 Ind^ 
309. See also upoD the same points, Doe v. Harter^ Ibid, 252. 

We can not, therefore, regard the mistake, for such we 
think it clearly was, of the name in the aflidavit material, 
and it was therefore properly admitted in evidence. 

According to the view above taken, the execution was* 
also properly admitted in evidence ; for to give the fullest 
force to the objections of the defendant, it was at most only 
voidable, and could only be avoided by a direct proceeding, 
and the defendant is not in a position to avail himself of the 
defects, if any existed. Having lost his lien, as against the 
holder of the judgment on the transcript, by the entry of 
satisfaction of his mortgage upon the records, we see noth- 
ing in the proceeding Or judgment of which he can complain; 

Judgment affirmed. 



Dye Sf Harris^ for appellant, cited the following : 

A judgment plaintiff pnrchasing at Sheriff's sale, it chargeable with 
notice of all irregularities in the sale, and his Tendee, with Dotiee of the 
the record. Piel ▼. Brayer et al^ 3 Ind., 333. 

And the objection may be made in ejectment. Sherry t. Niek ^ Hu 
Woodt^ 1 Ind., 575, and oases cited in the Blackfords. 

And if in ejectment, there, bj paritj of reason, the same objection may 
be made in a suit to quiet title, which, by statute, is governed by the same 
rules. 2 G.i H^ 284, K ^l^ <^nd 612. 

In Sheldon ▼. Arnold, 17 Ind., 166, it is conceded that aa affidavit i» 
neceaeary. 

In Brown t. McKay y 16 Ind., 484, it is held, a certificate must be filed to 
warrant the issuing of the execution. And where there was bo proper 
certificate, it is said to h&ve been ^'improvidently issued, being thus baaed 
upon an imperfect record, the sale was thereby rendered inralid.'' 

This seemr to be decisive of the case. In this case (16 Ind., 484) thr 
transcript contained the statement of execution, and return, but the certifi- 
cate only covered the judgment, and it was held as above stated. 

That was as much of a *^ clerical error *' as in the case at bar, and no title 
passed. 

See Williams v. Cbse, 14 Ind., 253 : that execution it the beft evide not, 



IN GENERAL TERM, 1871. 53 

Woodburo Sarren Wheel Compaoy v. McKeman. 

jet we claim nothing on these points. We hold this execution was not 

warranted, and henoe no title passed. 

• •••••••• 

There is great difference between erroneous and irregular (or Toid) pro- 
cess. The first stands valid, and good, until it is reversed ; the latter is an 
obMoluU nuUit^j from the beginning, ^ * and he can not justifj under it, 
because it was his own fault, that it was irregular and void at first. 3. 
John., (N. Y.), 523; 1 Cowen, on page 735. 

The case of Letgit ▼. PhiUipt^ 17 Ind., 108, holds, a Clerk can not issue 
without plaintiff's direction, «&c. But we do not rest this cnse on that 
principle. We hold that the execution could not issue until a proper affidavit 
was filed. 

The transcript could olIj show jurisdiction by the summons, and return, 
where there was no appearance. 26 Ind., 441 

In CUney. Oibton^ 23 Ind, II, the judgment set out that ^*the defendant 
had been duly served," &c., but did not set out the summons. The Court 
held, it did not show that jurisdiction had been acquired. 

In 26 Ind., 319, the 23 Ind., 11, is affirmed, holding that the introduction 
of the judgment, without a transcript of the '* record of the proceedings,'* 
showing jurisdiction, &c., was not sufficient. We hold then : 

Firtty No proper affidavit was filed, and hence the execution was void. 

Second, That no proper transcript was filed or introduced in evidence. 

Hanna 4* Kneffler, for appellee. 

Sections 539, 640, 641, 2 O. i If., 267, embrace the provisions of the 
statute upon the transfer of judgments obtained before Justices of the 
Peace, to the Court of Common Pleas, to make the same liens upon real 
estate, and also the necessary steps to procure the issuing of executions upon 
such transfered judgments. • » ♦ » 

The point attempted to be maintained by appellant is, that the affidavit 
required by the provision of Section 541, is defective in this, that in the 
caption it describes "James P. Morris" as judgment defendant, when it 
should have described " James P. Morrison." We submit, that at must, it 
can be said, this is a clerical error, and this is in effect cured by tho subse- 
quent recital of the facts in said affidavit. The affidavit clearly sbowi the 
date, the amount of recovery, etc., the Court before whom rendered, also 
the filing of said affidavit with the other papers in said cause, transmitted 
by the Justice to the Clerk of the Court of Common Pleas. It further 
appears, and it is patent that the mistake refered to did not mislead the 
Clerk in the issuing of the execution, that the same was issued in the 
proper cause, and that all proceedings subsequent, the levy, advertisement, 
sale, and coaveyance by Sheriff, were all against ** James P. Morrison," and 
not '* Morris." 



54 SUPERIOR COURT REPORTS. 

Locke •. MaBMMi. 

The decisions of Ike Sapreme Court in 16 aod IT Indiana kave bo benring 
apon the point inToWed in this cnnse. The points held there nre npplioshle 
to defectiTe eert^ficaieMf and not the siBdaTit in snch proceedings. 

The aiBdavit is the proenring cause for the issuing of an azeention upon 
Ja'^gmeats transfered from Justices of the Peace to the Ooori of Oommoa 
Pleaf e, of the same nature as pnse^ in ordiaarj eanees. It if the stata» 
tory mode proTided in such 



IN GENERAL TERM. 



JosiAH Locke v. David MtiNsoifi Appellant 

Appeal from Ruid, Judge. 

Prayer for Specific Performance. 

Defendant, as owner of certain " Letters Patent,*' agreed to convey, and 
assign to plaintiff; all right, and title in and to said " Letters Patent,** 
together with the owoersbip of the same for anj extensk>n of said 
Patent, in cerUin Sutes and Territories, stipulating that plaintiff should 
pay one-half of the cost, including labor of any extension of Patent, 
• ^ if he desires to use said ezveosion* Plaintiff demands couTcy- 
ance, alleging pro rata payment of expenses. 

Defendant answers, Firsi^ General denial ; Second^ By connter claim " for 
labor and eipenses incurred in procuring extension." 

Defense offered in eridence the original assignment of the Patent, by the 
defendant to the plaintiff, claiming that under this assignment he had 
already complied with the terms of the agreement to convey. 

Held: That assuming it to be true, that this instrument would hare shown 
compliance by defendant with the terms of his agreement, aa set out in 
the bill, it was not admissible under the general issue. 

Pteading^ when ghouid b$ tpeoiaL^ AW defences, which admit a snfflcient 
oontract, or cause of action^ but afoid it by subsequent matttr^ or shaw 



IN GENERAL TERM, 1871. 55 

Locke V Hanson. 

that the cause of action has been discharged by payment, or perform- 
ancf*, shonld always be specially alleged in answer. 

Afuwer, ikould be sped/ie. — The complainant, in a proceeding of this char- 
acter, has a right to be informed by the answer, not only of the facts to 
be proTfd, but of the tue intended to be made of them, and of the 
nature of the oondnsions intended to be drawn. 

Though it is neeessnry to allege in the complaiot that an agreement sued on 
has not been performed, this fact need not be proved by the plaintifT. 

Exe^tunu — not taken to condasioos of law, below will not be considered 
on appeiil. See Ottrier t. Augtuta Qravel Road Co. Ante, 

Finding, eogU in. — Upon issues joined, where the finding is for both partiee, 
the Court may render separate judgments for costs upon each issue, in 
favor of each party. 

Dye Sf Harris^ for plaintiff. 

Morrow Sf Trusler^ for defendant (appellant). 

Blair, J. — The plaintiff in this case, by his bill, seeks the 
aid of the Court to compel the specific performance of a 
contract. 

On the 6th day of February, 1866, the defendant being 
the owner of certain-letters patent, of date the 5th day of 
August, 1856, for an improvement in lightning rods, known 
as ^ Munson's Tubular Lightning Rod with Spiral Flanges," 
made an agreement in writing, with the plaintiff, by which 
he agreed to convey and assign to the plaintiff, all right and 
title in and to said letters patent, << together with the owner- 
ship of the same for any extension of said patent," in 
certain States and Territories. In the same agreement, it 
was stipulated that the plaintiff should pay '' one-half of the 
cost, including labor, of any extension of patent," &c., * 
* * if he desires to use such extension. 

The bill sets out a copy of the agreement, and alleges that 
the patent has been extended to the defendant for a period 
of seven years from the 6th day of August, 1870, and that 
the defendant now holds said extension, and that the plain- 
tiff desires to use the same, and has so informed the 



56 SUPERIOR COURT REPORTS. 

Locke V. Munaoo. 

defendant, and demanded a conveyance, and that he has 
paid certain portions of the expenses incurred in procuring 
the extension, as demanded by the defendant, and he is 
ready and willing to pay the residue, and tenders the sum of 
fifty dollars, and prays that an accounting may be had of the 
expenses, and that on payment of the same the defendant 
may be compelled to convey, &c. 

The defendant filed an answer in two paragraphs; the 
first, a general denial, and the second, a counter claim for 
labor and expenses incurred in procuring the extension of the 
letters patent. 

The cause was tried, and the Court rendered a special 
finding of the facts and conclusions of law ; and a decree was 
entered, requiring the plaintiff to pay into Court, for the 
defendant, one hundred dollars, and on the payment of the 
same, the defendant was required to execute a conveyance 
of the letters patent, as prayed for, &c. 

A motion for a new trial was made by the defendant, and 
overruled by the Court, and the defendant appealed. 

The defendant, at the trial, offered in evidence the original 
assignment of the patent, by the defendant to the plaintiff, 
dated February 6, 1866, to the introduction of which objec- 
tion was made, and tde evidence was excluded by the Court 
This is the first error complained of. It is claimed by the 
appellant that the conveyance or assignment offered in 
evidence showed that the defendant had already conveyed 
the patent right for the time for which the letters were 
extended, by virtue of the clause in the conveyance or 
assignment, providing that the plaintiff shall possess the 
same, " to the full end of the term for which said letters patent 
are or may be granted^ and that it was competent evidence 
to show that the defendant had already complied with the 
terms of his agreement to convey, and should have been 
admitted under the issues joined. Assuming it to be true, 
that the instrument offered in evidence would have shown 



IN GENERAL TERM, 1871. 57 

Locke V. If unsun. 

• 

that the defendant had already complied with the terms of 
his agreement, set out in the complaint, the position of the 
defendant, that the evidence was admissible under the 
general issue, is not tenable. 

^ Every matter of fact which goes to defeat the cause of 
action, and which the plaintiff is not under the necessity of 
proving, in order to make out his case, must be alleged in 
the answer." Baker v. Kisilerj 13 Ind., 63; Hubler v Pullen^ 
9 Ind., 273. Although it is usual and necessary to allege in 
complaints that the debt is due and unpaid, or that an 
agreement sued on has not been performed, these are facts 
that need not be proved by the plaintiff. 

All defences which admit a sufficient contract or cause of 
action, but avoid it by subsequent matter, or show that the 
cause of action has been discharged, by payment or per- 
formance, should always be specially alleged in answer. 
Van SantvoorcPs Pleadings^ 469 and 470, Second Edition. 

The complaint in this case is in the nature of a bill in 
equity, and the rule in such cases was, that the complainant 
had a right to be informed by the answer, not only of the 
facts to be proved, but of the use intended to be made of 
them, and of the nature of the conclusions intended to be 
drawn. Barbour's Chan. Pr.^ 137. 

The evidence offered was therefore properly excluded. 

The next error assigned is, that the Court erred in finding 
that the defendant's labor, in procuring the extension of the 
patent, was only worth two hundred dollars, it being claimed 
that the evidence showed it to be worth much more. The evi- 
dence does not disclose very definitely the amount of labor per- 
formed. It seems to have consisted mainly in writing letters, 
and procuring certain statistics and affidavits, and was of 
such character as to create much uncertainty in the estimates 
put upon its value by the witnesses. 

There is no glaring deficiency in the amount found by the 
Court, and it is also true, that it might have been larger, 



58 SUPERIOR COURT REPORTS 

Locke V. Muaton. 

without striking one as exorbitant onder the evidence, but 
the rule is not to interfere with findings ini such cases, and 
we see no occasion to vary from the general rule in this case. 

The third and fourth error alleged, embrace the same 
matter as the second, and need not be further noticed. 

The fifth error alleged, is in rendering a decree requiring 
an assignment of the letters patent, and the seventh alleges 
error in the special finding and conclusions of law. As no 
exceptions were entered to the conclusions of law, these 
questions are not properly presented for review. The OUjf 
of Logansport v. Wright^ 25 Ind., 512 ; Peden^ Adair^ v. Kimg^ 
30 Ind., 181 ; Carter v. The Augusta Gravel Road Go^ in 
this Court 

The defendant filed a motion to tax the costs in the case 
to plaintifE The motion was overruled, and the Court 
ordered one-half of the costs to be taxed to each party. 
The overruling of the plaintiff's motion is assigned for error. 
There being two issues joined in the cause, one of which 
was found for the plaintiff, and one for the defendant on his 
counter-claim, it was within the power of the Court to ren* 
der separate judgments for costs upon each issue, in favor of 
the party recovering. Sidner v. Spantghj 26 Ind., 317 ; 2 O. 
& H., Sec. 400, p. 288. We think, therefore, a proper judg- 
ment for costs would have been, that the plaintiff recover of 
the defendant the costs arising upon the issues joined in the 
complaint, and that the defendant should recover of the 
plaintiff the costs accrued upon the issues joined in his 
counter-claim. 

The judgment is therefore affirmed as to all things except 
costs, the judgment for which is modified, to conform to this 
opinion. 



IN GENERAL TERM, 1871. 09 



Brennan •. Luoklear. 



IN GENERAL TERM. 



Julia Brbknan and Patrick Brbnnan i;. Jbhro Lucklear. 

Appeal from Blao, Judge. 

Appeal — Statutory exceptions to rule in — Restraining order. 

An iqypeal doea not lie from an order setting aside a tempovarj restraining 
order. 

Wallace — Heller^ for appellee. 

Test^ Bums Sf Wright^ for appellants. 

Newcom B, Jd — The plainti£& appealed from an order made 
by Judge Blair, setting aside a restraining order made by 
him on the ex parte application of plaintiffs, before the time 
had expired for which the restraining order had been granted. 
The defendant has interposed a motion to dismiss the 
appeal, on the ground that the order was not one from which 
an appeal lies to the General Term. 

The 25th Section of the Act organizing this Coart, pro- 
Yides for an appeal to the General Term from the decision 
of a single Jadge, and those cases only, where, if the decision 
complained of had been rendered by the Circuit Court, an 
appeal would lie from that tribunal to the Supreme Court. 

It is a general rule of practice that an appeal does not lie 
from an inferior to the Supreme Court, except from a final 
judgment of such inferior court The only exceptions to 
this rule are made by the statute. 

Among those excepted cases is an interlocutory order, 
<^ granting, or dissolving, or overruling motions to dissolve an 
injunction interm^ 9JiA granting an injunctioa in vaciUionJt* 



60 STJPERIOH COURT REPORTS. 

Sohl et al v. Oiesendorf et oL 

2 G. & H., 277, Sec 576. It seems to me a clear proposition, 
that this appeal dees not come within the above exceptions 
to the general rule, that an appeal lie only from a final 
judgment 

The restraining order was not an injustice, consequently 
the defendant could not have appealed from that order, vide 
Cincinnaii Sf Chicago R. R, Co. v. Huncheon and another, 
16 Ind., 436. 

The order dissolving the restraining order was not appeal- 
able for two reasons : First, it was not the dissolution of an 
injunction, for no injunction had been granted. Second, The 
order was not made in term, but in vacation. 

The case does not come within any exception laid down 
in the statute, and we have no power to legislate to cover 
such cases. 

The defendant's motion is therefore well taken, and the 
appeal must be dismissed. 



IN SPECIAL TERM- 



Levi Sohl et ai v. James C. Geisenborf et aL 
Application for injunction for infringment of Tirade Mark. 

A partj purchasing part of a trade mark, and adoptiog the balance, will 
be protected in hin title to the former, as well as the latter. 

The use of some word, letter, or character, of a trade mark, by differeat 
parties, without hindrance, will not work an abandonment bj him in 
whom its right 4>f use, and title is vested. 



^ 



IN SPECIAL TERM, 1871. 61 

Sohl ettUv. Geisendorf H al. 

A trade mark composed of sueh devices as denote simply, quality of an 
article, will be protected^ especially if it is once established. 

It is an infringeqient of a trade mark, even though the imitation and 
original, when placed side by side, would not mislead, if the similarity 
is such that a difference would not be noticed when seen at different 
times or places. 

Oordony Browne Sf Lamb, for plaintifTs. 
Taylors, MUcheU Sf Ketcham, for defendants. 

Rand, J.— *This is an application for an injunction, enjoin- 
ing the defendants from using a trade mark, which plaintiffs 
claim belongs to them. 

It appears from the affidavits filed, that in 1859 James L. 
& Walter N. fivans were partners and millers at Noblesville, 
and employed one Roberts, of New York city, to get them 
cip a brand or trade mark yirith which to mark a certain grade 
of flour whiclr they manufactured. Roberts got up one, 
some of the distinctive features of which were the words, 
•* White Rose Mills," " Snowflake," a double row, and the 
word "Family" — and perhaps "Flour" — which the Evans 
adopted and used until they sold out their mill, in 1861, to 
Nathan Sohl and John L. Wild, and transfered to them 
said mill and its appurtenances, including the said trade 
mark or brand.' 

Nathan Sohl and Wild carried on said mill, and used said 
trade mark, and afterwards sold an interest in the mill and 
business to Levi Sohl, and the business was carried on in 
the name of Sohl, Wild ic Co., who continued to use said 
brand or trade mark. 

In 1864 said firm of Sohl, Wild & Co., purchased a mill 
in Indianapolis, and continued to mn both mills, using said 
mark or brand at both. About this time Alfred I. Sohl 
became a partner, and at this time, or perhaps some time 
previously, the trade mark was added to or changed, so as to 
appear as the exhibit, filed with the complaint, marked "A," 



62 SUPERIOR COURT REPORXa 

Sohl et dl 9. Gvisendorf tt al. 

except the firm name ^as afterward changed as hereinafter 
stated. David Gibson also became a member of the firm ; 
Nathan Sohl sold ont his interest and withdrew ; the firm 
name was changed to Sohl, Gibson & Co.; their name, 
^ Sohl, Gibson & Co." was inserted in the brand or trade 
mark, in place of the old firm name, and said last mentioned 
firm have continued to use the said brand or trade mark ever 
since. In 1870 they sold the mill, in Noblesville, back to 
the Evans, but they have continued to run the mill, and use 
said brand or trade mark at Indianapolis, and are still 
doing so. 

The defendants have a mill at Indianapolis, and are using 
the brand or trade mark *^B," exhibited in the complaint, 
upon their flour, and are selling the flour throughout the 
country. 

The defendants resist the application for an injunction 
upon the following grounds : 

Firstj That plaintifls never had an exclusive right to the 
trade mark they use — in fact never owned it. 

Second^ If plaintifls ever owned said trade mark, and had 
nn exclusive right to it, they have abandoned such exclusive 
right by permitting other parties to use it. 

Third, That said plaintifls' trade mark is composed of 
such letters, words, or characters as denote the quality of the 
article to which they are aflixed, and therefore can not be 
the subject of an exclusive trade mark. 

Fourth, That defendants obtained from Nathan Sohl, one 
of the former proprietors of said trade mark, the right to 
use it. 

Fifthj That there is such a dissimilarity between the trade 
mark of plaintifls, and the one used by defendants, as to be 
no infringment of plaintifls' mark. 

We will briefly notice these several propositions in their 
order : 

Firstj As to plaintifls' exclusive right It appears from the 



"V 



IN SPECIAL TERM, 1871. 83 



Sobl «!«!•. Qeisendorf €i nL 



affidavits on file, that, at least a part of said, trade mark was 
used by the Evans in 1860 ; that it was transfered to their 
soccessors in the mill property and bnsiness in 1861, and has 
been handed down, or transfered to the several firms that 
have succeeded the Evans, until about 1864, when the trade 
mark now in use, and made exhibit '* A" in plaintiffs' com- 
plaint^ was adopted and used by plaintiffs under the different 
firm names which have succeeded each other. Each firm 
appears to have succeeded to the rights of its predecessor. 
The authorities establish the proposition that a trade mark 
may be devised and adopted by the party himself, or he may 
acquire it by purchase from his predecessor. The mode by 
purchase is as effectual as any other, and Courts will go as 
far to protect such trade mark as if the party devised and 
adopted it I hold that the plaintiffs have shown a good 
title to the trade mark they use, if it should be held a trade 
mark at all. I know of no reason why a party can not 
purchase a part of a trade mark and devise and adopt the 
balance. 

See Millifigtan v. FoXj 3 Myl. and Cr. ; The Joseph Dixon 
Crucible Cb., v. Mepr Gaggin/iien, 3 A' srican Law Terms, 
288 ; Craft v. Day, 7 Beavan, 84 ; Tilly v. Fassetj 17 American 
Law Reg., 402 ; Coffin v. Branlon^ 4 McLean, 516. 

Second^ As to plaintiffs having abandoned the mark. There 
is no evidence showing that other persons, than the plain- 
tifis, their predecessors, and the defendants, have used the 
plaintiffs' trade mark in its present or previous forms, unless 
the Evans did after they bought back the Noblesville mill in 
1870, and if they did, it was without the plaintifid' consent, 
and at their request the Evans abandoned its u»e. 

It is true that there is evidence that different parties have 
used at various times, some word, letter, or character, which 
composed the plaintiffs' entire mark ; but I do not think this 
is sufficient to establish an abandonment of their mark by 
plaintiSs. Many of the authorities bold that the deiEense 



64 SUPERIOR COURT REPORTa 

Sohl ei al 9 Geiseodorf et oL 

that others have pirated the same mark, is only an aggrava- 
tion of the ofibnce. 

Thirdj As to the mark indicating quality, and therefore 
not entitled to protection. I find some authorities that hold 
that there can be no exclusive right to a trade mark, which 
only denotes the quality of the article manufactured. I 
believe, however, the weight of authority is the other way. 
The later, and it seems to me the better authorities, establish 
the proposition that a trade mark may be composed in part, 
if not entirely, of words, letters, and characters, that denote 
the quality of the article. 

If a trade mark is once established, I hold, whatever its 
design, it will, to some extent, necessarily indicate to the 
public the quality of the article. But if I am mistaken in 
this, still I am of opinion that the plaintiffs' trade mark does 
designate much more than the simple quality, or quantity of 
the flour in the barrel, and therefore is entitled to protection 
from infringement. 

See Clark v. Clarkj 25 Barbour, 76 ; also 416 ; 47 Barbour, 
455 ; Sextan v. Provigendo^ 1 Ch., Appeal Cases ; Co(Us v. 
Holbrooke 2 Sanford's Ch. Reports, 586, and notes and 
authorities cited. 

Fourthj As to the defendants' claim of right under Nathan 
Sohl. The defendants claim to have obtained, from Nathan 
Sohl, one of the former proprietors, the right to use the 
plaintiffs' trade mark. Nathan Sohl had sold out his right 
to said trade mark to his partners, before the defendants 
claim to have obtained the right from him. He could not 
confer on the defendants a title he had previously parted 
with. This is too plain for argument, or to need authority. 

Fifthj As to the similarity of the two marks. The exhibits 
of plaintiffs' and defendants' trade mark, set out in the com- 
plaint as exhibits <' A" and *' B," have certainly a striking 
resemblance, and in the opinion of the Court, the defend- 
ants' is well calculated to deceive the general purchaser, who 




IN SPECIAL TERM, 1871. 65 

Sohl ei al v. Geisendorf ei al 

might be seeking the plaintiffs' brand of floar. If the two 
marks were seen at different times or places, a majority of 
purchasers would not distinguish the one from the other, 
unless their attention was specially called to the difference. 
If such be the case, the law is well settled, that the defend- 
ants' trade mark is an infringement of the plaintiffs', even if 
the marks, side by side, would not mislead. But these two 
trade marks, when placed side by side, would mislead many, 
if not a majority, of purchasers. 

It is the opinion of the Courts that the similarity of the 
two marks is so great that defendants' is a palpable infringe 
ment of plaintiffs'. 

Clark V. Clarkj 25 Barbour, 76; Brooklyn Company v. 
Maury^ 25 Barbour, 416 ; Eddleson v. FtcA, 23 Eng. Law 
and Equity Reports ; Amoskeag Co. v. Sprears^ 2 Sanford 
Superior Ct Reports, 599 ; J%e Joseph Dixon Crucible Co. 
V. Meyr Oagginhien^ et cU^S American Law Tirms, 288, and 
authorities there cited ; Sexio v. Provigendo^ 1 Ch. Appeal 
Cases, 191 ; Coats v. Holbrooke 2 Sanford's Ch. Reports, 584, 
and the cases there cited. 

Upon the plaintiffs executing the proper bond, the follow- 
ing order will be entered : 

It is therefore considered by the Court, that the defend- 
ants, and each of them be enjoined, until the final hearing 
of this cause, or the further order of the Court, from using 
or permitting their employes to use, the trade mark indicated 
by exhibit ^*B," in plaintiffs' complaints, and heretofore used 
by them, or any mark of like similitude. 

NoTB. — Perpetual ioj unction was granted against defendants, at the fol- 
lowing May Term, and judgment rendered against them for damages and 
costs. — Rep. 



NoTS. — No man has a right to drees himself in colors, or adopt and bear sym- 
bols, to which he has no peculiar, or ezclusire right, and thereby personate 
another person, for the purpose of indticing the public to suppose, either 

5 



66 SUPERIOR COURT REPORTS. 

SoU tt at •. Oeitendorf *i oi. 

• 

that he is that person, or that he it connected with, and selling the maim- 
factore of such other person, while he is reallj selling his own." Billiard 
on Injunetion, tit. Trade Markt, 490, 2d JBd, 

** Ad injunction will he granted, if purchasers using ordinary care arc 
lisble to be misled, though not if the two trade marks were seen side bj 
side." Sam4y 491, << ieq. 

** There must be, between the genuine and fictitious marks, snch general 
similarity, or resemblance of form, color, symbols, and such identity of 
words and their arrangement, as to have a direct tendency to mislead buyers, 
who exercise the usual amount of prudence, and caution. Same 493, el «eg. 
See alto m Crqft t. Jkty^ 7 Beavan, 88, and in Partridge T. Menek^ 2 Swuf^. 
Ck.y 624. 

" The right to a trade mark, may in general, treating it as property, or as 
an accessory of property, be sold, and transferred upon a sale, and transfer 
of the manufactory of the goods, on which the mark has been issued, to be 
affixed, and may be lawfully used by the pui chaser," • • • • 
and if they ** continue to use the original name as a trade mark, they will be 
protected against any infringment of the exclusiTC right to that mark." * 

"Tho question in every such case must be, whether the purchaser, in con- 
tinuing the use of the original trade mark, would, according to the ordinary 
usages of trade, be understood as saying more than, that he was currying on 
the same business as bad been formerly carried on by the person whose 
name constituted the trade mark. In such case I see nothing to make it 
improper for the purchaser to use the old trade mark, as the marks would in. 
such a case indicate only that the goods so marked were made at the manu- 
factory which he had purchased." 11 Boueeof Lords' Cbses, o33, 534. 

For the infringement of a trade mark, the plaintiff is entitled to nominal 
damages, without proof that he has been deprived of any particular amount 
of profits by the defendant's unlawful act. Burnet v. Phalon^ 21 Boward 
Pr., 100; Blofield v. Payne, 4 B. ^ Ad,, 410. 

But, "in practice, the plaintiff's remedy ties rather in the equitable 
* security for the future,' than the legal * indemnity for the past,' afforded by 
the Courts, as no definite role seems to exist for the ascertainment of the 
extent of the actual damage." Sedgwick on Damagee, 675, n. 

In England, however, **it is held that the Court will only direct an 
account of the * profits made by the defendants by means of the infringe 
ment/ and not of those of which the plaintiff has been deprived Sis 
ELu'ood V. Christy, 18, C B. {N. S,), 494. 

The jury may give vindictive damages, if the defendant is sued the 
second time. 1 Siory, 336. iS^ o^ 16 Boward, 480, 489 ; 1 BlaUhford, C. C 
R,, 244. 

** If the mark used by the defendant bears such a resemblance to the 
plaintiff's trade mark, though not an exaet cop^f, as is calculated to mislead 



IN GENERAL TERM, 1871. 67 

DeVord •. Urbain. 

the public ^nerftllj, who are pnreheeere of the article, and to make it 
pass with Uiem for the one aold bj him, it is an infringmenC 4 McLeam, 
616 ; H9 aUo Bri^tUy'i Fed. Diffwi, Ui. " Trmd€ Atttrks," 831. 

The appropriation of anj prominent, essential, or vital feature of a trade 
aiark bj another, is an infringment. If the trade mark is simnUted in snch 
manner as probably to deceire oQitomers, the piracj may be checked by 
injunction. FUUf ▼. /buftt, Si^eme Ckmri rf Mo.^ 1869, 4 MelAon^ 519 ; 
2 Bmrh. €»., 103. 

It is not requisite that the whole should be pirated, nor to show that any 
one has In fact been deceired. %Samd. 8. C, 607; 26 Barb. 79; 2 Samd. 
G4., 697. 8u 8 Am. Law Meg. N. &, 402, and anOerifMS died <o ca$e. 
See Uptm on *« Trade MarkeJ* 



IN GENERAL TERM. 



John A. DbPord, Appellant, v. Jonn F. C. Urbain. 
Contract^ recisian of — Agreement^ performance of 

Where an agreement contains no specified time for its performance, its exe- 
cution most be within a reasonable time. Failing to carry ont its 
proTi^ions, to entitle either party to recovery for breach, a tender must 
be made of the consideration, on the one part, or demand for the per* 
formance of the contract on the other. 

A party who seeks to rescind a contract, must return, or offer to return, 
whaterer consideration he has received on the contract, or at least put 
the parties m etaiu qm, as nearly as the fraud, of the opposite party 
will permit. 

The provisions of See 26, of the Act creating the Superior Court, in the 
determination of eases in the General Term, gives a discretionary 
power to enter, sfllrm. reverse, or modify the decision made in Special 
Term, and accordingly the Court in General Term, may settle the rights 



68 SUPERIOR COURT REPORTa 



DeFord v. Urbftin. 



of tbe partiM, oo appeal, by a discretionarj ordar to ibe Jn4g% before 
wbom tbe caae was beaid in Special Term. 

Heller — Taylors^ for appellant 
Mitchell Sf Ketchamj for appellee. 

Rand, J. — This was a suit in replevin for a portable saw 
mill, brought by plaintiff against defendant, in which be 
alleges that he is the owner, and entitled to the possession. 

Defendant filed an amended answer in paragraphs num- 
bered 2dj Sdj 4th and 5th. 

There was a demurrer sustained to 2dy and one overruled 
as to 3^ and reply of general denial to 3d, Ath and 5^ and 
a trial and verdict on the issues raised by these paragraphs 
for defendant, and judgment for return of the property to 
defendant was rendered over plaintiffs' motion for new 
trial ; exceptions were taken ; the evidence is made part of 
record. Plaintiff appeals to General Term, and assigns for 
error the overruling of demurrer to 3d paragraph of answer, 
and also error in overruling motion for new trial 

The third paragraph alleges that plaintiff's sole claim to 
tbe portable saw mill is under and by virtue of a certain 
written contract^ which is made part of the paragraph, and 
that plaintiff has failed and refused to carry out his part of 
said pretended contract, and he says that there is a total fail- 
ure of consideration to the defendant 

Said written contract reads as follows : 

^ Articles of agreement made and entered into this 28tb 
day of March, 1871, between John F. C. Urbain, of Marion 
County, Indiana, of the first part and John A. DeFord, of 
Marion County, Indiana, of the second part 

^ Witnesseth that the party of tbe first part, for and in 
consideration of eighty acres of land situated in the County 
of Newton, State of Indiana, and three hundred dollars, has 
this day sold his steam circular saw mill in LaMrrence town* 



\ 



IN GENERAL TERM, 1871. 69 



DeFord v. Urbain. 



ship, Mariofi County, Ind., and the appurtenances thereunto 
belonging, and in consideration of the above, the party of 
the second part agrees to give a good and sufficient warrantee 
deed to eighty acres of land in Newton County, Ind., and pay 
the sum of two hundred dollars in cash, and one hundred dol- 
lars on the 1st of September, 1871, with 10 per cent interest 
from the date of this agreement Witness our hands and 
seals this 28th day of March 1871. 

J. P. C. Urbain. 
John A. DeFors.'^ 

It will be observed that no time is specified when the mill 
is to be delivered, or the deed for the 80 acres of land made, 
and the 9200 in cash paid. 

According to well settled principles, such a contract, if fiot 
immediately performed, nnist be in a reasonable time, and 
the act of delivering the saw mill, and the delivery of the 
deed for the 80 acres, and the payment of the 9200 in cash^ 
are concurrent acts. 

It seems to us if the plaintiff had failed to perform his 
part of the contract, he was in no condition, without first 
tendering a performance on his part, to demand a delivery of 
t-he mill. We think the third paragraph of the answer was 
a bar to the plaintiff's recovery, and the demurrer was 
properly overruled. 

The fourth paragraph of the answer sets out that the only 
claim plaintiff has to said saw mill is under the said written 
contract, and that plaintiff fraudulently represented that he 
had good title to the 80 acres of land in Newton County, 
was the owner in fee-simple, and that it was free from 
incumbranees, and defendant relying on said representations, 
executed said contract, when in fact plaintiff had no title 
whatever, at the time or since, to said 80 acres, and plaintiff's 
representations were wholly false and fraudulent 

The /ifth paragraph of the answer alleges that plaintifl 
claims title to said saw mill by and under said contract, and 



70 SUPERIOR COURT REPORTa 

DeFord v. Urbain. 

that said contract was obtained through fraud in this, that 
plaintiff represented that said 80 acres of land was well 
suited for agricultural, and farming purposes, when in truth 
it was not suitable for such purposes, and is almost entirely 
covered with water, and not fit for any purpose whatever, 
and what is not covered with water is a swamp, and defend- 
ant relying upon said representations, entered into said 
written contract 

On the trial of these issues, it was proved that Jacob P. 
Dunn had contracted to convey to a certain Gravel Road 
Company 80 acres of land in Newton Cdunty, and said 
Company had agreed to convey to plaintiff^ 80 acres of 
Newton County land^ and by agreement between Dunn, 
said Company, plaintiff and defendant, that Dunn should 
convey to defendant 80 acres of land in Newton County, in 
fulfillment of DeFord's agreement to convey 80 acres to 
defendant, and therefore Dunn and wife made defendant a 
warrantee deed, which defendant accepted^ in fulfillment of 
that much of DeFord's contract with him, and at defendant's 
request, Dunn sent the deed to Newton County, and had it 
recorded for defendant It also satisfactorily appears that 
before the bringing of this suit, that plaintiff tendered 
defendant the $200 cash, mentioned in the contract, and 
demanded possession of the saw mill. 

It appears, as well as shown by the evidence, that Dunn 
never had any title to said 80 acres conveyed by him to 
defendant, and also that the land is worthless for farming 
purposes, that its market value is 9L00 per acre, and that 
Urbain never took actual possession of it 

There is no evidence that defendant at any time tendered 
a reconveyance of said 80 acres to either Dunn, the said 
Company, or plaintiff, and we are satisfied that the verdict is 
right, unless it was necessary that defendant should have 
made such tender 

The motion for a new trial is for three causes — 



IN GENERAL TERM, 1871. 71 

DeFord v. Urlwiii. 

Firstj The verdict of the jory is not supported by the 
evidence. 

Secondj That the charge of the Court to the jury was 
contrary to law. 

Thirdj The Court erred in admitting improper evidence, 
which was excepted to at the time. 

There has been no error nrged, or pointed out under this 
last specification, and we shall not consider it further. 

In order to dispose of the other two causes for a new trial, 
it will be necessary to determine whether Urbain, before he 
could successfully resist plaintiff's suit for possession of the 
saw mill, should have tendered a reconveyance of the 80 
acres to either Dunn, or DeFord. 

DeFord's suit was in the nature of an action for specific 
performance of the contract, and Urbain was seeking a 
rescision of the same. 

DeFord bad undertaken to perform that part of the contract 
which bound him to make a good and sufficient deed to 80 
acres of land in Newton County, and had performed it in 
such a manner that Urbain had accepted a conveyance firom 
Dunn in full discharge of that part of the contract But it 
turns out that Dunn had no title to the land he conveyed to 
Urbain, and that the land was worthless for agricultural, or 
farming purposes. 

Defendant had ab election, either to tender a reconveyance 
of the land, and rescind the contract, or he could stand by 
the contract, and sue upon Dunn's warrantee in this deed, so 
far as the defense of want of title is concerned. 

If defendant can successfully defend this suit without 
tendering a reconveyance to plaintiff, or Dunn, he succeeds 
in rescinding the contract DeFord could not at this late 
day tender him a deed for another 80 acres of Newton 
County land, and then force Urbain to execute the con- 
tract 

He still holds Dunn's warrantee deed for the 80 acres of 



72 SUPERIOR COURT REPORTS. 

DeFord V. UrUin. 

land, and if the verdict and judgment stand, the contract is 
rescinded. 

It is urged that he could not recover against Dunn upon 
the warrantee if he rescinded the contract This may be 
true. But how is DeFord to have his remedy over against 
the Gravel Road Company, and that Company against Duun. 
Dunn might well say: By agreement with you all, I con- 
veyed to Urbain by warrantee deed, and so long as that 
warrantee is out, I will not convey to you that, or other 
land. 

It is a well settled rule in equity, that a party who seeks 
to rescind a contract, must return, or offer to return, whatever 
he has received on the contract, or at least put the parties 
in statu quoy as nearly as the fraud of the opposite party will 
permit. Mason v. Bovet^ 1 Denio, 69. 

We think the Judge trying the case should, before he 
rendered judgment for the return of the saw mill to defend- 
ant, request him to execute and file in this cause a deed of 
quit claim to plaintiff, for the 80 acres of Newtoa County 
land, conveyed to defendant by Dunn, and upon his failure 
to do so, that a new trial should have been granted. 

A portion of the 25th Section of the Act, creating this 
Court, reads as follows : 

" The appeal shall be heard and considered in the General 
Term, upon the original papers and records filed, and made 
in the cause at the Special Term, and such matters as are 
properly made part thereof by bill of exceptions ; it may 
affirm or reverse the judgment of the Special Term, or 
modify it, or render such judgment as may be deemed 
proper. It shall, if the judgment of the Special Term is not 
affirmed, enter of record the error, or errors found there, and 
remand said cause to the Special Term, with instructions as 
to said error, or errors, and the Special Term shall carry into 
effect the instructions of the General Term." 

Under these provisions of the* law, organizing this Court, 



IN GENERAL TERM, 1871. 73 

DePord v. Urbun. 

we think we have fall power to settle the rights of the parties 
herein, according to the rales and principles of eqnity. 

The caase is therefore reversed, back to, and inclnding the 
rendition of the judgment, and the Judge at Special Term 
is directed to enter an order requiring defendant to execute 
a deed of quit claim to plaintiff, for the 80 acres of Newton 
Ck>nnty land aforesaid, in which defendant's wife, if he has 
one. must join, within twenty days from the entering of such 
order, and place the same on file in this suit, for the benefit, 
and acceptance of plaintiff, and upon his complying with such 
order, the Judge at Special Term is then directed to enter 
judgment, on the verdict of the jury, in conformity to law, 
and upon said defendant's failing to do so, then the Judge at 
Special Term is ordered to grant plaintiff a new trial. 

Plaintiff is decreed costs in General Term. 



lnoTi. — A party can not repudiate a contract on the ground of fraud, and 
at the same time retain the benefits derived from it, but must, when he dis- 
covers the fraud, restore, or offer to restore, to the other partj, what be 
receired. Failing to do this, he affirms the contract. 17 /tuf., 183. 

The election on the part of the defrauded party to rescind the contract, 
(the consideration, a note), must be exercised as soon as the fraud ia discov- 
ered, and if after the fraud practiced upon him has come to his knowledge, 
he deaU with the tu^eet matter of *he contract, he can not repudiate the con- 
tract| although he subsequently discovers further circumstances conncrcted 
with the same fraud. Chitty on Contracts^ 680. 

When a contract stipulates for the conveyance of lands, or estate, or for a 
title to it, performance can be made only by the conveyance of a good title, 
and when it stipulates only for a deed, or for a conveyance by a deed de- 
scribed, performance is made by giving such a deed, or conveyance as the 
contract describes, however defective the title may be. HUl v. Hohart^ 15 
MainA, 164; Lawrence v Dale, 11 Vermont, 549; 22 Pick,, 166. 

A contract to make, and execute " a good and eufficUnt deed to convey the 
tUU to taid jfremieee,** is not performed unless a good title to the land passes 
by the deed. Same: Pugh t. Cheseeldint, 11 Ohio, 109; Tinney v. Aek- 
ley, 15 Piek^ 546; Smith v. Naynee, 9 Oreenl^ 128; Tremaine v. Lining, 
Wright, 644 ; Bacon v. Oammon, 14 Maine, 276. 

The party must be able to convey such a title as the other party had a 
right to expect. 11 F«rmofi^ 549. 



74 SUPERIOR COURT REPORT& 

DeFord v. Urbaia. 

If A contrmcti or order, under which goodi are to be ftimished, does not 
ipecifj anj time at which thej are to be deliTored, the law implies a eon- 
tract, that they are to be deliTered within a reasonable time, and no eTidenoe 
will be admitted to prove a ipeci6c time at which thej were to be deliTer«d, 
for that would be to contradict and Tarj the legal interpretation of the 
instrument Oroeker t. FrankUn Hiup mmd Flax Mam^faebtHmg Oo^ S 
Sumntr^ 530. 

What is a reasonable time, within which a contraet is to be performed, 
where the contract is silent on the snbject, ii a qnestion of law. 2 QretnLj 
249; 16 Jfotfu, 350; 16 Afome, 164. And it is to be determined hj a Tiew 
of all the circumstances of the case. 3 Ammmt, 630; 3 JbAns. CA., 23; 3 
Pwin., 445; 22 FUk,, 546. 

A person is not bound to perform an agreement on Sonday. 1 Cbwai, 76^ 
amd Chitty on ContraetM, 738, ii., and €t uq. 

Where no time is fixed in the contract, or bj other agreement between 
the parties, either express, or implied, for the doing of a things a request if 
essential to the cauM of action. 24 Vtrmont^ 660. 

** Where the acts to be done bj each party, are to occur at the same 
period, neither party can sne on the contract, without showing that he was 
ready, and willing to perform his part thereof." ChiUif on Ckm^ 746; 1 
Cushing, 279; 3 Wend., 356; 3 Rand^ 71. 

A partj can not rescind a contract, snd at the same time retain the con 
lideration in whole, or in part, which he has received under it. Jnmm^ t. 
Gage, 13 Illinoit, 610; 1 MtteaV, 560. 

'* If the rescinding of a contract has been brought about by the intentional 
misrepresentations of one of the parties to it, the contract will still bind the 
party who has deceived the other as to any damage that may ensue to the 
latter in consequence of the mata fides," Bmee t. RuUr, 2 Man f Riflan£% 
Reports^ K, B,, 3. 



IN GENERAL TERM, 1871. 7S 



SneaghAD eialw. Briggs «l ai. 



IN GENERAL TERM 



Caroline M. Snraohan ei al v. Erastus M. Brigos et cU^ 

Appellants. 

Appeal from Niwoomb, Judge. 

Qmiractj breach of— Pleading — Practice. 

Im an action for breach of eontrmct, a party suffering default maj after- 
ward be permitted to dispute the amount of damages onlj, but he is 
estopped f^om introducing evidence which might otherwise be good 
under a general denial. 

All matters of defense, except the mere dental of the fiicts alleged by the 
plaintiff, must be pleaded specially. 

U^ after default, counsel defending are present at the introduction of 
evidence, and cross-examine witnesses, and no motion is ioteipo&ed to 
place the parties in a position to present a defense, and a finding is made 
by the Court, it is then too late for a motion to set aside such default 
and findiog. 

Such appearance will cure any defect in service of prooess. 

Yoss 4* DaviSj for appellants. 

TeHy Bums Sf Wright^ for appellees. 

Blafr, J. — The plaintifi^ brooght this suit to recover of 
the defendants, on account of their failure to use good 
materials, and perform the labor in a workmanlike manner, 
in the construction of a house which the defendants built 
for the plaintiffs. The contract between the parties for the 
building of the house was in writing, and was made a part 
of the complaint 

The cause was commenced on the 28th day of April, 1871, 
and the summons was served ou the 29th day of April, " by 



76 SUPERIOR COURT REPORTS. 

Sneaghan tt al 9, Briggs €t mL 

reading and delivering a copy to William G. Briggs, and 
leaving a copy at the last, and usual place of residence of 
Erastus M. Briggs," as is shown by the Sheriff's return. 

On the 7th day of June, being the third day of the June 
Term, the defendants were defaulted. 

On the 14th day of June the cause was submitted to the 
Court at Special Term, for the assessment ot damages. It 
seems from the record, that attorneys for the defendant were 
present at the trial, and were permitted to cross-examine the 
witnesses introduced by the plaintiff; and at the conclusion 
of the plaintiff's testimony, the defendants called William 
Briggs, one of the defendants, as a witness, and propounded 
to him the following question : " What kind of lumber was 
used by you in plaintiff's house?" To this question the 
Court sustained an objection, made by plaintiff, and the 
witness was not permitted to answer. 

One of the allegations contained in the complaint is, that 
the lumber used in building the house ^ was rotten, and of 
an inferior quality, and unfitted for such use." This was a 
material allegation of the complaint, and the defendants not 
only failed to specifically contravert it by answer, but further 
admitted its truth by suffering a default. After default it is 
error to allow all evidence to be introduced which might be 
good if a general denial had been filed. Stephens v. Pell^ 2 
Dowl., P. C, 629. All that the defendants would, in such 
case, be allowed to dispute, taking the breaches of the con- 
tract properly alleged in the complaint as true, would be the 
amount of the plaintiff's danrages. DeGaeUon v. VAaigU^ 
1 B. & P., 368 ; Saunders on Pleading, and Ev., 2 Vol., p. 2ia 

The evidence was therefore rightly excluded. 

The same witness was then asked three other questions, 
as follows, viz: 

" What specific directions did plaintiff give you about 
the construction of the house, that were not mentioned in 
the contract?" 



IN GENERAL TERM, I87I. 77 

SneaghaD ei al v. Brigg« H aL 

Secondy What changes did she order in relation to the 
stairway?" 

Thirdy " By whose direction was the stairway placed out- 
side instead of inside the hoase?" 

To these questions, objections of the plaintiff were sus- 
tained, and the witness was not permitted to answer. 

It is only necessary to observe, that if the defendant relied 
on any change in the terms of the contract sued on, subse- 
quent to its execution, by which they were relieved from 
their obligation to perform the labor in a workmanlike man- 
ner, or by which they were allowed to use defective 
materials, these would have been proper matters to have set 
up in answer. ^ All defenses, except the mere denial of the 
facts alleged by the plaintiff, shall be pleaded specially." 2 
G. &. H., p. 93, Sec 66. 

By the first question, the defendants would seem to be 
seeking for facts outside of the contract sued on, by which 
they might avoid the breaches alleged in the complaint 
The second, and third questions indicate an intention to 
show that the terras of the contract, with reference to the 
stairway, was changed at the instance of the plaintiffs. To 
have admitted such evidence after the default would clearly 
have been error. 

After the Court had assessed the damages of the plaintiff 
at two hundred dollars, the defendants filed a motion, and 
affidavits to set aside the default, and finding. This motion 
was overruled by the Court, to which the defendants 
excepted. The affidavit is made by each of the defendants, 
and Erastus M. Briggs says, "that no notice whatever, of 
the pendency of this case, was ever served upon him, and 
that he had no notice of it until the morning the case was 
tried." The statute provides expressly for the kind of service 
which the return of the Sheriff shows was made upon 
Erastus, and he does not show in his affidavit that he had 
no residence where a copy could be left, so as to constitute 



78 St7PERIOR COTJBT REPORT& 

SnMghan #<«<•. Briggi §€ mk 

a good servioe. William Briggs admits notice^ and says he 
intended to have notified Erastas, but ^ forgot to do so." 
He farther says, that since the service of the summons he 
^ has been working out of the city," and then goes on to 
relate a conversation had with one of the plaintiffs before 
the suit was broaght, in whicfa she only claimed some thirty 
dollars as damages, and said if the defendants wonld pay 
that she would be satisfied, and he says that, ** owing to the 
trifling character of her demand, he did not give the matter 
much attention," 

The affidavit, so far from shpwing any excuse for the 
neglect to appear and answer, actually shows negligence. 
Even Erastus, notwithstanding William's forgetfulnesa, 
found out that the case was for trial on the morning it was 
to be tried, and attorneys were employed, who were present 
at the introduction of the evidence, and cross^xamined the 
witnesses, and no motion was interposed to place the parties 
in a position to present any defense until after the damages 
were assessed by the Court This of itself showed negli- 
gence in suffering the Court to go through with the labors of 
a trial, and after finding the opinion of the Court adverse to 
them, seeking to place themselves in a position to make 
defense* 

In addition to the negligence shown in the affidavit, it fails 
to disclose anything that would defeat the claim of the 
plaintiffs. The defense claimed in the affidavit is but 
partial. 

We think the motion was correctly overruled. 

A motion for a new trial was then made by the defend* 
ants, and some seven reasons filed in support of the same^ 
We doubt the defendants being in a position to have 
presented this motion, but the reasons for a new trial 
assigned in the motion, raise the same questions, with the 
exception of the first and second, which we have already 
decided adversely to the defendants 



V 



IN GENERAL TERM, 1871. 79 

Sneaghan et alv. Briggs el oL 

On the first and second reasons for a new trial, we believe 
the finding of the Court is fally sustained by the law and 
the evidence. 

The motion was therefore rightly overruled. 

The judgment of the Special Term is therefore affirmed. 



NoTB. — Every material allegation of the complaint, and anawer not 
denied, is for the purposes of the action, taken as trae. See 2 G, ^ E., See, 
74, and authariliee cited thereto. 

Where a default has been regularly taken, the Court is not authorized to 
set it aside, unless the defendant showr aflSitnatiTely, that he has a merito- 
rous defense to the action — 16 /fuf^ 183 — and the nature of such defense 
must be distinctly stated in writing, and Terifled by affidavit. Same, 139. 

It is not enough for a party applying to have a judgment set aside, to 
allege that he was unable to attend, and make his defense, without show- 
ing the nature, or cause of such inability. Same, 

In the absenee of contrary proof the appellate Court will presume, that 
the Court below, when it ordered the default, wss fully satisfied by evidence, 
that the process was regularly served — Same 183. Ao appesranoe is equiva- 
lent to a personal service of the summons. 6 Sand., 423. 

An affidavit of a good and substantial defense in the cause, is a sufficient 
affidavit of merits. 3 Jokne.^ 448. 8u alto 5 Jokne., 360. But eee/arquaU' 
ficaiion, 5 Haw,, 233, 238. 

An affidavit of defendant's attorney is not sufficient. 8 Johne,, 258 ; eee 
aUo 4 Bill, 61. 

On an application to set aside a regular default, the defendant must dis- 
close bis defense. 1 Barb, C%., 173. 

A default will not be opened to let in a technical defeose, or to enable a 
party to raise technical objections. 6 Paige, 671 ; 3 do,, 573 ; 8 <fo , 197 ; 10 
ifo., 369. 

Any matter which can properly mitigate damages, may be shown on the 
assessment of damages on a default to answer. 12 Howard, 342. 



80 SUPERIOR COURT REPORTS. 



Stoa^ «. Indianapolia ft St. LoaU Bailroad Company. 



IN GENERAL TERM. 



^ 



Peter Stout r. Indianapolis & St. Louis Railroad 

Company, Appellant. 

Appeal from Blair, Jodge. 

Railroad — Highway crossing — Negligence. 

Where » person approaches a line of railroad, that for some distance is to 
be seen from, and in direction of a highwaj, which he is traTeling, 
and the railroad crofses, and snob person fails to use all reasonable 
means to ascertain whether a train is near, or that it would be safe 
to cross the track without stopping to look, and inyestigate the proba- 
bilities of danger, and goes upon ihe track, and is injured bj a passing 
train, be \9 guilty of negligence, and can not recoTer damage?. 

An anfwer to a question collateral to the issoe ean not be contradicted hj 
the interrogating party — it is cooclusiTe against him. 

Barbour 8^ JacobSy for appellee. 

M. & Osbomcy for appellant. 

Rand, J. — This was a suit brought by Stoat against the 
Railroad Company, in which he alleges that he was crossing 
defendant's track in a two-horse wagon, where it crosses the 
public highway, called the Rockville Road, and that the 
defendant's servants carelessly, and negligently run a loco- 
motive and train over plaintiff's horses and wagon, and 
greatly injured him, and that plaintiff did not by his own 
carelessness, or negligence, contribute to the injury. 

The defendant denied the allegations of the complaint 
There was a trial at Special Term, and verdict for plaintiff 
for 93,000, and motion for new trial, which was overruled. 



IN GENERAL TERM, 1871. 81 

Stoat V. Indianapolis & St Loois Railroad Company. 

and excepted to, and bill of exceptions setting out the 
evidence in the case. 

It appears from the evidence that the plaintiff was travel- 
ing along a public highway, called the Rockville Road, in 
Marion County, in a two-horse wagon, and as he drove 
across the defendant's track where it crosses said Rockville 
Road, the defendant's train, consisting of a locomotive and 
cars, coming from the West, ran into the plaintiff's horses 
and wagon, destroying the wagon, killing one of the horses, 
and seriously injuring the plaintiff The Rockville Road 
branches from the National Road a quarter of a mile east of 
where defendant's track crosses the former road. Plaintiff 
was traveling west from the National Road along the Rock- 
ville Road, to said railroad crossing, and defendant's track 
was in view most of the way for a mile west from said 
point of the Rockville Road, which plaintiff wad traveling, 
until he came within about one hundred feet of defendant's 
track, and then the view of the track was obstructed from 
plaintiff until he got within thirty feet of the track, and 
then it could be seen about a quarter of a mile west. 

If plaintiff had used proper diligence in looking^ out for 
passing trains, he could, until he arrived within one hundred 
feet of the crossing, have seen the train coming for at least a 
mile, and after he had got within thirty feet of the track, he 
could have seen it about a quarter of a mile. If he did not 
look out for the train, and attempted to cross, it was negli- 
gence on his part — and if he saw the train coming, and 
attempted to cross immediately in front of it — ^this was also 
grosser negligence, and he must take the consequences of his 
own rashness. We may add here that there is no evidence 
that defendant's train was willingly, or wilfully run upon the 
plaintiff's team and wagon. 

The defendant asked the Court to give fourteen written 
instructions, all of which were refused, and properly 
excepted to. 
6 



82 SUPERIOR COURT REPORT& 



Stout •. IndiMiapoIis ft St. Lonit Bailraad CompMiy. 

The Coart charged the jury, and most of the iDstractions 
asked by defendant were given to the jury in substance, if 
not in fonn. As to some of the others, this Coart is divided 
in opinion, as to virhether they should have been given, but 
we are unanimously of opinion that the third instruction 
asked by defendant should have been given to the jury. 

This instruction reads as follows : 

7%irdi If you find that the plaintiff did not, before 
attempting to cross the railroad, endeavor to ascertain 
whether a train was near, by looking up and down the track, 
or by using all reasonable means to ascertain whether it 
it would be safe to cross the track, and he went upon the 
track without investigating, or stopping beforehand, then the 
plaintiff would be guilty of negligence, and could not 
recover." 

This instruction^ we think, states a correct principle of law, 
and is applicable to the case at bar. No instruction was given 
to the jury which so clearly and fully expressed this principle. 
Bee The Bellefantaine Railroad Compamy v. Am^er, 33 Ind., 
and authorities there cited. 

The defendant has assigned for error, that the Court erred 
in permitting the plaintiff to ask the witness, Jacob Kunkle, 
over defendant's objections: ^ Did Aaron Cady, at the place 
of the accident, after it had happened, say to you that he 
never would pass that crossing again without sounding the 
whistie?" 

The witness, Aaron Cady, had testified in chief, that 
before calling for down breaks, he gave two or three pufls of 
the whistle, when he first saw the team of the plaintff, and 
was then asked, on cross-examination, whether he had not 
made that statement to Jacob Kunkle ? 

This was a question oa a ooUateral matter, and the plain- 
tiff was bound by Cady's answer. See 1 Starkey on Evi« 
dence, side page, 164. 

A new trial should have been granted. 



IN GENERAL TERM, 1871. 83 

8toat V. Indiwiapolis k 8t Loato RailrMd Company. 

The canse is renersedj and reroancied to Special Term for 
a new triaL 



KoTB — The omisaton of a railroad compiiBj to giro the aignaU required 
by the Statate, oo the approach of a loeoMOtiTO within eighty rods of a 
higbwdj crosfliag, if a breach of duty to the passengers, whose safety it 
imper Is, and to the wayfarer, whom it ezpotes to mutilation, and de^th. 
Enut ▼. JUmdum Mher RMilr9^ Oompm^f 36 3r. F. 

When the passer-by knows of the immediate proximity of an advancing 
train, whether the warning be by signals, or otherwise, and baring a safe 
and rensonable opportttoity to stop, he Toluntarily takes the risk of crossing 
in front of it, he is goilty of eulpable negligence, and forfeits all claim to 
redress. Same, 

Of the crosaings the company's serTanis haye a right to presume that 
there are no trespassers on the roadway. They are not bound to look out 
for tretpiissers, except for the safety of passengers. If a trespasser is seen, 
the company's servants will not render the corporation liable except for 
wanton negligence. The obligations of care and dil genoe rest on the tres- 
passer. Am, Lam Eeg^ (». a.), 7, 460. 

Neither the company, nur the pmblie, have exclnsiye rights of passage at 
a highway crossing. Their rights are concurrent It is the duty of the 
Iraveler to look out for approaching trains snd engines. If he fails to use 
the precaution, bia omission to perform his duty is negligeoce, and he can 
oot recover. The Bailroad ▼. BeilmoHy 13 Wright, 60 ; 3 P. F. Smith, 366. 

Unless the jury are sati>ified by ajbrmatiffe evidence that ordinary care was 
osod, no recovery can be had for damages. The RaUroad v. Hogan, 11 
Wright, 246; 12 Md, 261; Ihid, 46. 

With respect to the defendant's negligence, the oniM probandi is of course 
on the plaintiflT— 4 IFfvA^— except where he is a passenger suing his car- 
riers 6 Caeey, 234. 

The mle that the plaint AT can not recover damages, if his own wrong, as 
well as that of the defendant, conduced to the injury, is confined to 
cases where the plaintiff's wrong, or negligence, has immediately, or prox- 
imately contributed to the result. Klime v. Central Pacific R. JR., 37 CbA, 
6 Am. Lam Reg,, 387, N, 8.; Redfield an Raiiwaye, 337; 2 Car, j* JR., 730; 
8 C, B.t 116; 12 C, B. {v 8.}, 2; s. a, 3 i^. j* F., 61. 

The party injured not being a passenger, the defendants were not required 
to exercise that degree of vigilance which the law required towards those 
with whom there is a relation of trust, and confidence, or bailment between 
the parties. 8 Barb,, 378. 

See Redfield e Am. Railwag Caaee, 636. Also the following authorities 
touching the question involved in the above opinion : 



84 SUPERIOR COURT REPORTS. 

The IndiaiuipoHs Hotel Com pan j v. The Board of CouDtj Comminionere. 

Danes ▼. Mann, 10 M, j* W,, 646 ; JVi^g* t. Oo^iwin, 5 C, ^ P^ 546, 
leading Engliih Caen; 24 VL Rep., 487; 27 Conn, Rep^ 393; 16 /b^ 421; 
3 Ohio (AT. S.), 172; 4 76., 474; 8 lb., 570; 31 Pam^ 8t. Rep., 510; 26 
Conn, Rep^b9\\ 1 CWik, 451; 10 Barb., 621. 

On the question of a partj being bound bj aotwer of witneit, 8ae 1 
Oreenl. Be , 12 Ed., Sec. 442 to 449— for ezeeptioni to general role— <Bk. 443^ 
ai«/ autkaritiee died. 



IN SPECIAL TERM. 



The Indianapolis Hotel Company v. The Board or 
County Commissioners of Marion County. 

Board of Commissioners — Contract urithy when valid. 

The Board of County Commissioners is a Court of special, and limited juris- 
diction — it can only transact business as a Board when in session. 

The County is not made liable on the certificate of the architect, employed 
by the Commissioners for a special duty, for materials furnished, if the 
order, or contract for the materials had not been confirmed by the Board, 
when legally in session. 

Where the complsiot shows a good cause of action, in this, that the material 
was fVirnished, and deliyered at the special instance and request of the 
architect, and was used by direction of the CommiMioners — 

Held: That 'an action will lie for the yalne of the material fnmishedr 
irrespectiTe of the alleged special contract. 

Porter^ Harrison 3f HineSj for plaintiff. 

Barbour 3f Jacobs^ for defendant. 

Newcomb, J. — A demurrer to the complaint in this cave 
presents the question of the liability of the County to pay 



IN SPECIAL TERM, 1871. 85 

The iDdianapoliB Hotel Companj v. The Board of Countj Commissionera. 

for a qaantity of earth and sand delivered on the public 
aqaare in Indianapolis. 

The complaint in a single paragraph alleges — 

First, That on April 20th, 1870, Aaron Me Cray and 
Joseph K. English, then acting Ck)mmiBsioners of Marion 
County, entered into the following contract with plaintiff: 

^< We, the undersigned Commissioners of Marion County, 
hereby authorize the Indianapolis Hotel Company to 
deposite the surplus earth taken from the excavation of their 
cellar, on the Court House Square, under the direction of 
Isaac Hodgson, the Court House architect, the same to be 
paid for at such price per yard as the said architect may fix 
upon. 

(Signed) Aaron McCray. 

Joseph K. English." 

Second, That on the 15th day of June, 1870, the Board 
of County Commissioners, being then in session, at the 
Coart House, as a Commissioners' Court, entered into a 
contract with one Isaac Hodgson, by which he was appointed 
architect and supetintendent of the new Court House about 
to be erected by the Commissioners, and he was empowered, 
among other things, *' to employ all the hands, and make all 
contracts for work and materials, subject to the approval of 
the Board of Commissioners^^ And further, that said 
architect should ''make all the estimates, and certify all 
allowances for work, and materials." That after said 
appointment of Hodgson as architect, &c., the latter con- 
tracted with plaintiff for the delivery of the surplus earth, 
and sand, from the excavation of the cellar of said Hotel 
Company, to be delivered at the Court House yard, to be 
used as material in the construction of the Court House, &c., 
and agreed with plaintiff that the same should be paid for 
by said County, by the yard, at the customary price of such 
material. 

Third, That in pursuance of said contract so made by 



86 SUPERIOR COURT REPORT& 



The iBdiftBApolii Hotel Comfmnj •• Tke Board of Goaotj OomniKioBeit. 



•aid McCrmy and Englisbf "and ratified, confirmed and 
le-made," by said Hodgson as such architecCy and agent of 
the Coanty, and at bis special instance and request, pdaintifl 
delivered to the Coonty 5,266 yards of eartb, and tbe sarae 
quantity of sand, wbicb was received and used by tbe Board 
of Commissioners in tbe constmction of tbe Court House, 
and tbat said eartb, and sand was wortb, in tbe aggregate, 
at tbe time, and place of delivery, §7,37240. Tbat after- 
ward Hodgson made a measurement, and estimate of the 
material so delivered, and certified tbe same, fiiung tbe value 
thereof at 9&fl65J9(k 

Faurthf That plaintiff lud said account befi^ie tbe Com* 
missioners, wbo refused to allow the same, but passed an 
order allowing plaintiff •S^OCK^ not admitting tbe liability of 
the County on any contract, or any liability beyond tbe sum 
of 93,000, which was tbeur estimate of tbe value of tbe 
material to tbe County, and stipulating tbat plaintiff might 
accept tbe sum so allowed, without being estopped from 
prosecuting her claim for the residue alleged to be due. 

Is the County liable on tbe alleged contract entered into 
by McCray and English? Clearly not The Supreme 
Court, in the case of The Board of Ootnmissioners of Foj^ 
eUe CowUy v. ChUwoody 8 Ind., 506, said: <^The Board of 
County Commissioners is a Court of special, and limited 
jurisdiction. * * It is required to keep a record of its 
proceedings. It can only transact business as a Board when 
in session.** And in that case it was held tbat an order of 
tbe Commissioners made at a special ^fession, not held pur> 
suant to law, was invalid, unless confirmed by the Board 
when legally in session, as by adopting it, or ordering pay- 
ment upon it The same general principle is enunciatcKl in 
Campbell v. Breckinridge^ 8 Blackf., 471. Tbe contract of 
McCray and English was not made by them when sitting as 
a Board of Commissioners, and consequently created no 
liability on tbe part of the County. Indeed, plaintiff'a eonn-^ 



IN SPECIAL TERM, 1871. 87 

The IndiMiapolis Hotel Companj v. Tb« Board of CottDty CoBBlMioaon. 

sel concede that, of itself this oontract is not safficient to 
sustain the action. 

Nor do I regard the contract made by Hodgson as obliga^ 
tory on the County. By the terms of his employment ha 
was not empowered to make contracts absolately, bat only 
subject to the approval of the Board of Commissioners. 

The complaint shows that the Board of Commissionen 
refused to approve this contract, and expressly disclaimed it 
Nor is the plaintifl's claim strengthened by the allegation 
that the architect measured the material furnished by plain- 
tiff, and fixed a price upon it, because, his authority to make 
estimates, and certify allowances, could be exercised only in 
those cases where supplies had been furnished pursuant to a 
contract approved by the Board of Commissioners. 

But there is enough in the complaint to sustain an action 
for material furnished, independent of the oontracts of the 
two Commissioners, and the architect, and to enable the 
plaintiff to recover the actual value of such material It is 
charged that the earth, and sand was delivered at the special 
instance, and request of the architect, that the Commissioners 
have used the same in constructing the Court House, and 
that it is worth a certain sum. For this reason the demurrar 
is overruled. 



.-£-: i 



... ••. • : jT 



•^f^ Zm 



t . m~. 



IN GENERAL TERM, 1871. 



89 



liib *. The IndUDtpoHs, Peru A Chicago Railwaj GompaDj. 

!; that the plaintiff and his associates fully performed the 

id on their part, and that the Peru & Indianapolis 

Company laid the iron on said switch, and main- 

and used the same as a shipping station until January, 

[when the road and its franchises were purchased by 

}fendant at a sale made by the United States Marshal, 

lecree of foreclosure rendered in the Circuit Court of 

fnited States, District of Indiana, in the year 1863; 

\e defendant took possession of the road, and the 

in question, under said purcha^:e, and continued to 

switch for shipping purposes, and a way-station, with 

lowledge of the contract between plaintiff and the 

Indianapolis Railroad Company, until June, 1870, 

[defendant tore up and destroyed said switch. It is 

averred that by reason of the destruction of said 

the plaintiff has been deprived of a shipping station, 

pat to great inconvenience in shipping away his stock, 

horses, hogs, sheep, and grain, and is deprived of the 

of having products brought to, and delivered at said 

which was situated near and convenient to plaintiff's 

|that bis interests in that behalf are separate and dis- 

iro those of all other persons, and that by reason of 

lleged wrongful act of the defendant^ he has suffered 

injury to his damage, &c. A demurrer was sustained 

complaint, and final judgment rendered for defendant 

tcb the plaintiff excepted, and appealed to the General 



complaint does not aver that the contract between 

lintiff and the Peru & Indianapolis Railroad Company 

writing. The presumption is, therefore, that it was 

»I — Harper et al v. Mil'er et ai^ 27 Ind., 277. It does 

rer that the contract was made, and the switch built 

the execution of the mortgage, nor that the 

Lgecy at the time of its execution had notice that 

claimed an interest in the switch. Neither does it 



88 SUPERIOR COURT REPORTS. 



Smith 9. The lodiaDapolis, Peru k Chicago Railway Conipanj. 



IN GENERAL TERM. 



Andrew Smith, Appellant, v. The Indianapolis, Peru & 

Chicago Railway Company. 

Appeal from Blair, Judge. 

BaUroad — License to^ and permissive use of lands fry, how 

revocable — Contract^ pleading- on. 

Where the complaint does not aver that a contract is in writing, the pre- 
■umptlon is that it was bj parol. 

Where parties living adjaceivt to a railroad track, made the grade, and fur- 
nished the cross-ties for a switch for neighborhood convenience, under 
a contract with the railroad company that the switch should remain 
permanently, &c.. 

Held: That after the road, and franchises of the coniracting company had 
been sold under a decree of foreclosure, the corporation purchasing the 
same might remove the switch, unices It assumed the original contract 
under Sec. 3 of the Railroad Act of March 3, 1865. 

Hanna Sf Kneflery R. E. Smith, for appellant 

Hendricks, Hord Sf Hendricks, McDonald, Butler Sf Mc- 
Donald, for appellee. 

Newcomb, J. — The complaint in thi:s case alleges that in 
the year 1859, the plaintiff, and divers other parlies, con- 
tracted with the Peru & Indianapolis Railroad Company to 
grade, and farnish with cross-ties a switch, at the village of 
Vertland ; that the railroad company agreed that it would 
furnish the irorlfltfnd lay the track on said switch, and forever 
thereafter keep the same in repair, and that it should remain 
a permanent switch and shipping 8tation,for the use of the par- 
ties so grading, and furnishing the ties, and for the public gen- 



IN GENERAL TERM, 1871. 89 

Smith p. The Indiaoapolis, Peru & Chicago Railwaj GompaDj. 

erally ; that the plaintiff' and his associates fully performed the 
contract on their part, and that the Peru & Indianapolis 
Railroad Connpany laid the iron on said switch, and main- 
tained and used the same as a shipping station until January, 
1864, when the road and its franchises were purchased by 
the defendant at a sale made by the United States Marshal, 
on a decree of foreclosure rendered in the Circuit Court of 
the United States, District of Indiana, in the year 1863; 
that the defendant took possession of the road, and the 
switch in question, under said purchase, and continued to 
use the switch for shipping purposes, and a way-station, with 
full knowledge of the contract between plaintiff* and the 
Pern & Indianapolis Railroad Company, until June, 1870, 
when defendant tore up and destroyed said switch. It is 
further averred that by reason of the destruction of said 
switch, the plaintiff has been deprived of a shipping station, 
and is put to great inconvenience in shipping away his stock, 
cattle, horses, hogs, sheep, and grain, and is deprived of the 
means of having products brought to, and delivered at said 
switch which was situated near and convenient to plaintiff's 
farm ; that his interests in that behalf are separate and dis- 
tinct from those of all other persons, and that by reason of 
said alleged wrongful act of the defendant, he has suffered 
great injury to his damage, &c. A demurrer was sustained 
to this complaint, and final judgment rendered for defendant 
to which the plaintiff excepted, and appealed to the General 
Term. 

The complaint does not aver that the contract between 
the plaintiff and the Peru & Indianapolis Railroad Company 
was in writing. The presumption is, therefore, that it was 
by parol — Harper et al v. Mil'er et a/, 27 Ind., 277. It does 
not aver that the contract was made, and the switch built 
prior to the execution of the mortgage, nor that the 
mortgagee, at the time of its execution had notice that 
plaintiff claimed an interest in the switch. Neither does it 



SUPERIOR CO 



timith ». Tba Id' 



nnpoti*, P«ra 



aver that the switch was located 

The plaintiff bases his claii 
much as the defendant used the 
the purchase of the road at the 
President of the Peru & Itidiar^ 
became a Director, and the Super 
Uh, Peru & Chicago Railway 
knowledge of the contract betwe« 
Company, it mast be presumed t 
and assumed the liability of the ': 
road Company under the contract 
his associates. 

By Section 3, of an Act of the G^ 
March 3, 1865, entitled "An Act 
contirm the sale of railroads, to 
same to form corporations, and to 
and to define their rights, powers, 
anch corporations to purchase, and 
branch roads, and to operate and r 
among other things, provided thate< 
power, at any time after the formal' 
aforesaid, to assume any debts anc- 
corporation, and to make such adj 
with any stockholder, or stockbold< 
of such former corporation, as may t 
We think it a clear proposition t) 
did not give the plaintlfl any 
Vertland. The contract was a pers 
it was, indeed, competent for the def 
the Act of 1865, but which he ha- 
manner as to give the plaintiff a 
removal of the switch. In order to 
the performance of the contract < 
Peru & Indianapolis Railroad Coi 
must have been a direct assumption 







IN GENERAL TERM, 1871. 91 

Smith *. The IndiaaapoUf, Peni dt Chioigo Bailwaj Compaay. 

defendant. Such assamption can not be inferred from the 
nse of the switch, wbichf for anything the complaint shows, 
passed nnincumbered to the defendant by the Marshal's sale 
of Janoary, 18&4| fourteen months before the enactment of 
the statute of March 3, 1865. 

During these fourteen nnonths the defendant can not be 
held to have assumed the alleged liability of the former 
corporation, by reason of her use of a switch belonging to 
herself by virtue of the Marshal's sale, nor could a liability 
attach under the Act of 1865, except at the option and 
election of defendant 

The judgment at Special Term is therefore affirmed with 
costs. 



Note. — ^li do« not mutter whether the lioenie be by parol, or in writinf, 
•o loog fts it remiiioi a mere licenie, not conrerted iote » eonTejance, grant, 
or eontraet, nor rendered irroTOcable by ettoppel, ei, wider iome circom- 
tteacet, it nay be in equity, tbongb not at law, it ean not create or tranfer 
an interest in land. Ste En^lith Gue#, ui 11 Messton ^ Welibf*$ Report^ 
Ex, 848; 4 ManU # 8dmm$ JUp,, K, B„ 666 ; 4 SaH^ 107; 6 BamwtU # 
CrenmW»Rip9^ 22; 8 IK, 288; 11 E, C, L., 207; 1&/6., 219. Amerieam 
Qmm: 15 Wend, 384; 23 Omiii., 214; U Ma$$^ 633; 4 K. /., 47; 6 M^., 20. 

A mere liceoie affecting land ii at law always roTOoable, even tbongb 
granted for a Talnable consideration. 4 Ba$t, 107; 9 M. t ^n 833. 

Usage eobnected wilb tbe granting of tbis sort of accommodation by tbe 
Railroad Company, will not Justify tbe inference tbat a perpetual easement 
in this tradL was conceded. 11 Am, Iam Reg^ (m. s.}, 374, 378. 



flB SUPERIOR COURT REPORTa 



Magoira et al p. Smook et oL 



IN GENERAL TERM. 



Douglas Maouire et al v, William C. Smock et oL 

Appeal from Raxd, Jadge. 

Common Council — Petition tOy presumed to be made in good 

faith — Money consideration for signature to — 

Petition void — Practice. 

The members of the GommoD Conocil of a city in acting upon a petition for 
the improvement of a atreet, have a ri^ht to assume that the petition is 
made in good faith by the owners of real estate, who are willing to pay 
their share of the burden, and who desircf the improTement, and that 
all the petitioners aro uninfluenced by any combination, by which a few, 
who are anxious for the improvement to be mad**, have agreed to pay a 
consideration, either directly or indirectly, to procure the signature of 
others to the petition. 

Good faith toward the owners of real estate, who are in the minority, and 
who are opposed to the improvement^ and to having the burden imposed 
upon themselves, required tbat the peUtieners should all act in good 
faith, and all be willing to assume their due portion of the tax, and that 
they should not be paid a consideration for signing the petition. 

An agreement, by which a sum of money is guaranteed lo be paid to cer- 
tain persons, provided they will petition the Common Council of a 
city for the improvement of a street, is void, as against public policy, 
and can not be enforced. 

Where a portion of pleading is struck out on motion, but no bill of excep- 
tions is filed making the portion struck out a part of the record, no 
question is presented on appeal, upon the ruling of the Court in strikiug 
out. 

Where specific facts are set <mi in aa answer, from which a Ugal ioferenoe 
arises that the agreement sued on is corrupt and void, as against public 
policy, it is not error to sustain a demurrer to a reply, stating in genera] 
terms that the contract sued on waA acceptc-d, and the acts of the plain- 
tifT, in compliance'with the ggreement, were donoiin good faith, witht»ut 
«oy desire, or design to exercise a corrupt, or fraudulent influence. 



IN GENERAL TERM, 1872. 93 



MHguire et al v. Smock et al 



McDonald^ Butler Sf McDonald^ for appellants. 
Test^ Bums Sf Wright^ for appellee. 

Blair, J. — This action is upon the following instrament, 
made by the defendants to the plaintiffs: 

" Indianapolis, April 8, 1870. 

"We, the undersigned, guarantee unto Douglass Magnire 
and William J. Gillespie the sum of eight hundred dollars 
on the assessment for improving Delaware street with the 
Nicholson pavement in front of their property on said street, 
provided they petition the City Council of Indianapolis for 
said improvement* Wm. C. Smock, 

D. H. WiLKS, 

J. T. Wright.^ 

The plaintif& aver in their complaint that in pursuance of 
the contract, they did petition the City Council, and thereby 
became liable to pay large sums of money upon assessments 
made upon their property for said improvement, and that 
they have paid for the same a large sum in excess of the 
amount agreed to be paid by the defendants ; and that the 
defendants were owners of real estate bordering on said 
strtet, and were anxious to have said improvement made, to 
enhance the value of their property, and that defendants 
made the contract in consideration of the benefits they would 
derive; and there is a balance yet due plaintiffs on the 
agreement, &c. 

A demurrer was filed to the complaint, which was over- 
ruled, and exceptions taken by the defendants. 

The defendants then answered in three paragraphs (the 
first two of which were afterwards withdrawn), the tbird 
being substantially as follows : 

That on the 1st day of April, 1870, before the making of 
the agreement in complaint mentioned, a question was pend- 
ing before the Common Council of the City of Indianapolis, 



94 SUPERIOR COURT REPORT& 

If ftgnire •i ai *. Smock H aL 

tts to whether they shonld contract for the taking ap of an 
improvement that had been previously made at the expense 
of the property holders on Delaware street, north from 
Washington street to Massachasetts Avenne, and lay down 
on the same the Nicholson pavement, at great expense to 
the city, and the property owners on the line of the street; 
that the plaintifis owned real estate on said street, and 
together with Andrew Wallace, William Smith, Samuel 
W. Bristor, Isaac Kahn, John Norris, William Wilkinson, 
John Coburn, and others, owning real estate on the same, 
had signed a remonstrance addressed to said Common 
Council, against the proposed improvement, and afterward 
the plaintiffs ^^ corruptly and fraudulently entered into the 
agreement" set out in complaint, and did petition for the 
improvement of said street with the Nicholson pavement ; 
and afterward the Common Council passed an ordinance 
providing for said improvement, and providing that the 
expense of the same be paid by the owners of real estate 
bordering on said street, except the public grounds owned by 
the city, and the crossings of streets and alleys; that after^ 
ward the contract having been let by the Common Council, 
and the work done, precepts were issued to the contractors, 
to collect from the owners of Iot« adjoining said street the 
amount to be paid by each, and that Andrew Wallace paid 
$672.50, and William Smith paid $980.50, and the others 
above, who had with the plaintifis signed the remonstrance, 
were compelled to pay the several sums assessed against 
them, and that the city of Indianapolis, and other owners of 
real estate on the line of the street paid large sums ; where* 
fore the defendants say that the contract sued upon was 
corrupt, and plaintiffs ought not to maintain their action 
thereon. 

The plaintiffs filed a demurrer to this answer, which was 
overruled by the Court, and excepted to by the plaintifib. 

The plaintiffs then filed a reply, in substance as follows : 



IN GENERAL TERM, 1873. 95 

Ifagaire €i al «. Smock cl aL 

After admitting the signing of a remonstrance, as set oat 
in the answer, they say they signed it, not becanse they were 
oppoi<ed to the constraction of the proposed improvement, 
but becanse they did not ^feel pecuniarily able to bear the 
expense that woald be assessed against their property by 
reason of said improvement," and that afterward the defend- 
ants, without solicitation from the plaintiffs, proposed to 
make the agreement set out in complaint, in consideration of 
the beneGts that would arise to them by the proposed 
improvement enhancing the value of their property on said 
street [^And said plaintiffs aver that they accepted said 
contract, and thereafter signed said petition to the Common 
Council for said improvement in perfect good faith, and with- 
out any desire, or design whatever to corrnptly or fraudulently 
influence the said Common Council, or any officer, or person 
connected with the government of said city of Indianapolis, 
or any person whatever."] 

That after they had received said contract, relying upon 
the same in good faith to aid them in paying their assess- 
ments to the amount named in the contract, they ''were 
willing and anxious to have said improvements made, and 
were willing to pay therefor all over and above the amount 
agreed to be paid by defendants, and so desiring signed said 
petition in good faith for the purpose of procuring said 
improvement to be made, and they say that they have 
paid for said improvements a much larger amount than 
the sum so agreed to be paid by the defendants. Where- 
fore, &C. 

A motion was made by the defendants to strike out all of 
the above reply except that part enclosed in brackets above. 
This motion was sustained by the Court, and the plaintiffs 
excepted. 

The defendants then filed a demurrer to the reply, which 
demurrer the Court sustained, and the plaintiffs excepted. 

The plaintiffs not replying further, judgment was rendered 



96 SUPERIOR COURT REPORTS. 

Maguire et al v. Smock et al, 

for the defendants, and the plaintiffs appealed to Greneral 
Term. 

The first error asssigned is the overruling of the demarrer 
to the answer. 

The Common Coancil of a city may act in providing for 
the improvement of streets, first on a petition signed by the 
resident owners of two-thirds of the whole front line of lots, 
or parts of lots, or secondly, of their own motion, withoat 
petition, whenever two-thirds of the members of the Coancil 
vote therefor. Act for the incorporation of cities, Sections 
68 and 70. 

The complaint shows that the agreement sued on was 
made by the defendants, on condition that the plaintiff 
should '' petition the City Council of Indianapolis for said 
improvement," and they allege that in pursuance thereof 
they did petition the Council. As it appears from the com- 
plaint, and answer, that a petition was presented, we are led 
to infer that the Council acted, in ordering, and contracting 
for the improvement, on a petition signed by the owners of 
the real estate, and not on their own motion by a vote of 
two-thirds of the members. 

If the resident owners of two-thirds of the whole firont 
line of lots bordering On a street petition for the improve- 
ment of the street, they may thus be the means of imposing 
upon the owners of the other third a tax to pay for an 
improvement to which they may be utterly opposed. It 
appears by the answer that the plaintiffs, as well as other 
owners on the line of the proposed improvement, were 
opposed to it, and the answer presents the question whether 
an agreement can be enforced, by which a portion of those 
who favor the improvement, promise to pay a portion of 
those opposed, a part of the cost of the improvement in 
front of their property to induce them to abandon their 
opposition, and petition the Common Council iii favor of the 
improvement 



> 



IN GENERAL TERM, 1872. 97 

IfagDire et al v. Smock et oL 

The members of the Common Council of the City, in 
determining whether an ordinance shall be passed for the 
improvement of a street must exercise their judgment, and 
whether the ordinance is in its nature judicial, or legislative, 
the influences brought to bear upon them, to inform, or influ- 
ence their judgment, and action, should proceed from the 
proper source, unmixed with corruption, or fraud. The^ 
members of the Council have a right to assume that the 
petition is made in good faith, by the owners of real estate, 
who are willing to pay their share of the burden, and who 
desire the improvement ; and that all of the petitioners are 
uninfluenced by any combination, by which a few who are 
anxious for the improvement to be made have agreed to pay 
a consideration, either directly, or indirectly, to procure the 
signature of others to the petition. Good faith toward the 
owners of real estate, who are in the minority, and who are 
opposed to the improvement, and to having the burden 
imposed upon themselves, requires that the petitioners should 
all act in good faith, and all be willing to assume their due 
portion of the tax, and that they should not be paid a con- 
sideration for signing the petition. Establish the fact that 
such agreements arc not in violation of law, as against pub- 
lic policy, and may be enforced in courts of justice, and 
the owners of real estate on our streets would be at the 
mercy of combinations, or of greedy contractors who might 
choose to donate a portion of their anticipated profits to 
the procuring of signatures to petitions in favor of street 
improvements. All reliance in petitions, as expressions 
of the honest wishes of the petitioners would at once 
be destroyed, and distrust and suspicion take the place of 
that confidence and good faith which should exist in all such 
proceedings. We believe these views are fully sustained by 
the following authorities, and that the action of the Court 
was right in overruling the demurrer to the answer: How- 
ard V. The First IndpH Church of Baltimore, 18 MdL 461 ; 
7 



96 SUPERIOR COURT REPORTa 

Magoite <<«{•. Saoek •! mL 

Brown v. Brownj 34 Barb., 533; DevKn ▼. Bro^y, 33 ib, 518; 
FiUIer et al v. Dame, 18 Pick, 471 ; Cook v. iS&^MiMii, 24 DL, 
614; Gray v. .Bboifc, 14 N. Y., 449; MarshaU v. foft. 4- O. 
£. £. Cb., 16 Howard, 314. 

There is no bill of exceptions, making the parts of the 
reply which were struck out on motion of the defendants, a 
part of the record, and hence the questions arising upon the 
ruling of the Court in this respect, are not properly pre- 
sented for our consideration. Saunders v. HeaUm et al 12, 
Ind., 20; Oiler et al v. Bodkey, 17 Ind., 600; HiU et al v. 
Jameson^ 16 ib., 125. 

Where specific facts are set out in an answer, as in 
this case, from which a legal inference arises that the agree- 
ment sued on is corrapt and void as against public policy, it 
is not error to sustain a demurrer to a reply stating in gen- 
eral terms that the contract was accepted, and the petition 
signed in good faith, without any desire or design to exercise 
a corrupt or fraudulent influence; and taken as a whole, we 
think the reply was bad, and the plaintiffs were not injured 
by the rulings. 

The defendants assign for cross error the overruling of the 
demurrer to the complaint. This presents a question of 
more difficulty ; but as the case was disposed of on the subse- 
quent pleadings by the Court at Special Term, and we think 
by correct rulings, the question is not now important But 
as the complaint does not show that the rights of any per- 
sons, other than the plaintiffs aud the defendants, would be 
affected by the proposed petition, and improvement of the 
street, nor the character of the question that was pending for 
action before the Council, we are inclined to the opinion that 
the complaint was sufficient 

The judgment is affirmed. 



NoTX. — All contraots for a eoniiDgent eompensation for obtoininf legitl** 
tioii, or to 080 pertonal, or any secret, or tinifter inflaenoe oa legiflatioii, ar* 



IN SPECIAL TERM, 1871. 99 

Root 9. Erdelmyer, ei al, 

▼Old. 16 How., 314; 6 Dmna, 366; 1 Aik,, 264, (h.); 18 Plurft., 472; 10 
Barbour, Sigt. Ct., 489. 

For extent of powers, jnrisdietioa, and liability of municipal corpora- 
tioos. See <ft« eaae of Clark ▼. (% of Dee M^inee, in 6 Am. Law Reg^ (v. %.\ 
146 — a valuable opinion with collection of authorities bearing upon the 
questions discussed— ^2m 5 Am, Lam Reg^, (m. s.), 38, 446, 202. 



IN SPECIAL TERM, 1871. 



Deloss Root t;. Frank Erdelmter, Treasurer of Marion 

County, et aL 

Frajer for Injunction, to restrain the Count j Treasurer from enforcing pay- 
ment of taxes on bank stock. 

School Law — TmHees wader ^ duty of — Taxes under ^ classifi^ 

cation of-^Municipal purposes^ term defined^ and 

applied — Township Trustees^ tax levied by. 

A special school tax leTied pursuant to Section 12 of the School Law of 
March 6, 1865, does not exempt bank stock bj rirtue of Section 9, of the 
Bank Tax Act approved March 15, 1867, which Mvides that: ** Noth- 
ing in this, or any other act shall be to const|jiSa as to authoriie the 
taxation of stock in the Bank of the State of Indiana, or in any National 
Bank, for muoicipal purposes." 

The term ^'municipal purposes," as used in that Act, has no application to 
township taxes, nor to special school taxes levied by trustees of town- 
ships, or by school trustees of incorporated cities, em special school 
taxes, under the authority conferred by Section 12, eupra of the Act of 
1865. 

Such taxes are levied pursuant to the general law of the State, and for pur- 
poses connected with the general internal administration of the State, 




100 SUPERIOR COURT REPOltTS. 

Boot V. Erdelmjer et al, 

I ■ I I — — — " 

or to carry out the general common school system, and do not come 
within the definition of municipal taxes. 

£L jS. Perkins^ for plaintifE 
Barbour Sf Jacobs^ for defendants. 

Newcomb, J. — The plaintiff alleges that be owns stock in 
the First National Bank of Indianapolis, to the annount of 
948,000, and on behalf of himself, and all others interested 
in the questions presented, he files his complaint, praying an 
injunction to restrain Erdelmyer, as County Treasurer, from 
enforcing payment of the following taxes charged against 
plaintiff's said bank stock on the tax duplicate of Marion 
County for the year 1870, namely : 

Firsty The township tax levied by the Trustee of Center 
Township. 

Second^ A special school tax of twenty-five eents on each 
9100, alleged to have been levied by the city of Indianapo- 
lis; and 

Thirds A tax of twenty cents on each 9100 of taxables, 
levied by the Commissioners of Marion County, pursuant to 
a popular vote of the electors of the Township, as a dona- 
tion to aid in the construction of the Indiana, and Illinois 
Central Railroad, on certain specified conditions. 

The grounds on which the plaintiff bases his complaint 
are: 

That the township, and special school taxes are levied for 
municipal purposes, and by law his bank stock is not taxable 
for those purposes. 

Second^ As to the railroad tax ; that the statute authorizing 
it is uuconstutional. That the railroad company is not con- 
structing, and does not intend to construct said road througH 
Center Township, nor through any of the counties of this 
State east of the line of counties bordering on the State of 



IN SPECIAL TERM, 1871. 101 

Root 9. Brdelmyer et al. 

Illinois; and further, that the election at which the donation 
was voted, was not conducted according to law. 

None of these objections against the railroad tax were 
insisted on in argument, except that going to the constitu- 
tionality of the tax. 

The defendants demur to the complaint, and assign for 
causes of demurrer — 

Firsty That the Court has no jurisdiction to enjoin the 
collection of taxes by the County Treasurer. 

Second, That the complainf does not set forth sufficient 
facts to constitute a cause of action. 

Thirdj That there is a misjoinder of parties defendant 

Counsel for defendants dispute the power of the Court to 
enjoin the collection of taxes in any case, and various deci- 
sions of the courts of other States are cited to support their 
view of the question; but it is sufficient to ss^y that in 
Indiana the decisions are the other way« Our Supreme 
Court, in a long line of cases, beginning with that of The 
State Bank of Indiana v. The City of Madison, 3 Ind., 43, 
and ending with Turner v. The Thomtown and Mechanics- 
burg Gravel Road Company, decided November 30, 1870, 
has tacitly recognized, or expressly asserted this power as 
belonging to the Courts of this State exercising equity juris- 
diction; and in the latter case the Court say, in so man^y 
words — " Equity will enjoin the collection of a void tax." 

These authorities dispose of the question of jurisdiction. 

The taxation of shares of stock in national, and other 
banks in this State, is governed by an Act of the General 
Assembly, approved March 15, 1867, the first section of 
which is as follows: " The shares of capital stock owned, or 
held by any person, or body corporate, in any bank, or bank- 
ing association chartered, or organized under the laws of the 
United States, and having its banking house, or place of 
business in this State, shall be included in the valuation of 
the personal property of the owner thereof for taxation, and 



102 SUPERIOR COXTRT REPORT& 

Root V. Ardclmytr ti oL 

shall be taxed at tbe place where soch bank or baaking asso* 
ciation is, or may be loeated, at the same rate that is> or may 
be assessed on other taxable property in the hands of indi- 
vidnals in this State.'' 

The second, and third sections prescribe tbe manner in 
which the County Atiditor may obtain a statement of the 
stockholders of such banks, with the amount, and value of 
the shares by them owned respectively; and the third section 
provides that, after receiving soch statement, '^the Auditor 
shall proceed to enter tbe names of tbe stockholcters of such 
bank,, or banking association on the tax duplicate of the 
current year, and the amount, and value of stock held by 
such stockholder, respectively, and shall assess thereon to the 
owner, or bolder thereof, tbe proper amount of taxes, accord- 
ing to the rate that may at the time be chargable on other 
moneyed capital, and personal property subject to taxation; 
and if any such stockholder shall be assessed on said dupli- 
cate for either real, or personal property other than such 
stock, the amount and value of his said stock shall be added 
to his assessment as personal property." 

By Section 8> (^ aa Act approved February 18^ 1859, 1 
6. & IL, 638, it is provided that the Township Trustee 
"shall,. at tbe March session of the CJounty Board annually, 
with the advice and concurrence of the County Commis- 
sioners, levy a tax on the property of such township for 
Township, road, and other purposes^ and report the same to 
the County Auditor,, who shall enter the same on the proper 
tax duplicate, in a seperate column, or columns, and that the 
Treasurer shall collect it the same as other taxes are collected* 
But in case of the failure of such Commissioners and Trus- 
tee to concur, then the Board of County Commissioners 
shall determine upon, and levy such Township, road, and 
other taxes.'' 

It was by virtue of this statute that the township tax 
complained of was levied^ 



IN SPECIAL TERM, 1871. 103 

Root V. Srdelmyer et al. 

The special school tax, as shown by exhibits filed with the 
complaint, was levied by three school trastees, chosen by 
the Common Council of the City of Indianapolis^ in obe- 
dience to Section 5 of the School Law of March 6, 1865. 
That section is mandatory, leaving no discretion in the 
Council ; nor has the Council any authority over, or control 
of the trustees so chosen, further than to require an annual 
t^port of their receipts, and disbursements. 

The fourth section of that law makes " each civil town- 
ship, and each incorporated city in the several counties of 
this State a distinct municipal corporation for school pur- 
poses, by the name, and style of the civil township, town, or 
city corporation," etc 

It is proper to remark here that the Common Council of a 
city has no agency, or authority in levying the special school 
tax, nor any control of its disbursement The tax levied by 
the trustees is expended by them for the building, and 
repair of school houses, and in paying the expenses of the 
common schools, other than for tuition, which is provided for 
by a general State tax. No part of the general, or special 
school tax goes into the city treasury. 

The tenth Section of the school law requires the trustees 
"to build, or otherwise provide suitable houses, furniture, 
and apparatus, and other articles, and educational appliances 
necessary for the thorough organization, and efficient man- 
agement of said schools." This duty is imperative. The 
trustees may not in their discretion furnish, or not furnbh 
school houses, furniture, etc,, to the extent necessary for a 
"thorough organization, and efficient management of the 
schools." The only discretion they have is as to the style, 
and character of the houses, etc., and the amount of money 
that shall be expended on them beyond furnishing comforta- 
ble quarters for pupils, and the needful appliances for making 
the schools efficient. 

To enable the trustees to perform the duties so imposed 



104 SUPERIOR COURT REPORTa 

Root V Erdelm jer ei al. 

upon them, the twelfth Section of the same statute clothes 
them with power to levy a special tax, as follows : 

'^ The trustees of the several townships, towns, and cities 
shall have power to levy a special tax, in their respective 
townships, towns, or cities, for the construction, erecting, or 
repairing of school houses, providing furniture, school 'appa- 
ratus and fuel therefor, and the payment of other necessary 
expenses of the school, except tuition, but no tax shall 
exceed twenty-five cents on each one hundred dollars of 
taxable property, and fifty cents on each poll, in any one 
year, ai:\d the income from such tax shall be denominated the 
special school revenue." 

The thirteenth Section requires that ^ the County Auditor 
shall, upon the property and polls liable to taxation for State 
and County purposes, make the proper assessments of special 
school tax levied by the trustees, in the same manner as for 
State, and County revenue, and shall set down the amount 
of said tax on his tax list, and duplicate thereof, as other 
taxes are set down, in appropriate columns," etc. 

On these statutes there can be no question that the plain- 
tiff's bank stock is liable to pay the township, and special 
school taxes assessed upon it, unless there is some other 
statute exempting it The thirteenth Section of the school 
law expressly declares that all property liable to State, and 
County taxation shall be assessed for this special school tax ; 
and the clear meaning of the statute imposing a township 
tax is that it shall be levied on all the property of the town- 
ship assessed upon the tax duplicate of the County for taxa- 
tion for State, and County purposes. 

But it is claimed, and the proposition has been argued 
with much earnestness, and ability by plaintiff's counsel, that 
bank stock is exempted from these taxes by the ninth Sec- 
tion of the Act of 1867, above cited. That Section reads 
as follows: '^ Nothing in this, or any other act, shall be so 
construed as to authorize the taxation of stock in the Bank 




IN SPECIAL TERM, 1871. 105 

Root V. Erdelmjer et aL 

of the State of Indiana, or in any National bank for munici- 
pal purposes." 

The 'determination of this controversy must depend there- 
fore upon the proper construction of the phrase, '' municipal 
purposes," as used in the Section last quoted. The words, 
"municipal," "municipality," and "municipal law," have two 
well understood legal meanings— one general, the other 
limited, or particular. In relation to the Commonwealth of 
nations, a separate, independent State is a municipal organi- 
zation, and its laws are denominated municipal laws, as 
contra-distinguished from the law of nations. 

Relatively to the State, all its minor sub-divisions of coun- 
ties, townships, school districts, etc, are sometimes termed 
municipal corporations, and sometimes qimsi corporations, or 
bodies politic, and corporate. Lastly, we have towns, and 
cities, incorporated by special acts of legislation, or by gen- 
eral laws passed for that purpose, and clothed with many 
powers, and privileges not belonging to the people of the 
State at large. The following citations from standard legal 
works will illustrate the varied uses, and meaning of 
these terms. In Bouvier's Law Dictionary they are defined 
thus: 

"Municipal: Strictly this word applies only to what 
belongs to a city. Among the Romans, cities were called 
mufUcipia. These cities voluntarily joined the Roman 
Republic in relation to their sovereignty only, retaining their 
laws, their liberties, and their magistrates, who were thence 
called municipal magistrates. With us the word has a more 
extensive meaning ; for example, we call municipal law, not 
the law of a city only, but the law of the State. BL Com. 
Municipal is used in contradistinction to international; thus 
we say an offense against the law of nations is an interna- 
tional offense, but one committed against a particular, or 
separate community is a municipal offense." 

" Municipality : The body of officers, taken collectively. 



106 SUPERIOR COURT REPORTS. 

Boot V. Erdelmyer et al 

belonging to a city, who are appointed to manage the affairs, 
and defend its interests." 

In Wharton's Law Dictionar) is this definition : 

^ Municipal Law : That which pertains solely to the citi- 
zens, and inhabitants of a State, and is thus distinguished 
from political law, commercial law, and the law of nations. 
It is now, however, more usually applied to the customary 
laws that obtain in any particular city, or province, and 
which have no authority in neighboring places." 

In Walker's American Law, 219, it is said: *' Public 
corporations are those which are founded with public means, 
and for public purposes. Their criterion is, that no indi- 
vidual has any ' interest in their foundation, except as a 
member of the general body politic To this class belong 
all municipal corporations, beginning with the United States, 
and descending down through States, Ck)unties, Townships, 
school districts, and the like. These are for the most part 
denominated qiuisi corporations, since, with the exception of 
cities and boroughs, they require no special act of incorpo- 
ration. They possess scarcely any other corporate properties 
than those of holding property, and being parties to suits." 
See also Angel Sf Ames on Corporations^ Sections 15, 23. 

Burrill's Law Dictionary thus defines these terms : 

" Municipal : Belonging to a city, town, or place having 
the right of a local government; belonging to, or affecting a 
particular, or separate community. Local ; particular ; inde- 
pendent." 

'* Municipal Corporation : (Lat, villa corporcUo,). A 
public corporation ; a corporation created by government for 
political purposes, and having subordinate legislative powers 
to be exercised for local purposes, such as a county, city, 
town, or village. 2 Kent, 275." 

'' Municipal Law : The rule of law by which a particu- 
lar district, community, or nation is governed. The par- 
ticular law of a State, or nation, as distinguished from 




IN SPECIAL TEEM, 1871. 107 

Root V. Brdelmyev ei oL 

pablic, or international law. A rule of civil condact pre* 
scribed by the sopreme power in a State.** 

^ In a striet sensci the law of a particular place, snch as a 
city, or town. Originally the taw of a mufiicipium,^ or free 
town." 

^ MuNiciFiUM : A free, or privileged town ; one that had 
the right of being governed by its own laws^ and customs. 
Hence the Latin mumcipaXs^ and English municipal^' 

Now, in what sense did the Legislature use the word 
^municipal" in the Act of 1867? Not in its most general 
sense, certainly ; because,, in that sense, the State itself being 
a municipal corporation, the exempting clause would nullify 
the rest of the Act, and no tax could be levied on bank stock 
for State purposes. Was it intended to exempt bank stock 
from taxation for county purposes? That is not alleged in 
the complaint, nor during the four years this law has been 
in force has such a proposition been advanced by any stock- 
holder of any bank, so far as our court reports furnish 
evidence on that point But if county taxes are not 
imposed for municipal purposes, how can it be said that 
township taxes come under that denomination ? If the 
township is a municipal corporation, so is the county ; and 
it seems to me that if township taxes are prohibited under 
the 9th Section of the Act of 1867, county taxes must come 
under the same prohibition. 

It is manifest that to give the Act of 1867 any effect, or 
force whatever, we must use the word ^municipal" in its 
primary, and strict sense — giving it that construction, State 
taxes are excluded from the exemption clause, and so, I 
think^ are all other taxes except those levied by incorporated 
towns, and cities. This follows from the definitions of the 
term before cited, and from the inoperative character of the 
statute on any other construction. 

But there are additional arguments drawn from other 
statutes^ in favor of giving the words ^municipal purposes** 



108 SUPERIOR COURT REPORTS. 

Root V. Brdelmyer ei oL 

• ' . » ■ ~^^^— - 

this limited interpretation. In the nomenclature of oar tax 
laws it is believed there is not a single instance in which a 
tax levied for county, township, or school purposes is called 
a municipal tax, or a tax for a municipal purpose. On the 
contrary, each of these taxes has a statutory name- A tax 
levied for State purposes is called in the statute a state tax ; 
for county purposes, a county tax ; for township purposes, 
a township tax ; for school purposes, the general, or special 
school tax, as the case may be ; and such had been the case 
long prior to the enactment of the statute of 1867. This 
method of distinguishing by name the various taxes, was 
well known to the Legislature, and it must be presumed that 
if they had intended to shield bank stock from either of these 
ordinary taxes, they would have used apt, and unequivocal 
words to express such intent. 

Second^ Wherever in previous statutes this phrase, ^' mu- 
nicipal purposes," has been used, its application solely to 
incorporated towns, and cities is patent Two instances of 
this sort have con>e under my observation— one in an Act of 
the General Assembly, the other in the Constitution of the 
State. The former is found in the Act chartering the Bank 
of the State of Indiana, approved March 3, 1855, the 15th 
Section of which reads as follows: ^'The capital stock of 
said bank shall be subjected to the same rate of taxation for 
State, and County purposes as the stock of other moneyed 
corporations; and the real estate, and other property of said 
bank, and branches, situated in amy city, or town^ shall be 
taxable /or municipal purposes^ in the same manner as other 
property so situated, but the capital stock of said bank, or 
branches shall not be taxable for municipal purposes." It 
needs no argument beyond the reading of this Section to 
show that '^municipal purposes," as there used, means the 
purposes of the city, or town in which the bank is situated 

The other instance of the use of this phrase occurs in the 
fourth clause of the Schedule of the Constitution of 1851, 



IN SPECIAL TERM, 1871. 109 

Boot V Brdelmjer €t al. 

namely : ^ All Acts of incorporation for municipal purposes 
shall continue in foree under this Constitution, until such 
time a» the General Assembly shall in its discretion, modify, 
or repeal the same." 

When we consider that prior to the Constitution of 1851, 
all the cities of the State were operating under special 
*^ Acts of incorporation," and that many towns sought, and 
obtained from the Legislature special charters,instead of organ- 
izing under the general law for the incorporation of towns, 
it is apparent that the term ^ municipal purposes," as used 
in the above quoted clause of the Constitution, had refer- 
ence to Acts incorporating cities, and towns, and that it had 
no other application. It could have no reference to pre- 
existing laws organizing counties, and townships, for those 
civil sub-divisions 6i the State had already been recognized, 
and continued by Article VI of the Constitution, and by the 
ficst clause of the Schedule, which continued in force all 
laws not inconsistent with that Constitution. 

As by Section 13, of Article XI, the General Assembly 
was thenceforth prohibited from passing special Acts of 
incorporation, sind by the 23d Section of the Bill of Rights, 
it was provided that the General Assembly should not grant 
to any citizen, or class of citizens, privileges or immunities, 
which upon the same terms would not belong equally to all 
citizens, the fourth clause of the Schedule was, we may 
assume, adopted for the purpose of removing any doubts 
which might otherwise exist as to the continuance of city, 
and town organizations under charters then existing. 

Third. I am further impressed with the correctness of the 
construction I hav? given to the term ''municipal purposes," 
by the ruling ot our Supreme Court touching special exemp- 
tions of property irom taxation. '* These exemptions," said 
the Court, in Orr v. Baker ^ 4 Ind., 88, " as they are contrary 
to common right, are not to be favored by the Courts. They 
should be confined to the specified objects, and to such as by 



110 SUPERIOR COURT REPORTS. 



Root V. ErdeliDTor et al. 



reasonable intendment the Legislature mast have had in 
contemplation* In short, the statute which exempts persons, 
or property from taxation is to be constraed strictly." To 
the sahie effect is The Gammon Council v. McLean^ 8 Ind.,328. 

Following this rule, the word ^manicipaP in the Bank 
Tax Act, mast be given its primary and strict meaning. 

The complaint in this case is based on the theory that, 
because the township, and special school taxes are disbursed 
in the localities where they are collected, therefore they are 
necessarily municipal in their character, and the purposes for 
which they are levied, are municipal purposes. This seems 
to me an erroneous view of our township oi^nization. 
Townships are civil divisions of the State, and an essential 
feature in its internal administration. No special powers, or 
privileges are granted to citisens of one township over 
another. The township can not legislate; every township 
tax is levied to enable the proper officer to execute some 
general law of the State, in the enactment of which the 
township, as such, has no voice. The State provides that 
certain duties, regarded as essential to its proper internal 
administration, shall be performed by officers chosen by the 
voters of a township, and empowers the township trustee, 
under the supervision of the County Commissioners, to tax 
the property of the inhabitants of the township to raise the 
necessary means. The State is the governing power in the 
township, and the taxes levied under the name of town- 
ship taxes, are, in my judgment, levied for State purposes. 
In Chapter 1, Part 1, of the Revised Statutes of 1843^ 
townships are treated, and recognized as civil divisions of 
the State, and as a part of its internal administrative 
machinery, and the same character is given them by Article 
VI of the Constitution of 1851 . 

The case is even stronger against the plaintiff's theory of 
the character of the special school tax. This can not prop- 
erly be termed a tax for municipal purposes, unless the State 



IN SPECIAL TERM, 1871. Ill 

Boot V. Xrdcloiyer it aL 

tax proper is to be classed ander that head. This tax, and 
the daties of the trustee in connection therewith, are inte- 
gral, and necessary features of the common school system of 
the State, 'without which the system itself coald have no 
existence. The CTonstitation requires the General Assembly 
^to provide by law for a general system of common schools 
wherein tuition shall be without charge, and equally open to 
all.'' In obedience to this mandate the General Assembly 
has established a system of common schools throughout the 
State. It has provided, by a general and uniform tax for the 
expenses of tuition, and has delegated to the trustees of 
civil townships, and incorporated cities the power, and made 
it their absolute duty, to levy and collect taxes within their 
jurisdiction to furnish the necessary school houses, fur- 
niture, apparatus, dtc, necessary for the thorough organi- 
zation, and efficient management of the schools." The 
trustee has no legislative power, indeed he has no 
discretionary power as to whether he will, or will not 
provide the houses necessary for the nchools in his town- 
ship. His duty is mandatory; his discretion can only be 
exercised, within reasonable limits, in the matter of style, 
cost, quality of the buildings, and other appliances he 
is required to provide. In performing his duties, the trustee 
is executing a general law of the State, and administering 
an essential part of the common school system of the State. 
For this, as well as for the other reasons given, I hold that 
the special school tax is not levied for municipal purposes, 
within the purview of the Bank Tax Law of 1867. 

I have grave doubts of the constitutionality of the Act of 
the Legislature under which the railroad donation tax'Vas 
levied. It is difficult to reconcile with our theory of govern- 
ment the imposition of a public tax upon the willing, and 
unwilling, to raise a fund to be turned over as a gift to a 
private corporation. But a matter of so much gravity as 
this ought not, I think, to be passed upon, at least adversely 



112 SUPERIOR COURT REPORTS. 

Hedrick v Kramer. 

to the validity of the statute, by one only of the three Jadges 
comprising this Court. I will, therefore, pro formay sustain 
the demurrer to the complaint, and let this question go on 
appeal to the General Term, with the other legal questions 
in the case, if the plaintiff shall desire to take the opinion of 
the full bench on any, or all of them. 



Note.— On appeal to the General Term, Judge Rand declined to sitt for the 
reason that be was interested as a holder of National Bank etork. The 
judgment at iSpecial Term was affirmed />ro/orma, bj the other two Jadges, 
without a written opinion. Thereupon the plaintiff appealed to the Supreme 
Court, where the judgipent of the Superior Court was in all thinga affirmed. 
—Rep. 



IN GENERAL TERM, 1871. 



John Hrdrick, Appellant, v. Henry Kramer. . 

Appeal from Rand, Judge. 

Costs — Rule as to^ in Superior Court 

The rule as to costs under Section 337, of the Code, applies as well to actions 
begun, and determined in the Superior Court. 

Spahr Sf Daily ^ for defendant. 

Woollen Sf Ruddell, for appellee. 

Blaik, J. — This was a suit commenced in this Court to 
recover on a breach of warrants in the sale, or exchange of 
personal property. 



IN GENERAL TERM, 1871. 113 

Hedrickfl v Kramer. 

There was a trial at Special Term, and the plaintiff recov- 
ered a verdict, and judgment for thirty dollars. 

The defendant then moved to tax the costs to the plaintiff, 
which motion the Ck)urt sustained. To this the plaintiff 
excepted ; and this is the only error presented in the case. 

It is urged that the 397th Section of the Code (2 G. & H., 

p. 227,) which provides that in actions commenced in " the 

Circuit Court, or Common Pleas, if the plaintiff recover less 

than fifty dollars exclusive of costs, he shall pay costs, &c.," 

does not apply to this Court, for the reason, that at the time 

of the passage of that Act this Court was not organized, 

and the Act establishing it contains no express provisions 

extending the provisions of the Section cited to the Superior 
Court 

It is true the Act organizing this Court does not in express 

terms extend the above provision to this Court. It was 
evidently the intention of the Section 6ited, that actions 
where the recovery would be less than fifty dollars should be 
brought in Justices' courts, and the Act organizing this 
Court was evidently not intended to change that rule. This 
Court was organized to transact that class of litigation 
which was crowding the dockets of the Circuit, and Common 
Pleas Courts, and not to relieve the dockets of Justices of 
the Peace. The whole context of the Act establishing this 
Court shows that it was the intention of the Legislature 
that the same rule as to costs should apply in this Court 
that prevail in the Circuit and Common Pleas Courts. This 
is in accordance with the rule of construction announced by 
Chief Justice Marshall. 
''The spirit as well as the letter of a statute must be 

respected, and where the whole context of the law demon- 
strates a particular intent in the Legislature to effect a certain 
object, some degree of implication may be called in to aid 
the intent"' Derousseau et al v. The United States^ 6 
Cranch, 307. 

The judgment in Special Term is affirmed. 
7 



114 SUPERIOR COURT REPORTS. 



Evans «. Wadkint. 



IN GENERAL TERM, 1872. 



Madison Evans v. David H. Wadkins, Appellant. 

Appeal from Blaib, Judge. 

Appraisement — when ineffective — Sale under ^ when void — 

Appraisers — how chosen — 
Statutes construed 

An appraisement ehonld not be of the rental Talae in gross for the term of 
seven years, but of each year separately, otherwise it is not snch an 
appraisement as will authoriie the offer by the Sheriff, of the rents 
and profits. 

An appraisement made without the knowledge of the execution defendant, 
and without notice to his ag^ent, or attorney to select an sppmiser, bot 
instead such appraiser is selected by fbe Sheriff, renders the appraise- 
ment ineffectiTP, and the sale following it Toid. 

The right of an execution defendant to select one appraiser is not confined 
to levies on personal property merely. 

8te, 447, of the Code, as well as Sec. 450, show the legi«latiTe purpose to be 
that both real, and personal property are to be appraised in like man- 
ner, and appraisers chosen in the same way. 

A statute is not always to be construed literally, nor ihould one of several 
sections be construed alone when such construction would work an 
injustice, or become an absurdity. 

The intent of a statute, as collected from the whole, and all its parts will 
prevail over the literal import of particular terms, and control its strict 
letter, where the latter would lead to possible irgustice, or contradiction. 

Test^ Bums if Wright.^ for appellant 

Perrin Sf Baker^ for appellee. 

Newcomb, J. — The suit at Special Term was brought by 
Mason, the appellee, to set aside a sale by the Sheriff, of 
certain real estate in the city of Indianapolis, belonging to 



IN GENERAL TERM, 1872. 115 

Btsdb *. Wtdkin*. 

plaintiff, which was sold on an execution in favor of Wad- 
kins, the appellant, and parchased by the latter. A demurrer 
to the complaint was overruled, and the defendant excepted. 
A general denial was then filed, the cause submitted to the 
Court, which found the facts specialty, with the conclusions 
of law arising thereon^ 

The special finding sets forth the facts substantially as 
stated in the complaint., as follows: Execution was issued to 
the Sheriff', on a judgment in the Marion Common Pleas, in 
favor of Wadkins, and against Mason. The Sheriff failing 
to find any personal property belonging to the defendant, 
levied the execution on his real estate described in the com* 
plaint, had the rental value for seven years, and the fee simple 
of each tract, appraised, and sold the fee simple, after the 
proper advertisement, to the execution plaintiff, at two*thirds 
of the appraised value thereof; that the a(>pra]sement was 
made wholly without the knowledge of the execution 
defendant, although be was a resident of the city of 
Indianapolis, where said property was situate, and lived on, 
and occupied one of the lots so sold; that no notice was 
given him, his agent, or attorney, to select an appraiser; that 
he had no actual knowledge of the levy upon, or sale of said 
real estate, until after the Sheriff's deed had been executed to 
the purchaser^ though the Sheriff had notified him that he 
held the execution, and that he had been directed to levy the 
same upon the real estate in question. 

The Court further found that the appraisers appraised the 
rents and profits of each of the two lots for seven years at 
410.00, and the fee simple of one lot at 975.00, and of the 
other at 850; that the actual value, as shown by the evidence^ 
of the rents and profits for one of the lots for seven years 
was 9420.00, and Ote fee simple 9333.33, and that the value 
of the rents and profits for seven years of the other lot was 
9700.00, and the fee simple 9666.66, and that the prior incum- 
brances on the whole did not exceed 940.00. 



116 SUPERIOR COURT REPORTa 

Etuii 9 Wkdkins. 

As a conclusion of law from the foregoing facts, tbe Coart 
found that tbe appraisement, sale, and conveyance of said 
real estate were illegal and void, and should in all things be 
set aside, and held for naught, and rendered judgment 
accordingly, having overruled a nnotion in arrest. * 

An exception was duly taken to the eonclusione of law 
found by the Court 

Tbe only question in the ease, as made by tbe pleadings, 
is, whether the failure of the Sheriff to notify Mason to select 
an appraiser, and selecting said appraiser himself, renders tbe 
sale void. The statutes governing tbe appraisement of 
property on execution, so far as it is important to notice 
them in this case, are as follows *r See 2 6. & IL, pp. 242 
and 248. 

^ Se€. ccgcxlv. No property shall be sold on any execu- 
tion, or order of sale issued out of any Court, for less than 
two-thirds the appraised value thereof^ exclusive of liens and 
incumbrances, except where otherwise provided by law." 

Sec. ccggxlvi. The Sheriff, immediately upon levying a» 
execution, shall proeeed to ascertain the cash value of such 
personal property," 

^Sbg. ceccxLvii. For that purpose two disinterested 
householders of the neighborhood where the levy is made 
shall be selected as appraisers, one of whom shall be selected 
by each of the parties, or their agent^ or in the absence of 
either party, or his agent, or upon the refusal of either party, 
after three days notice by the Sheriff to make the selection, 
the Sheriff shall proceed to select tbe appraisers.* They shall 
forthwith proceed to apprai8e the property according to its 
cash value at the time, deducting lieiis and incumbrances; 
and in case of their disagreement as to the value, they shall 
select a like disinterested appraiser, and with bis assistance 
shall coniplete the valuation, and the appraisement of any 
two of them shall be deemed the cash value." 



\ 



TN GENERAL TERM, 1872. 117 



ETftOBo Wad Idas. 



^ Sec. ccccl. The Sheriff srfiail ftirnish the appraisers a 
schedule of the property levied on, with the incambraiices 
made known to him, and they shall proceed to fix and set 
down opposite to ea>ch tracty lot^ or parcel of real estaUy and 
of the several articles of personal property, the cash valae, 
deducting liens, and incumbrances, whioh schedule they shall 
return to the Sheriff." 

The appeHee takes the position that Section 447, above 
quoted, is applicable only to the appraisement of personal 
property, and therefore it was not necessary for the Sheriff to 
notify the execution defendant to select an appraiser, and 
this argument is based on the use of the phrase, ''such 
personal property," in the preceding section. 

That sudi a construction is not in harmony with the inten- 
tion of the Liegislature is manifest from the other sections 
we have cited, and would either deprive dn execution defend- 
ant of the benefit of the appraisement laws so far as real 
estate is concerned, or prevent sales of real property on 
execution, in every case where the law does not provide for 
a sale without appraisement. Sections 447 and 450 plainly 
show the legislative purpose to be that both real and personal 
property are to be appraised in like manner, and that the 
appraisers are to be chosen in the same way in each case. 
Otherwise the provision of Section 450, requiring the 
appraisers '^ to fix and set down opposite to each traet, lot, or 
parcel of real estate^' the cash value, &c., would be mean- 
ingless, and inoperative. One of several sections of a statute 
will not be construed alone when such construction would 
lead to injustice or absurdity; but the intent of a statute 
as collected from the whole and all its parte, will prevall.over 
the literal import of particular terms, and control its strict 
letter, where the latter would lead to possible injustice and 
contradiction. City of JeffersonviUe v. Weems et al.^ 5 Ind., 
547 ; Allison v. Hubbeilf 17 Ind., 559 ; The State ex rel Ben- 
toM V. Tie Mayor, Sfc, of LajpoHe, 28 lb., 248 ; Miller v. The 



118 SUPERIOR COURT REPORTS. 



Eransv Wadkins. 



Board of Commissioners^ 4^., 29 Ib^ 75. Every part of a 
statute should receive effect if possible— J9ii/cAeii v. NiblOj 
4 Blackf., 148; Green v. Cheeky 5 Ind, 105; Stayton v. 
Bulings, 7 Ind., 144. 

And, in construing a statute it is proper to look to its 
effects. Statutes are not always to be construed literally. 
Donnell v. Tke Slate, 2 Ind., 65a 

In tbe light of these rules of construction^ and from the 
provisions of the succeeding sections of the statute govern- 
ing the appraisement, and sale of property ou execution, we 
cannot hold that the right of a defendant to select one 
appraiser is confined to levies on personal property alone^ but 
the construction must be as if the word ^personal" were 
omitted from Sec. 446, or the words, ''or rent" were inserted 
between that and the word " property." In this way, effect 
is given to every part of the statute, and the benefit intended 
to be secured to a defendant is accomplished.. 

The appraisement having been illegally made was ineffec- 
tive, and the sale following it was void. Davis v. Camjibelly 
12 Tnd., 193 ; Doe ex dem Holman v. ColUns, 1 lb., 24 ; Tyler 
v. WiUcinsony 27th, lb., 450 ; Oummings v. Foote, 13 lb., 144 ; 
Fletcher v. Holmes, 25 lb., 458. 

Although it is not specially set forth in the complaint as 
a ground for setting aside the Sheriff's sale, and deed, the 
record presents another fatal defect in the appraisement 

Sec. ccccLxiv of the Code of Practice, (2 G. & H., 249,) 
provides thaf^ rents and profits may be sold as other prop- 
erty, the appraisers setting down the value of each year 
separately." 

The appraisement in this case was of the rental value in 
gross for the term of seven years, and not the value of each 
year separately. Consequently it was not such appraise- 
ment as authorized an ofler of the rents and profits by the 
Sherifi, and precluded a legal scde of the fee simple. Tke 
Indiana Central R W. Co. v. Bradly Sf Pratt, 15 Ind., 2a 

The jud^neat at Special Term is aflirmed with costa. 



IN GENERAL TERM, 1872. 119 



Hilford •. WMley «< «L 



IN GENERAL TERM, 1872. 



Monroe M. Milford v. Grorob A. Wesley et alj Appel- 
lants. 

Appeal from Kswoomb, Jadfe. 

Innkeeper, KabilUy of^ for property stolen — Verdict, when 
Court will not disturb — Pleading, rule in. 

The ** rnlei " of % hotel r qairing ** monr j, Jewelrj, and other Talaables " to 
be depoeited in the ufe of the ofBce, do not applj to a watch which a 
gueet has on his person, and keeps for his personal nse, and which is 
essential to his personal comfort, and oooTenience. 

Where a gnett is told by the inn-keeper, or his servant, " not to lock the 
door, for other parties had to come into the room, to go to btd, and the 
door should be left unlocked for them," or '* that he could either lock 
the door, and get up, and let them in when thej come," 

Bdd: That a lack of ordinary care can not be imputed to a guest, aetiog in 
obedienof to such instruction — in leaving the door unlocked — and the 
inn-keeper will be responsible for property stolen (torn such guest. 

The Court will not disturb the verdict of the Jury, on a question of excessive 
damages, if sueh verdict is within the limits of the evidence. 

Specific matter not alleged in answer ean not be Introduced as evidence 
under the general denial. 

jRoy, VosSf Davis 4* Bolmanj for appellants. 

James Buchanan^ for appellee. 

Blair, J. — This is a suit by the plaintiff against the defend- 
ants, who are inn-keepers, to recover the valae of a gold 
watch, and chain, and certain articles, as a seal, &c., attached 
to the chain. The plaintiff alleges in his complaint that he 
was a guest at the hotel kept by the defendants, and by their 



120 SUPERIOR COURT REPORTS. 

Milford V. Wesley, etal. 

direction he occcpied a bed in room No. 84 in said hotel ; 
that there were other beds in the same room, occupied by other 
guests, who were strangers to the plaintiff, and by request 
of the defendants, or their servant, on letiring he left the 
door of his room unlocked, that the other guests might enter 
the room ; that he was informed by the servant of defendant 
that the other guests to occupy the room were honest, and 
on retiring he placed his watch, chain, &c., between the 
mattresses of the bed he occupied, from whence they were 
stolen while the plaintifi was asleep. 

The defendants filed a general denial to the complaint 

The cause was submitted to a jury, and a verdict returned 
for the plaintiff. The defendants filed a motion for a new 
trial, which was overruled by the Court, and a judgment 
rendered on the verdict for the plaintiff. 

The defendants appealed to General Term. 

At the trial of the cause it was shown that the plaintiff 
had before retiring deposited bis money with the clerk, to be 
put in the safe in the office, and during the day he had also 
deposited a small box containing some jewelry, all of which 
was delivered to the plaintifi next morning; and the defend- 
ants offered to introduce in evidence the heading on the page of 
the hotel register where the plaintiff's name was registered, 
which heading read as follows: ^ The proprietors will not 
be responsible for money, or valuable packages, unless depos- 
ited in the safe of the office," and also a certain regulation, 
or rule, printed upon a card, which was fastened upon the 
inside of the door of room No. 84, occupied by the plaintiff 
on the night when he was a guest at the hotel, as follows: 
" The proprietors will not be responsible for money, jewelry, 
or other valuables, unless deposited in the safe of the office." 

An objection was made by the plaintifi to the introduc- 
tion of this evidence under the issues joined, and it was 
excluded by the Court 

It is claimed by the defendants that these regulations^ or 



IN GENERAL TERM, 1872. 121 



Milford V. Weslej H al. 



rales, were a part of the conditions upon which the defend- 
ants received gaests into their hotel, and that they were 
assented to by the plaintiff on becoming a guest of the 
defendants', and that a failure to comply therewith on the 
part of the plaintiff, precludes him from recovering for articles 
lost by reason of such failure. 

If, as is assumed by the defendants, it was intended to be 
shown by the evidence offered, that the liability which the 
law imposes upon the inn-keeper for the loss of the property 
of his guest, was lessened, or limited by an implied contract, 
or by notice brought home to the guest, directing his property 
to be placed in the safe, the matter thus relied upon as a 
defense, to be available should have been set up in answer, 
and not being so pleaded, the ruling of the Court in exclu- 
ding the evidence was right. 

And even further than this, we do not think that the 
^ heading of the register,'' nor the rules posted upon the 
door of the room can be held to apply to a watch which a 
guest has about him for his personal use, and which is essen- 
tial to his personal convenience. Laid away 'Mn the safe of 
the office" it would be of no use to him. Its value a^ 
property might for the time being be secure, but its value as 
an article capable of contributing to the personal comfort of 
the guest would be taken from him. 

A guest on retiring to his room may well insist upon 
keeping his watch about him, as a personal right, that he 
may regulate his rising, or to inform him of the tipae for a 
departing train. 

The evidence shows that the watch which was lost, was one 
which the plaintiff carried for his personal use, and there is 
a well grounded distinction between such an article, and 
^ valuable packages," and the like, which are not immediately 
requisite to the personal comfort and convenience of a guest 
The latter class of articles may with reasonable propriety be 
required to be deposited in the safe in the office, but not the 



122 SUPERIOR COURT REPORTS. 

Milford p. Wetlej €t ol. 

former. Pope v. Hall, 14 La. An , 324; ProJUet v. Hall, 
lb., 524. 

The defendants excepted to the instructions given to the 
jury by the Court No special objections have, however, 
been pointed out, and we think the law as applied to the 
evidence was correctly stated in the instructions. 

The defendants asked certain instructions, which were 
refused by the Court, the first two of which were as follows: 

^' Firsty That if the jury find from the evidence that the 
loss of the watch, chain, and attachments thereto was in any 
sense attributable directly to the want of care, and prudence 
on the part of the plaintifi^ he can not maintain this action, 
and you should find for the defendant 

^ Secondy If the jury find from the evidence that the plain- 
tiff failed to take such care of the watch, chain, and attach- 
ments thereto as a person of ordinary prudence should take 
under all the circumstances which surrounded the transac- 
tton, the defendants are not responsible, &c." 

The first instruction asked states a correct proposition of 
law, for it is undoubtedly true that if the loss is ^ attributa* 
ble directly to the want of care, and prudence on the part of 
the plaintifi^ he can not recover," but, as we think, there was 
no evidence indicating, or tending to show a want of care 
on the part of the plaintiff, the instruction was properly 
refused. It is true that the door of his room was left 
unlocked, but the plaintiff says the servant of defendants 
who showed him to the room told him ^ not to lock the door, 
for other parties had to come into the room to go to bed, and 
the door should be unlocked for themf' and the clerk of 
the defendants who assigned the room to the plaintiff, says 
that he ^ told him some of the parties who were occupying 
the room were not yet in, and that he could dtber lock the 
door, and get up to let them in when they came, or if he did 
not wish to be disturbed he could leave it unlocked,'^ hence 
under the circumstances the evidence does not indicate any 



IN GENERAL TERM, 1872. 123 

Mi}for4 9, Wwlej tt A 

earelessness on the part of the plaintiff on account of the 
door being unlocked. 

The second instruction asked is liable to the same objec- 
tion, and in addition it seems to assume that a lack of 
ordinary care on the part of the plaintiff would relieve the 
defendants from any responsibility, however negligent they, 
or their servants might be. This principle is not applicable 
in a case by a guest against an inn-keeper for property stolen 
from the guest 

The third and fifth instructions asked by the defendants^ 
among other things, present the question of the release of 
the defendants from liability on account of the heading of 
the register, and the rules posted upon the door of the room, 
which has already been discussed, and as the evidence on 
that point was properly excluded, the Court was right in 
refusing the instructions. 

The only remaining question raised is that the damages 
assessed are excessive. There was some conflict in the 
evidence as to the value, but it was a question for the jury 
to determine from the evidence, and the amount found by 
the jury is within the limits made by the witnesses, and 
hence the Ck)urt can not find that the damages are excessive. 

The judgment rendered in Special Term is affirmed with 
costs. 

Note. — Inn-keepera are ckargMM» for the goods of the>r gvests lost, or 
stolen at tlieir inns; and to render tl^m lial>Ie. it is not neeessarj that the 
goods should hare been delirered into their special keeping, nor to prove 
negligence. ChtU v. WigffitiB, 14 Johns,, 175; 2 Kent, 761, 7(^ Bd, 

It is not necessary that the goods should have been placed in the special 
keeping of the inn keeper. If one is a gue t, and the ^oods are within the 
inn, the landlord is liable for them. McDonald v. MdgarUn, & Bark, 560 ; 
2 Kent, Vol 2, t$ar page, 594. 

Ion-keepers, as well as cossmoo carriers, are regarded as insurers of the 
goods of their guests while in their keeping, and are bound to make restitn-* 
tion for any injury, or loss not occasioned by the Act of God, the common 
enemy, or by the negli^nce, or fault of the guest 5 7*. R,, 273; 3 Dyer^ 
2fi6; 1 TatM, 34; 21 IFendL, 122, 282; 5 Blae^f,, 52a. Sm ako 10 Jud, 212l 



124 SUPERIOR COURT REPORTS. 

Storm V. Potter. 

It is not Deoetftry that the goods should have he«n io the specihl keeping 
of the iDn-keeper in order to make him liable ; if th^j be io the inn, that is 
•ofBolent to change him — Bmmei v. MeUor^b lerm Rep,, 273. The primm 
foeU presumption is, that the law was occasioned bj the loss, or nei^ligence 
of the inn-keeper, or his servants, but the presumption maj be rebnttcd. 
Daw9im T. Ckmmc^, 5 Adol f BUU, (n. s.) 164. ^ oIm 9 Pick,, 280; 
Mtrritt t. Oaghom, 23 Ft, 177; Openeem t. Wamer, 3 Hill, 160. 

Notice bj printed cards is insufficient, unless it be proved tbst the plain- 
iitr had seen such cards. Rowley t. Home, 3 Ring., 2 ; Oriffitka t. Lee, 1 
Osr j* P., 110 The frarrfm <(f prw^ is oo the inn-keeper, to show that the 
person who is his guest is fdllj informed of the terms, and effect of the 
notice. Andvnless it "can be brought home to such person directlj or 
oonstructitely, it is a mere nullity. Story on RaUmenU, See. 560 ; Anyoil 
on Oenieri, Seee, 133, 247. 

2 Oneml. Be,, Sea, 210, 218— where if noHee is proved, ** its effect msy be 
avoided on the part of the plaintiff, by showing the loss to be occasioned by 
the mal/emeanee, wutfeaea^ce, ernegUgenee'* of the carrier, or keeper. 

See further: 2 Oomph,, 415; 2 SUtrk, R,, 53; 5 Btag., 212. AUo BoUUiet 
w, NowUn, 19 Wend.r 234; Brooke v. Pickwick, 4 Ring,, 218; 31 Maine, 228; 
16 Penn, State, 67; 100 Man,, 425; 1 BiUen, 84; 24 Ind., 347. Good) 
belonging to a guest stolen at an inn, may btt said to be the property either 
of the tan-ke^pec, or guest; Rex, e. Todd, 1 Leaek, cc, 557. 



•♦• 



IN GENERAL TERM. 



Frederick C. Sturm, appellant, v. William J. Potter, 

Constable of Decatur County. 

Appeal firom Band, Judge. 

Warrant— /or arrest of fugitives — Habeas Corpus, 

A WarraoC for the arrest of a Aigitire may be served in any county In the 
State, by the Constable to whom the warrant was issued, in the county 
where the offense was committed: Prowded, the ceniflcate of the 
County Clerk is attached, showing that the Justice of the Peace issuing 
the warrant, is duly commissioned, and qualified ss such, end that his 
signature thereto is genuine. Sec, 8, Q, and IL 621, and %, GL and M. 
319, comirued together. 



IN GENERAL TERM, 1872. 125 

Starm v. Potter. 

Frederick C. Sturm filed his petition in this Court, alleg- 
ing that William J. Potter is unlawfully restraining him of 
his liberty^ and praying for a writ of Habeas Corpus. The 
writ was issued and returned, and Potter in his return says, 
that he holds said Sturm by virtue of a writ issued by a 
Justice of the Peace, of Decatur County, tg him, as Special 
Constable of said county, directing him to arrest said Sturm 
and bring him forthwith before said Justice, to answer to a 
charge of obtaining goods under false pretences, in Decatur 
County. The writ^ affidavit upon which it was issued, and 
the Clerk of Decatur County's certificate of the genuiness of 
the writ issued by the Justice, is made part of the return. 
Exceptions were filed to the return, which were overruled 
and excepted to, and a denial of the return to the writ of 
Habeas Corpus was filed — the cause heard at Special Term, 
and Sturm was remanded to the custody of Potter. From 
this judgment Sturm has appealed to Greneral Term. 

The only question raised is, as to the sufficiency of the 
return to the writ of Habeas Corpus. It is contended that a 
Constable of Decatur County cannot exectUe a writ in Marion 
county, issued to him by a Justice of the Peace for Decatur 
County, commanding him to arrest a person charged with a 
crime committed in Decatur County. 

Section 8, of an act prescribing the number, and defining 
the powers and duties of Constables, approved May 27, 1852, 
2 G. and H., 621, reads as follows: 

'^ In executing a warrant for the apprehension of any fugi- 
tive from justice, who has fled into another county, from any 
county in this State, a Constable may arrest such ofiender in 
any county where he may be found ; but if such offender 
shall require it, he shall not remove him from such county, 
without taking him before some officer authorized to issue 
and try writs of Habeas Corpus, and giving such ofl*euder 
time to make application for such writr" 



126 SUPERIOR COURT REPORT& 

Sturm •. Potter. 

This would seem to confer ample authority on a Consta* 
ble of one county) when he has a proper writ charging a 
criminal offense, committed in such County, to follow the 
alleged culprit into any other county in the State and arrest 
him, and take him before the justice who issued the writ, 
first giving him an opportunity to apply for a writ of Habeas 
Corpus, if he desires* so to do* 

The second section of the justice's act, as amended Decem* 
ber 2,. 1865, 3 G 4* JZ, 319, reads as follows: 

^Any justice shall, on complaint made on oath before him, 
charging any person with the commission of any crime or 
misdemeanor, issue his warrant for the arrest of such person, 
and cause him to be brought forthwith before him for trial, or 
examination, and such warrant may be served throughout 
the county, and when the defendant has escaped from the 
county in which the offense was committed, upon attaching 
a certificate of the Clerk of the county, setting forth that the 
justice issuing the warrant is duly commissioned and quali* 
fied as such, and that his signature is genuine, the same may 
be served by any constable or sheriff in any county in which 
the defendant mav be found*" 

It is urged that this section only authoriises a constable, or 
sheriff of the county to which the fugitive has fled, to make 
the arrest 

We cannot concur in this view. We think a proper con- 
struction of this section authorizes a constable, or sheriff, of 
the county in which the offense was committed, to arrest the 
fugitive, in any county where he may be found, by virtue of 
a warrant issued by a justice of the peace in the county 
where the offense is committed. 

The warrant in this case is issued to Potter as special 
constable of Decatur County. It certainly could not have 
been contemplated by the Legislature, that this warrant 
should be transferred to a constable of Marion county, or 
that it should be returned to the justice, and a new one be 



^ 



IN GENERAL TERM, 1872. 127 

- I -• 

Storm f . Potter. 

issued td Marion county — and if in the mean time the fugi* 
tive had slipped into an adjoining county, a new warrant 
should be obtained, directed to a constable of that county. 
This construction would give an adroit fugitive all the chan- 
ces of escape he would desire. 

We think that when he found that Sturm had fled from 
Decatur county, he had a right to get the Clerk's certificate 
attached to the warrant, and then pursue, and arrest the 
fugitive in any county in the State. 

Under this view the two sections work harmoniously 
together. 

We have been referred to '^ An Act concerning fugitives 
from justice," approved May 27^ 1852, 2 O. ^ H.y 434, bat 
we think it in no way conflicts with the duties we have 
referred to. It provides for proceedings in the county where 
a fugitive may be found, for his arrest and return to the 
county where the crime was committed. This is another 
means by which fugitives may be arrested and returned. 

In the cause at bar the parties have adopted another 
course, and one we think equally legal. 

The judgment remanding the criminal at Special Term, is 
affirmed. 



Superior Court Reports. 

IN GENERAL TERM, 1872. 



Horace F. Kenyon et al v. The City of Indianapolis, 

Appellant. 

Appeal from Band, Judge. 

Municipal Corporation — wlien liable for injuries caused by 

defects in highwai^ — 
Highway — defects in. 

All persons in using the streets and sidewalks haTe tbe right to assume that 
they are in a good, and safe condition, and to regulate their conduct 
upon that assumption. 

If a city permits the construction of a vault under a sidewalk, she must use 
due care, and diligence to see that the vault is properly constructed, 
and tbe opening Uiereto securely and safely covered, and if constructed 
in a sidewalk, over which the city has exclusive control^ the Court will 
infer, in the absence of any allegations to the contrary, that it was 
constructed under a license from the city authorities. 

Proof of the mere existence of a latent defect in a sidewalk, in a city, is 
not enough to charge the corporation with negligence ; the corporation 
must in some way be in fault in connection with the defect, and if the 
defect does not originate in the construction, express notice of the defect, 
or negligence of duty in not ascertaining and remedying it, must be 
shown, else the city will not be liable to repair. Hence it is not enough, , 
to entitle the plaintiff to recover, to prove that the covering was inse- 
curely fasten^ at the time of the accident, and that by reason thereof, 
and without fault on her part, she was injured. 

A liability only attaches to a municipal corporation where there has been a 
failure to remedy such def v*t8 as may be detected, and removed by the 



130 SUPERIOR COURT REPORTa 

Kenyon it al v. The City of ladUnapolia. 

ezereiie of ordioarj care, and diligence. Mere knowledge on the part 
of a few priTate dtiiens of a latent defect in a sidewalk, ia not snfficient 
to charge the city with notice. 
Although Bome of the ipecial tlndingt may he inconsistent with each other, 
the verdict will not he distarbed, if taken as a whole, they are not 
inconsistent with the general Terdict. 

J. & Harvey^ for appellant 
Barbour if Jacobs^ for appellee. 

Blair, J. — The cc uplaint in this casei after alleging that 
it is the duty of the city of Indianapolis to keep the streets 
and sidewalks in good, safe repair, charges that a certain 
opening in the sidewalk oti West New York street, in said 
city, in front of the property owned by the defendant, Afary 
Edgar, was constructed without using due care to make the 
same safe, and was insecurely covered, and the cover ^ having 
been insecurely fastened, and the support beneath the same 
having worn away, and fallen out" As the plaintiff^ Emma 
M. Kenyon, the wife of Horace F. Kenyon, was passing 
along the sidewalk, and having no knowledge of the unsafe 
condition of the cover, she stepped on the same when it gave 
way, and turned beneath her, causing her to fall through the 
opening into the vault beneath, whereby she was injured, etc 

A demurrer to the complaint on the part of the city was 
overruled. We think the complaint was sufficient 

An answer was filed by Mary Edgar, and the plaintiffii 
then dismissed the cause as to her. 

The city then filed her answer, in three paragraphs, as fol- 
lows: 

First A general denial. 

Second. That the opening mentioned in the complaint 
was constructed by Mary Edgar, or by the persons under 
whom she holds title to the premises described in the com- 
plaint, for their sole use and benefit; that it was not 
constructed by the city in the improvement of the sidewalk, 




IN GENERAL TERM, 1872. 131 

Kenyon etalv. The City of Indianapolis. 

■ — ... 

t>r otherwise, for the use of the city> and that the defendant, 
her officers, or agents, never at any time had notice that the 
vaait, and covering were defectively constructed, or were out 
of repair. 

Thir€L That neither the defendant, nor any of her officers, 
or agents, had any notice, or knowledge of the defective 
construction of the vault, and covering, by Mrs. Edgar, 
constructed for her own use, etc. 

Demurrers were sustained to the second and third para* 
graphs of answer* 

The second paragraph of answer proceeds upon the 
assumption, and we think correctly, that the complaint, 
although containing but one paragraph, seeks a recovery on 
two grounds ;^^^, that the injury complained of resulted 
firom a defect in the original construction of the vault, an^ 
covering; secondy from the same being suffered to be, and 
remain out of repair. 

The answer attempts to meet the first charge by saying 
that the vault was made by Mary Edgar, or those under 
whom she holds title to the property, for their sole use, and 
benefit, and not for the use of the city, or by the city, in the 
improvement of the sidewalk, and that the city had no notice 
that there was any defect in the construction. 

If the vault, and covering was constructed in the sidewalk, 
over which the defendant had exclusive control, we may, in 
the absence of any allegation that objections were made, 
infer that it was done under an ihnplied license from the city 
authorities. Robbins v. Chicago CUy^ 4 Wal. 657. 

The question raised by the demurrer may therefore be 
stated as follows: If the city permits the owner of property 
abutting a public street to construct a vault under the side- 
walk, with an opening in the walk, for the sole use of the 
owner of the property, is the city bound to see that it is 
constructed with due care for the safety of the public having 
a right to pass, and repass over the walk T 



130 StrPEBIOB COUET BEPOETS. 

KtB7«B Hal*. Tk» Citj of lodisiupolia. 

•hmIm of ofdiaaiT eu% ud diUgaBca. Men know1«dg« on the part 
of a h« printe dlia*M of m Ut«t debet ia B lidawmlk, u not inffieiant 
to cltMKB tha dty witb Mttoa. 
Ahhaogk lona of tha ipacial Indingi luj be InconiiataDt with aach otfaer, 
tka Ttrdiet vill Bot bo diKsrfaad, if tAkea m a whole, thay are sot 
tiwnolafl with tbt gOMnl Tordiet. 

/ & Barve$t tor appeUant 

Barbom" 4* Joeobs, for appellee. 

Blaik, J.— -The cc ii|daint id this case, after alleging that 
it is the doty of the city of Indianapolis to keep the streets 
and sidewalks in good, safe repair, chaises that a certain 
opening in the sidewalk Ob West New York street, in said 
dty, in front of the fvoperty owned by the defendant, Mary 
Sdgar, was constrocted without using dne care to make the 
same safe, and was insecurely covered, and the cover " having 
been insecnrely &steaed, and the support beneath the same 
having worn away, and fallen oat" As the plaintiff, Emma 
M. KeoyoD, the wife of Horace P. Kenyon, was passing 
along the sidewalk, aad having no knowledge of the unsafe 
condition of the cover, she stepped on the same when it gave 
way, and tnraed beneath her, cansing her to fall throagh the 
opening into the vanlt beneath, whereby she was injured, etc. 

A demotier to the <»mplaint on the part of the city was 
overruled. We think the complaint was sufficient 

An answer was filed by Mary Edgar, and the plaintifb 
then dismissed the cause as to her. 

The city then filed her answer, in three paragraphs, as fol- 
lows: 

f^st. A general dental 

Second. That the opening mentioned in the complaint 
was constructed by Mary Eklgar, or by the persona under 
whom she holds title to the premises described in the com— 
{daint, for their sole use and benefit; that it was d(»^ 
eonstracted by the <uty in the impiovement of the sidewalks 



IN GENERAL TERM, 1872. 131 

Kenyon €tal9. The City of IndUnapolii. 

t>r otherwise^ for the use of the cityi aod that the defendant, 
faer officers, or agents, never at any time had notice that the 
▼aalt, and covering were defectively constrncted, or were oat 
of repair. 

Third. That neither the defendant, nor any of her officers, 
or agents, had any notice, or knowledge of the defective 
constmction of the vault, and covering, by Mrs. Edgar, 
constructed for her own use, etc» 

Demurrers were sustained to the second and third para- 
graphs of answer. 

The second paragraph of answer proceeds upon the 
assumption, and we think correctly, that the complaint, 
although containing but one paragraph, seeks a recovery on 
two grounds ;^^t, that the injury complained of resulted 
6om a defect in the original construction of the vault, and 
covering; secandj from the same being suffered to be, and 
remain out of repair. 

The answer attempts to meet the first charge by saying 
that the vault was made by Mary Edgar, or those under 
whom she holds title to the property, for their sole use, and 
benefit, and not for the use of the city, or by the city, in the 
improvement of the sidewalk, and that the city had no notice 
that there was any defect in the construction. 

If the vault, and covering was constructed in the sidewalk, 
over which the defendant had exclusive control, we may, in 
the absence of any allegation that objections were made, 
infer that it was done under an ihiplied license from the city 
authorities. Robbins v. Chicago CUy^ 4 Wal. 657. 

The question raised by the demurrer may therefore be 
stated as follows: K the city permits the owner of property 
abutting a public street to construct a vault under the side- 
walk, with an opening in the walk, for the sole use of the 
owner of the property, is the city bound to see that it is 
constructed with due care for the safety of the public having 
a right to pass, and repass over the walk 7 



132 SUPERIOR COURT REPORTS. 

Kenyon it al «. The City yf IndianapolU. 

This is a question of great importance, both to the city, 
and the publia 

It is urged on behalf of the defendant, that the case of 
Stackhouse v. The City of Lafayette^ 26 Ind., 17, settles the 
rule that the city is not bound in such cases to look after the 
the construction of the vault, and exercise reasonable care in 
seeing that it is made safe for persons passing over the side- 
walks, and that the person making the vault is alone liable 
for an injury resulting from a defect in the construction of 
the same. 

In that case the city of Lafayette had granted the right of 
way along a certain street to a railway company. The com- 
pany, in constructing her road, found it necessary, in crossing 
a small stream of water, to make a bridge, or culvert, as a 
part of the track, or road bed, and the complaint was, that 
the culvert was ^insufficient in capacity to carry off the water 
in \\s natural course and flow in said stream, and obstructs 
the same," and causes the water to flow back, and submerge 
the lot of the plaintiff*, injuring his dwelling house, stable, etc. 

The Court held that the city was not liable. In con- 
sidering the case, the Court cited, and commented upon a 
number of authorities, showing a distinction between minis- 
terial and other forms of a municipal corporation, and the 
duty of exercising care in the construction of improvements 
made by cities, and of keeping the same in repair; and a 
portion of the language used by the learned judge would 
seem to sustain the position that a city is not liable for an 
injury resulting from a defect in the construction of a culvert, 
or vault made by another corporation, as individuals, for 
their sole use and benefit The injury, however, complained 
of in that case did not result from a defect in the surface of 
the street, or sidewalk, but on the contrary, the culvert was, 
for all that appears, constructed with due regard for the safety 
of all persons passing the street, and the injury was to 
property situated on an adjoining lot, caused by an overflow 



IN GENERAL TERM, 1872. 133 

Kenjon et al «. The City of Indianapolis. 

of water, and was entirely disconnected from the use of the 
street as a public thoroughfare. 

The attention of the Court does not seem to have been 
called to a large cJass of well considered cases, similar to the 
one at bar, and while we regard the decision as correct upon 
the points involved in the case, we believe there may be a 
welUgronnded distinction drawn between the questions, and 
facts there involved, and those in the case we are considering. 
The streets and sidewalks in a city are for the use of the 
public to walk, or drive upon at all hours, whether day or 
night, and all persons using them have a right to regulate 
their conduct upon the assumption that they are in a safe 
condition. Davenport v. Ruckman and the Mayor^ etCj of 
the OUy of New York, 37 N. Y., 668. 

Persons passing upon sidewalks ought not to be in con- 
stant dread of stepping into unseen vaults, and pitfalls, to 
the great danger of life and limb. The authorities of a city^ 
being clothed with plenary power over streets and sidewalks, 
can compel persons who construct vaults for their own use 
to make and keep them secure, and if they are permitted to 
be constructed, a reasonable regard for the safety of the 
public would require them to exercise their power, and see 
that they are made safe* Where great danger may result 
from the failure to exercise a power given for the benefit and 
protection of the public, as in this case, to secure safe streets 
and sidewalks, greater care and diligence in the use of the 
power will be required ; and in such case the exercise of the 
power becomes a duty. The City of Logansport v. Wright, 
25 Ind., 513 ; The City of New York v. Furze, 3 Hill, 612. 

An injury resulting to a person passing upon a street, or 
sidewalk can be readily traced to its legitimate cau:^e, if it 
results from a defect in the surface, and differs from a conse- 
quential injury to property not on, or connected with the 
street, as in the Stackhouse case. The distinction we have 
attempted seems to have been in the mind of the Court when 



134 SUPERIOR COURT REPORTS. 

Kenyon Hal 9, the Oitj of InAianapoUt. 

considering that case, as cleariy indicated by tbe foQowing 
language used in tbe opinion.: ^ Tbe complaint is not tbat 
tbe free ase of tbe street was in any way obstracted, nor tbat 
tbe injury occurred in passing over» or otberwise using tbe 
street Indeed, it is difficult to see tbat tbe existence of tbe 
street bad any relation to tbe injury^ as, in its absence, tbe 
culvert in tbe same place, if not of sufficient siie to give free 
vent to tbe water flowing in tbe stream, would bave produced 
tbe same injury." 

Tbis language conveys tbe impression tbat if tbe injury 
bad resulted from a defect in tbe surface of tbe street, dan- 
gerous to persons passing over it, tbe ruling migbt bave been 
otberwise; and tbe case can not tb^refore be regarded as 
settling tbe rule as claimed by tbe counsel for tbe defendant 
This conclusion is confirmed by tbe many authorities, which 
hold tbat if a city permits an opening to be made in a side- 
walk, she must see that it is so constructed as to secure the 
public from danger. 

The English cases cited in Staekhouse y. T%e OUy of 
Lafayette^ were all cases where the local authorities were 
indicted for not keeping in repair ; and under the statute of 
22d Henry VIII, which Lord Coke says, ^ was in affirmance 
of the common law," it was held that the indictments could 
not be sustained if it was proved that some other persons, 
lands, or body politic was bound to make such repairs. So, 
also, was the case there recited, of The State v. The BAabit'- 
ants of Orahamy 217 Maine, 451. 

The case of Chicago City v. Bobbins^ in the Supreme 
Court of tbe United States, 2 Black., 418, was an action on 
the case by the city of Chicago against Bobbins, ibe com- 
plaint alleging that Bobbins was the owner of a lot on a 
public street, and wrongfully made an excavation in the 
sidewalk adjoining, and sufiered tbe same to remain 
unguarded ; and that one Woodbury fell into it, and was 
injured} and for which injury he bad recovered a judgment 



IN GENERAL TERM, 1872. 135 

Kenyon $t <U «. The City of Indianapolis. 

against the city of Chicago, which she paid, and for which 
she now sued to recover of Robbins the amount paid Wood- 
bury. The Court in deciding the case used the following 
language : '* It is well settled that a municipal corporation 
having the exclusive care, and control of street::i,is obliged to 
see that they are kept safe for the passage of persons and 
property, and to abate all nuisances that might prove dan- 
gerous ; and if this plain duty is neglected, and any one is 
injured, it is liable for the damages sustained. The corpora- 
tion has, however, a remedy over against the party that is in 
fault, and has so used the streets as to produce the injury, 
unless it was also a wrong-doer." The case had been tried 
by a jury, and a verdict rendered for the defendant Robbins. 
The judgment was reversed by the Supreme Court, and on 
another trial the city recovered against Robbins, and he 
again brought the case before the Court, on appeal, where 
the questions were again considered, and the former ruling 
adhered to. In this case the defect was apparent to the 
passer by, and the Court says the excavation made by Rob- 
bins was a ^ private work, exclusively for his own conve- 
nience." Robbins v. Chicago City^ 4 Wal., 657. 

The case of Davenport v. Buckman and the Mayor ^ etc^ of 
the City of New York^ before cited, was an act for injuries 
sustained by the plaintiff falling into an excavation extend- 
ing from the front wall of a building six feet on the side- 
walk, with steps leading to a cellar way in the wall of the 
building, which Ruckman was to put in repair. The exca- 
vation was not covered, or railed in, and had been in that 
condition for some time. The defect was apparent to the 
observation of any one, and it was held that the corporation 
having neglected to keep the walks in a safe condition, she 
was liable to the plaintiff, as was also the defendant Ruckman, 
and there was no objection to their being joined in one suit. 

Huston and unfe^ v. the Mayor^ etCj of New Yorkj is a 
similar case, in which the defendant was also held liable. 



136 SUPERIOB COURT REPORTS. 

Ken jon $t ai «. The City of lodUnapoUi. 

The case of Wendell v. the MayoTy etCj of Troy^ 39 Barb., 
329, is also directly in point, and in which it is held that if 
such work is for any reason tolerated by the public authorities, 
it is their duty to exercise a supervision over its construction, 
and condition, and it is negligence, and a breach of duty to 
omit such supervision. 

The case of Bumham v. The City of Boston^ 10 Allen, 
290, was to recover for an injury sustained by driving a 
carriage into an excavation in the street, made by a railroad 
company for its track. The excavation was protected by a 
fence from the side approached by the street, but was unpro- 
tected on the side next to a vacant lot, across which the 
plaintiff drove in the night, and fell into the excavation. It 
was held that in the exercise of due and proper care the city 
should have provided a barrier, and having neglected so to 
do, should be liable. 

The case of Bacon v. The City of Boston, 3 Gushing, 174, 
is to the same effect The injury resulted from stepping into 
a cellar window constructed by the owner of the building, 
and which projected but a short distance into the walk. It 
was urged that the city was not liable, but the Court held 
otherwise, and that the liability was not discharged because 
the owner of the building was permitted to use part of the 
walk for a private purpose. The following cases assert the 
same rule: Willard v. Newberry^ 22 Vt, 458; Baity v. 
Dizbury, 24 Vt, 155. See also Shearman and Redfield on 
Negligence, Sections 360, 400 and 407, and authorities there 
cited. 

In view of these authorities, which are believed to be 
founded in good reasons, and calculated to protect the rights 
of the public, it was the duty of the city to use due, and 
proper care to see that the vault and covering was safely 
constructed; and she can not be released from this duty by 
saying, as in the second and third paragraphs of her answer, 
that she never had notice that the vault, and covering were 



IN GENERAL TERM, 1872. 137 

Kenyon et al 9. The City of Indianapolis. 

defectively constructed. It was her duty to supervise the 
construction, and use due diligence, and care to see that it 
was made safe. The ruling of the Court in sustaining the 
demurrer to these paragraphs was therefore right. 

The cause was tried by a jury, and a verdict rendered for 
the plaintiff 

Exceptions were taken by the defendant to instructions 
numbered tufo^ three^ and four^ given by the Court to the 
jury, at the request of the plaintiffs. These instructions 
were as follows : 

^ Second. The defendant, the city of Indianapolis, is by 
law vested with the exclusive control of the streets and side- 
walks within the city limits, and is bound to keep the same 
in a safe, and passable condition for foot passengers, and if it 
fails to do so, and a person using ordinary care to avoid 
injury is injured, the city is liable in damages. 

^ Third. The city has not performed her whole duty when 
she has required vaults, or openings in the sidewalks to be 
constructed ssifely in the first place, but she is bound to 
maintain, and keep them in a safe condition at all times. 

" Fourth. The jury may presume that the city has notice 
of any defect in a sidewalk when the same has been left in 
an unsafe, or dangerous condition for a considerable time 
without being repaired." 

Negligence on the part of the city is the gist of the action, 
and must be affirmatively shown to entitle the plaintiff to 
recover. The mere existence of a latent defect is not enough 
to charge the corporation with negligence. The corporation 
roust in some way be at fault in connection with the defect 
On the presumption that the city permitted the construction 
of the vault, we have already stated the rule to be that it 
was her duty to supervise its construction, and to use due 
care to see that it was made safe in the first instance. If 
there was any evidence in the cause tending to show a defect 
ia the original construction of the vault, so far as the instruc* 



Superior Court Reports. 

IN GENERAL TERM, 1872. 



Horace F. Kenyon et al v. The City of Indianapolis, 

Appellant. 

Appeal from RahD| Judge. 

Municipal Corporation — when liable for injuries caused by 

defects in highway — 
Highway — defects in. 

All persons in using the streets and sidewalks have the right to assume that 
thej are in a good, and safe condition, and to regulate their conduct 
upon that assumption. 

If a city permits the construction of a vault under a sidewalk, she must use 
due care, and diligence to see that the vault is properly constructed, 
and the opening thereto securely and safely covered, and if constructed 
in a sidewalk, over which the city has exclusive controlf the Court will 
infer, in the absence of any allegations to the contrary, that it was 
constructed under a license from the city authorities. 

Proof of the mere existence of a latent defect in a sidewalk, in a city, it 
not enough to charge the corporation with negligence ; the corporation 
must in some way be in fault in connection with the defect, and if the 
defect does not originate in the construction, express notice of the defect, 
or negligence of duty in not ascertaining and remedying it, must be 
shown, else the city will not be liable to repair. Hence it is not enough, , 
to entitle the plaintiff to recover, to prove that the covering was inse- 
curely fastened at the time of the accident, and that by reason thereof, 
and without fault on her part, she was injured. 

A liability only attaches to a municipal corporation where there has been a 
failure to remedy such def -^ts as may be detected, and removed by the 



130 SUPERIOK COUKT REPORTS. 

Kenyon eialv. The Gitj of IndianapoliB. 

ezereiae of ordinary care, and diligence. Here knowledge on the part 
of a few private dtisens of a latent defect in a sidewalk, is not suffieient 
to charge the oitj with notice. 
Althongb some of the special findings may be Inconsistent with each other, 
the Terdict will not be disturbed, if taken as a whole, they are not 
inconsistent with the general rerdiet. 

J. & Harvey^ for appellant. 
Barbour Sf Jacobs^ for appellee. 

Blair, J. — The cc nplaint in this case, after alleging that 
it is the duty of the city of Indianapolis to keep the streets 
and sidewalks in good, safe repair, charges that a certain 
opening in the sidewalk oti West New York street, in said 
city, in front of the property owned by the defendant, Mary 
Edgar, was constructed without using due care to make the 
same safe, and was insecurely covered, and the cover ^ having 
been insecurely fastened, and the support beneath the same 
having worn away, and fallen out." As the plaintiff^ Emma 
M. Kenyon, the wife of Horace F. Kenyon, was passing 
along the sidewalk, and having no knowledge of the unsafe 
condition of the cover, she stepped on the same when it gave 
way, and turned beneath her, causing her to fall through the 
opening into the vault beneath, whereby she was injured, etc. 

A demurrer to the complaint on the part of the city was 
overruled. We think the complaint was sufficient. 

An answer was filed by Mary Edgar, and the plaintiffs 
then dismissed the cause as to her. 

The city then filed her answer, in three paragraphs, as fol- 
lows: 

First A general denial. 

Second, That the opening mentioned in the complaint 
was constructed by Mary Edgar, or by the persons under 
whom she holds title to the premises described in the com- 
plaint, for their sole use and benefit; that it was not 
constructed by the city in the improvement of the sidewalk, 



IN GENERAL TERM, 1872. 131 

Kenjon etalv. The City of Indianapolis. 

— — - '• ---- 

t>r otherwise) for the use of the cityi aod that the defendant, 
her officers, or agents, never at any time had notice that the 
vaalt, and covering were defectively constructed, or were out 
of repair. 

ThirtL That neither the defendant, nor any of her officers, 
or agents, had any notice, or knowledge of the defective 
construction of the vault, and covering, by Mrs. Edgar, 
constructed for her own use, etc» 

Demurrers were sustained to the second and third para- 
graphs of answer. 

The second paragraph of answer proceeds upon the 
assumption, and we think correctly, that the complaint, 
although containing but one paragraph, seeks a recovery on 
two grounds ;^^t, that the injury complained of resulted 
6om a defect in the original construction of the vault, an4 
covering; second, from the same being suffered to be, and 
remain out of repair. 

The answer attempts to meet the first charge by saying 
that the vault was made by Mary Edgar, or those under 
whom she holds title to the property, for their sole use, and 
benefit, and not for the use of the city, or by the city, in the 
improvement of the sidewalk, and that the city had no notice 
that there was any defect in the construction. 

If the vault, and covering was constructed in the sidewalk, 
over which the defendant had exclusive control, we may, in 
the absence of any allegation that objections were made, 
infer that it was done under an ihiplied license from the city 
authorities. Robbint v. Chicago CUy^ 4 VVal. 657. 

The question raised by the demurrer may therefore be 
stated as follows: K the city permits the owner of property 
abutting a public street to construct a vault under the side- 
walk, with an opening in the walk, for the sole use of the 
owner of the property, is the city bound to see that it is 
constructed with due care for the safety of the public having 
a right to pass, and repass over the walk 7 



142 . SUPERIOR COURT REPORTS. 



KaBjon etal9. Tk« Oitj of Indianapolii. 



NoTS.'— 'He who ditturbt the sttrfaoe of the highway, and makes openings 
In it, is an insurer of all persons who pass OTor the opening, howerer ears* 
folly protected 6 Dm^r, 495; 18 N. T. M,, 78, 86. 

He is responsible for all iojuries resulting from its want of entire safety, 
for all the purposes for which the public hare a right to use such sidewalk. 

Nor is he protected by showing that the corering had answerad the pur* 
pose fcr which it was intended for a year after the completion of the work, 
sknd that he had no knowledge that the coTeriog was insufficient &mm. 

The question of negligence does not arise. Same, 

A municipal corporation, possesslog the legal power, and fbmished with 
the means to ooostruct, and keep in repair highways, and streets within their 
Jurisdiction, are liable to CTery one who may be injured by their neglect to 
repair defects therein after notice. 10 B^iw rih, 20, and eatm tUtd tkertin: 
3 Black,, 590. 8tt al99 I Blmck^ 39, 61, 62, 64; 6 if. F., 360; 17 ife., 104; 
37 A>., 668. 

In an action against a dty municipal corporation for damages, sustained 
by reaeon of a grate OTor an opening in a sidewalk being in a defectire or 
unsafe condition, it is not enough to entitle the plaintiff to recover to prove 
that the covering was insecurely fastened at the time of the accident, and 
that by reason thereof and without &ult on his part, he was injured. 
Notice to the defendant of the defect, or negligence of duty, in not ascer* 
iaining and remedying it must be shown. 6 Duar^ 674. Stt also 3 HiU^ 
612 ; 2 Bam, f AM,, 179; WiUan ▼. ths Maytr, ttt^ 1 Demo, 596. 

Where the streets and avenuee of a city are negligently suffered to become 
and remain oat of repair, the corporation is limble for injuries sustained by 
persons through such negligence. 9 K. F., 162, andeaef ihtrtm eiied:^ 

Negligence must be affirmatively shown, and the mere existence in a 
highway of an obstruction, or other defect, is not enough to establish negli« 
gence in the corporation — Shearman f RedfieU^ on Negligence, 81, 147. If 
the corporation has a knowledge of a defect, and permits it to remain, it is 
then liable for the consequences of their negligence. 48 Penn,, 320; 36 
Barb., 226. See aleo 39 Barb., 829. 

If the defect in a lawful structure is laleniy either express notice of it must 
be brought home to the corporation, or the defect must be so notorious as to 
be evident to all who have any occasion to pass the place, and observe the 
premises — Shearman f Redfield, fm Negligence, Sec, 148, and amthoriUei 
cited — in which case the corporation is charged with constructive notice, 
being in fault for not knowing the fact. See aleo 37 N, T,, 668. 

" A municipal corporation, which has been compelled to pay damages to 
one injured by falling into an unguarded area made by the defendant, has a 
remedy against the latter for re-payment" — 23 Pick,, 24 ; 4 CSuk,, 275 ; 9 
Allen, 17. If, however, the dtunages resulted from an act for which th^ 



IN GENERAL TERM, 1872. 143 

Keoyon tt al v. The Gity of Indianapolis. 

wer« liable in law, tliej can have no recourse oTor against the actual wrong 
doer. 36 Penn. A., 284. 

Where a datj, or obligation if once fixed upon a partj, a corresponding 
liability is involyed to pay damages resulting from a neglect of such duty. 
13 Iowa, 181. 

** It is not enough to show that the defendent h%s been guilty of negligence, 
without showing in what rospect he was negligent, and how he became 
boand to use care to prerent injury to others." Law R*p.f 2 Com. FUtu 
Ouea^ 371, 374. . " Negligence alone will not do, unless some breach of duty 
Is shown." Lmt Rep^ 3 C. P., 495, 498. 8t€ alio 10 Meeson i WeUiby'B 
Rep^ 108; 18 Chmmon Bmek Rep,, (k. B.)t 213. 

If ** without fault on the part of the owner, the coTer, fence, or gpiard is 
remored or placed in a dangerous position, the owner is not liable until he 
Imw had actual, or constructive notice of the fact, and has h%d reasonable 
opportunity to put it right'' Shearman j* Re^f^ w% Ktg^ See, 360 ; 3 Carring' 
Urn f Paipu?% Rep., 362. 

In an action against the owner of a coal vault for injuries received by a per- 
son falling through an insecure gruting leading to such vault, the Court 
charged — 

** Pint, Tliat the law imposed upon the owner of property in a city, who 
used any part of the street for his private purpose, the duty of employing 
all necessary, and proper means for the prevention of damages and injury 
that might arise from the use of such pnbltc street by him, and he is respon« 
sible for all iigury resulting from the street being made thereby less safe for 
its proper uses, when there is no negligence on the part of the party injured. 

'* Second, If the grating was insecure at the time of the happening of the 
accident, and that was occasioned by the negligence of the clefendant, he is 
liable; for being the owner of the property, he was bound to see that the 

grating was kept securely. 

• •#•••• 

** Fourth, If the defendant did not resort to all necessary, and proper 
means to render the grating secure, and its insecurity had existed and con- 
tinued for a considerable time previous to the action, he is liable. 

** Sixth, The defendant would not be liable, if the grating had been 
secured by him previously, and the security had been removed by the tenant, 
or any one else." 

This charge was sustained. See 26 Bow. Pr., 105. 

** Though tne corporation may impose upon the owners of lots fronting 
upon the streets, or avenues the burden of paving end keeping the side- 
walks in repair, they do not thereby relieve themselves of the duty imposed 
vpon them by charter, and by statute, of altering, amending, and kef>pingin 
repair the streets and highways within the city." Wallaee v. Mayor, etc., of 
Jf. Y,, 2 Hdl^ 440. See alio 3 Cuah., 174. 



144 SUPERIOR COURT REPORTS. 

Kenyon et al 9. The City of Indianapolis. 

In Ball y. Manehe^tetf 40 N, H.^ 410, it was held that the citj was properly 
liable for an injury sastained from a defect in a sidewalk, proTided the 
defect was one of which the city oonld reasonably hare had knowledge, and 
the plaintiff, on her part, was in the exercise of due prudence and care. 

In Raymond ▼. Lowell^ 6 Cuth^ 524, it was held that the projection of the 
moTable grating of a culvert from one to two inches above the lerel of the 
edge of the sidewalk, against which it rested, was not a defect showing such 
a want of ordinary care on the part of the city, as would make it responsi- 
ble for an injury occasioned by stumbling over the grating. 

The principles of this last decision are extended in the case of Hizon v. 
Ltnoelly 13 Oray^ 59, in which the Court held, that "in most cases the town 
has discharged its duty when it has made the surface of the ground over 
which the traveler passes, sufficiently smooth, level, and guarded by railings, 
to enable him to travel with safety, and convenience by the exercise of 
ordinary care on his part There may be many causes of injury, to which 
be might be exposed in traveling upon such a way, which would not consti- 
tute any defect, or want of repair in the way itself The town, if it has 
done its duty in making the way safe, and convenient in all the proper 
attributes of a way, is not obliged to insure the safety of those who use it*' 

In all cases, " before a municipal corporation can be made liable for injury 
caused by a defect in a highway, not arising fVom its construction, or by an 
obstruction placed therein by a wrong doer, either exprett notice qf the exisi' 
ence of the nuieanee muat be brought home to tt, or the dtfeet nnut be so notO" 
rioue at to be obtervable by all^ in which case the corporation is charged with 
constructive notice, being in fault for not knowing the fact*' Shear, ^ 
Bed/, on Neg^ See, 401, See alto 4 Wallace, 189; 9 If. JT., 456; 1 Dieney, 
532; 15 Micli, 307; S3 Ala,, (v. s.), 116: 41 If, 2/1, 135; Verm,, 438; 1 
i/ass., 153 ; 20 Omn., 118; 6 Am, Law Reg. tit " Highway,'' amd **ifimici- 
pal Corporation'' See Dillon on Munieipal Oorporationa, — [Rxpobtbb, 



IN GENERAL TERM, 1872. 145 



Fitnnfto «. lUtcliff << at 



IN GENERAL TERM, 1872. 



Francis L. Farman, Appellant, v. Charles L. Ratcliff 

et oL 

Appeal from Blair, Judge. 

A mecKanic maj waive his lien bj delivering the goods before paymenti or 
accepting security for their price. His refusal to deliver on demand in 
the latter case, will not work a conversion of the goods, if such refu- 
sal was, by reason of his ignorance as to whether or not the debt was 
secured, nor can the person in such case, making the demand, recover 
the price of the goods because of such refusal. 

On a demand for goods, the payment of which has been secured at a distant 
day, the manufacturer, when he is not in a eondition to know, will be 
entitled to a reasonable time to ascertain the character of such security, 
before delivering the goods. 

X S, Harvey^ for appellant 

Beck Sf Cale^ for appellees. 

Rand, J. — This was a suit for the recovery of the valae of 
certain articles manufactured by defendants for plaintiff, at 
bin request. 

The cause was tried at Special Term by the Court, and 
finding and judgment for defendants. 

The facts are as follows: The plaintiff, who resides in 
Indianapolis, went to Cincinnati, and employed the defend- 
ants, who were mechanics, and machinists at that place, to 
manufacture certain articles which plaintiff wished to use in 
his business. The defendants agreed to manufacture the 
articles, and plaintiff agreed to pay for the same oA delivery. 

The articles were manufactured, and the plaintiff was notified 
2 



146 SUPERIOR COURT REPORTa 

Farman v. Batcliff 9t A 

that they were ready for delivery. Plaintiff failed, for some 
reason not disclosed in the record, to pay for them, and 
defendants saed him in Cincinnati, and recovered judgment 
for their price. Afterward defendants sued plaintiff here on 
the transcript of the judgment obtained in Cincinnati, and 
obtained a judgment here which the plaintiff replevied, but 
did not pay, and went to Cincinnati, and demanded posses* 
sion of the manufactured articles. The plaintiff says : ^^ I 
asked him (Ratcliff) if the things were ready, saying I had 
come for them. He then asked me if I had given security 
for their claim. I told him that the matter was in the 
hands of his lawyers. He then said I could not have them 
until he saw Mac I then again demanded the goods in 
their office. He made no answer. He then walked out on 
the sidewalk. I followed him, and after reaching the side* 
walk, I again demanded of him to deliver to me the articles. 
He made no answer, but without making any remark, 
walked down the street, and I did not see him any more.** 

The defendant, Ratcliff, testifies as follows : ^ He called 
at my shop, and he asked me could he have those machines, 
and I told him he could have the machines, but I would have 
to see my attorney first, but not before I saw my attorney. 
There were two men in his company on that occasion, whose 
names I do not know, and there was no person else present. 
He brought no vehicle to take the goods away. He said 
when he came he wanted to get those things, and I told him 
he could not have them until I saw my lawyer. I went to 
see Mr. Kline to stay at my shop while I was absent; and I 
could not find Kline, and I returned to the shop, and found 
Farman and his two friends gone. I was gone from the 
shop not more than a minute. I then immediately went 
and saw my lawyer, and within ten minutes returned to the 
shop. I then gave instructions to my workmen to deliver 
the goods to plaintiff, or his agent, if they should return. 
He, nor they never returned to the shop since.'' 




IN GENERAL TERM, 1872. 147 

Farman •. 'Ratdiff §i al. 

It 18 a well settled principle of law, that a mechanic has a 
Ben upon the manufactured goods for the price, unless he 
waives it This he may do by delivery of the goods before 
payment, or accepting security on time. The evidence in 
this case establishes the facts that the goods were to be paid 
for on delivery, and that defendants refused to deliver them 
because they were not paid for. Defendants sued plaintiff, 
and recovered a judgment for the price, which judgment 
plaintiff replevied, and then demands the goods. 

The plaintiff's and defendant's testimony, above quoted, 
shows some discrepancy as to what took place at this last 
demand. But to give it the most favorable construction for 
the plaintiff, it shows that defendant declined to waive his 
lien until he had received his pay, or the debt was secured. 
He asked plaintiff if he had secured the debt, but plaintiff, 
instead of informing him he had replevied the judgment, 
said it was in the hands of his lawyer. Defendant then said 
he must see his lawyer before he would surrender the good(<, 
and immediately went to see him, and when he returned, 
after an absence of about ten minutes, plaintiff was gone. 
In such a case, the defendant was entitled to reasonable 
time to see his attorney. 2 Hilliard on Tort«, page 121. 

We do not think the refusal such a one as to amount to a 
conversion of the goods, nor can the plaintiff recover the 
price of the goods because of such refusal* 

The Judge trying the case so found, and we can not dis* 
turb the finding. 

We do not think it necessary in this case to decide whether 
the plaintiff's replevying the judgment was a discharge of 
the defendant's lien on the goods. 

Judgment affirmed. 



Norm. — A vendor who takes a bill of exchange, or promissorj note, as a 
security for the price, loses his lien — 1 Camp.^ 427; 3 SeoUy 298; 2 Binp., (n. 
c.) 765; 2 Hodgu, 51— and it has been held-*4 B. # Ad^ 568; 2 a ^ M, 



148 SUPERIOR COURT REPORTS. 

PftetE V. Dain. 

606, 612 — that the lien doM not rerive on the dishonor of the inatmnient, if 
it be then outstanding in the hands of a third person, althongb it would be 
otherwise if it were then in the hands of the vendor himself. 1 M. f 8^ 
635, 644 ; 3 C. B., 809, 829. 

The general rale of law is, that where there is a sale of goods, end nothing 
is specified as to delivery, or payment, there still results to the vendor, out 
of the original contract, a right to retain the goods until payment of the 
price. 2 Pick., 212, 515; 6 Pick, 280 ; NewhaU v. VargoM. 15 Maime, 315. 

See Sedgwick on Damages, p. 288 ei ieg. 

^ If the plaintiff recovers the value of the property, and the Judgment is 
satisfied, there would seem to be no doubt that the tHIe t» the property 
should, and does vest in the defendant, he having paid its value— 3 Bcn»- 
well J* CreuwtWs Rep.^ 196. But how fkr this transfer of title depends on 
the judgment, and how far on its satisfaction, seems by no means clear; and 
the better opinion would appear to be, that if the judgment is not for the 
value of the property, or if it remain nnpa^ the title is unaltered.* 8td§- 
wiek an Damagti^ 575. 8u aUo Barb v. FUh^ 8 Blae^f^ 481; 8 Gmmh, 43; 
3 Cbmmofi Bench Rep , 266. 

The obtaming of the value by the plainliff operates as a transfer of the 
title from the time of the conversion. IB Md., 468. — [Bkpobtib. 



4 m^ 



IN GENERAL TERM, 1872 



Annie Paetz i;. Thomas Dain, Appellant 

Appeal from Raio), Judge. 

Arrest — what is cause for — 
False Imprisonment — damage for. 

^ Probable cause " will justify an officer in making an arrest, and the im- 
prisonment of the offender, and if there is probable cause to believe 
that a person is insane, and is about to commit any misohief^ which, if 
committed by a sane person, would constitute a criminal offense, such 




IN GENERAL TERM, 1872. 149 

Pfteti V. Dain. 

officer may detain tbe offender until it may reaeonablj l>e presamed 
that he has changed Us purpose. 

J. S. Haroey^ for appellant 

Chrdon^ Broum ^ Lamb^ for appellee. 

Blair, J. — The plaintiff, who is a married woman, charges 
in her complaint, that the defendant, without any reasonable, 
or probable caose, arrested her, using great force, striking her, 
and tearing her clothes, and put her in the city prison, where 
fihe was imprisoned in a cell, in close custody, &c., for which 
she seeks to recover. The action was brought against the 
defendant Dain, and four others, but dismissed by the plain- 
tiff before trial as to all except Dain. 

The answer was in two paragraphs — the firsts a general 
denial, and second^ that the defendant was a policeman of 
the city of Indianapolis, and about two o'clock in the night 
time he found the defendant in the streets of said city, 
hallooing, and screaming, and threatening to break in the 
windows of a house with a club, and in such a state of excite- 
ment as to appear to be insane, and would not tell the place 
of her residence, and she was then taken to the station house, 
when her husband was sent for, and he took her home, and 
this is the grievance complained of. 

The cause was tried by jury at Special Term, and a verdict 
rendered for the plaintiff in the sum of fifty dollars. A 
motion of the defendant for a new trial was overruled, 
•excepted to, and an appeal taken to General Term. The 
Court gave the jury the following instruction, which it is 
claimed does not state the law correctly: 

Second^ If you believe from the evidence that defendant, 
without probable cause, arrested, and imprisoned plaintiff, 
then the law is for the plaintiff But if you believe from the 
evidence that the defendant acted in good faith, and the 
jplaintiff, by her boisterous, and excited manner, and by her 



150 SUPERIOR COURT REPORTa 

PftetE V. Dain. 

threats to break windows gave the defendant good grocmd 
to believe that she was insane, and woald carry oat her 
threats, then defendant would be justified in arresting her^ 
and if he thought she was insane, it was his duty to take her 
home if he knew it, but if he did not know where her home 
was, then he would have the right to take her to the station 
house. But if he knew where her residence was, be was not 
justified in taking her to the station house. 

Any person may lawfully lay hold of a lunatic, or insane 
person about to commit any mischief, which, if committed 
by a sane person, would constitute a criminal offence, and 
detain him until it may reasonably be presumed that be bas 
changed his purpose — 4 Bl. Com., 293 n. The evidence in 
the case before us shows that the plaintiff was in the street^ 
in front of a saloon, where she said her husband was drink* 
ing, singing, and spending his money, while her children were 
at home suffering from want She admits, that she was 
excited, and there was some evidence tending to show that 
she threatened violence to the door, or window of the saloon, 
but she desisted from that purpose when approached by the 
defendant, and she informed him what she wanted, that she 
wanted her husband out of the saloon. The defendant went 
into the saloon, and returning reported that her husband was 
not in there. She insisting that he was, was taken into 
custody, and taken to the station house, passing by the place 
where she resided, pointing to it, and asking to be taken 
home to her children. Several witnesses say no violence 
was used, but the testimony of the defendant discloses the 
fact that there was struggling, and her dress became disar- 
ranged. Arrived at the station house, she still insisted on 
being taken to her children, who were alone. She was put 
in a cell, and the defendant, and three others started in search 
of her husband (the defendant stopping at a saloon on the 
way to get a drink.) The husband was found at the saloon 
in front of which the plaintiff had been, and he immediately 



IN GENERAL TERM, 1872. 151 

Paeto V. Bain. 

went to the station hoase, the plaintiff was released, and she 
and her husband returned home. 

We think, as applied to the evidence, the instruction was 
correct The plaintiff* was in anguish, and distress, but we 
see no reasonable grounds for supposing that she was insane, 
and after she pointed to her home, which was between the 
saloon and the station house, there was no reason why she 
should have been confined, even for a moment, in a cell. 
She had violated no law of the State, nor ordinance of the 
city, so far an was shown in the cause. The instruction left 
the question with the jury to find whether or not, the defend- 
ant knew where her home was, and they were told, if he 
did not know, he had a right to take her to the station house. 
We think it is as favorable toward the defendant as the 
evidence would justify, and he can not complain. 

The judgment is affinned. 



NoTS. — BTidence is admissible in mitigation of damages that the defend- 
ant had ground to suspect that the plaintiff was guilty of the offense for 
which the arrest was made. Rogtrt ▼. WiUon, Minor ^ 407 

The question as to what is a reasonable, and probable ground for sua- 
picion is a mixed proposition of law, and fact Whether the circumstances 
alleged to show it reasonable, or not, are true, and existed, and the infer- 
ences drawn from them warranted, is a matter of fkct for the consideration 
of the jury ; but whether, supposing them true; they amount to a reasonable 
ground for suspicion, is a question of law for the opinion of the Judge. 
Ponton T. WiUtanUf 1 OaU, j- Damwn't Rep^ K, £., 604 ; 2 Adolphut f 
SaUf Rep., K B^ (K. 8.), 69. 

When the circumstances are such that a person must know why a man 
is about to apprehend him, he need not be told why, and the arrest will be 
legal, and the resistance illegal, as much so as if he had been told. 2 HaWt 
P. C, 82, and n 

Any person may arrest another for the purpose of putting a stop to a 
breach of the peace committed in his presence, and there seems no difference 
between the power of an officer, and that of a private individual in this 
respect. 2 Ifawkina^ Ch. 13, Sec. 8. See aUo Roeeoe's Orim. Rv.^ 239; Foe- 
Ur's Or. L^ 272, 311. 

(Under the New York Oode, a justification on the ground that the defend- 
ant had reason to suspect that a criminal offense had been committed by the 



162 SUPERIOR COURT REPORTS. 

PmU v. DaiD. 

plaintlir must be pleaded specially, and the answers most first show the 
actual commission of an offense, and then the cause to suspect the plaintiff 
of its commission. If less than this is pleaded, or if the OTidence comes 
short of this, it can only go to the question of damages. Bnmn ▼. Chadrey^ 
39 Bofh.) Ses 2 ChretnL Jb., 237, 238, 274. 

The jorj are to consider inter aUa in the estimation of damages, bodily 
sufferings, mental agony, injury to reputation, the circumstances of indig- 
nity, and contumely under which the wrong was dune, and the consequent 
public disgrace to the plaintiff, together with any other circumstances 
belonging to the wrongful act, and tending to the plaintiff's discomfort. 2 
Oreenl. jBb., See, 267, and auihoritiee cited, 

" Where an authority, or license is given by law, and the party exceeds, 
or abuses it, though without intending so to do, yet he is a trespa8«er ab 
imtiOf and damages are to be given for all that he has done, though some 
part of it, had he done nothing more, might have been lawful." 2 OreenL 
A., See, 270, and catea cited. 

** If there was on the part of the defendant a want of probable cause, yet 
if he acted under a mistaken sense of duty, and without any intention of 
oppression, it was at most a case for compensatory, and not for vindictive 
damages." 3 Story^ 1. See alao Sedgwick on Damage*^ 621, 4l eeq. 

<* Where a ministerial officer acts in good faith, for an injury done, he is not 
liable to exemplary damages, but he can claim no farther exemption where 
his acts are clearly against law." Same^ 522. 

''^In vindictive actions, such as * false imprisonment,' it is always given in 
charge to the jury, that they are to inflict damages for example's sake, and 
by way of punishing the defendant. Same^ 521, 3, 4, '5. See alio 4 Wend,, 
113, 139 — but vindictive damages can not be allowed where the wrong 
results from an error of judgment only — 14 La Ann, 806, and notee on page 
528, et eeq. Sedgwick on Damagce. See aleo 1 Leading Orim, Caeea, (B. AH.) 
177 andnaee; 194, 195, andndtee; 202, and nofes.— [RxpoETXm. 



IN GENERAL TERM, 1872. 153 



Schaw V. Dietrichs ei aL 



IN GENERAL TERM, 1872. 



Christian Sohaw v. William Dietrichs, Charles Coulon, 
Charles 6. Coulon, Hans Blume. 

Appeal from Rand, Judge. 

Justice of the Peace — malfeasance of — writs issued by^ 

must be to duly appointed officers — 
Constable — when persons actitiff aSy liable for trespass — 
Arrest and False Imprisonment — when ministerial officers 

and others are liable for. 

The prorisions of the statute requiring a Justice of the Peace to record the 

appoiotment of a special constable on his docket, and to direct process 

to him by name, are imperative, and not directory. 
A mni directed "to any Constable of the County, &c.," will not justify a 

trespass committed by such $pecud Constable in attempting to serve 

such writ. 
Parties acting at the instance of any one assuming the duties of a minipterial 

office, are bound to know whether he is in fact such officer, and whether 

he in fact bears that authority. 

— . Klingensmith, for appellants. 

Baker^ and Gordon^ Brown Sf Lamb for appellee. 

Newcomb, J. — Dietrichs, as a Justice of the Peace, issued 
his warrant for the arrest of Schaw, the plaintiff in this case, 
to answer a charge of provoking one Smith to commit an 
assault and battery on him, Schaw, duly made under oath 
before said Justice. The writ was directed to ''any consta- 
ble of Marion county," but instead of being delivered to a 
constable, it was handed by the Justice to Charles 6. Cou* 



154 SUPERIOR COURT REPORTS 

8eb«w •. Dietrioha «( aL 

Ion, who appears in the subseqaent proceedings under the 
name of a special constable. 

Coulon arrested Schaw, and brought him before the Justice. 
Soon after he was brought into the office of the Justice, the 
latter went to his dinner, Charles G. Coulon leaving at the 
same time. The Justice, and Coulon left the plaintiff in 
charge of Blume, who was a clerk in Dietrich's office. 
While they were absent the plaintiff started out of the office. 
Blume undertook to restrain him from going, and called for 
help, whereupon Charles Coulon, who was prosecuting the 
^ provoke" case, came out of his own into the Justice's office, 
and ordered plaintiff to sit down, and behave himself until 
Esquire Dietrichs should return. Thereupon the plaintiff 
resumed his seat, and awaited the coming of the Justice. 
The weight of evidence is that Schaw was drunk when 
brought before the Justice, and on his return the latter issued 
a mittimus for the commitment of the former to jail, reciting 
in the mittimus that the trial of the charge was necessarily 
postponed by reason of the drunkenness of Schaw, and he 
having failed to give bail for his appearance in the sum of 
fifty dollars, the jailor' was commanded to receive said 
Christian Schaw into his custody in the jail of said county, 
there to remain until discharged by due course of law. 

Schaw was kept in jail until the next day, when, on 
the order of Justice Dietrichs, he was brought out, and the 
prosecution pending against him terminated in a finding of 
guilty, and a nominal fine, with costs. No record of the 
proceedings was made in the docket of Justice Dietrichs for 
more than a month afterward. 

After his release, Schaw brought this suit for the alleged 
assault, arrest, and imprisonment. Dietrichs filed the gen- 
eral denial, and*a second paragraph of answer, setting up the 
above recited proceedings before him against plaintiff, as a 
defense. 

The other defendant) pleaded the general denial separately. 




IN GENERAL TERM, 1872. 155 



Schftw V. Dietrifhs et al. 



Charles G. Coalon filed a second paragraph, jastifying under 
the writ issued, and delivered to him by the Justice. The 
other defendants answered further in justification, that they 
acted as citizens under the command of Charles G. Coulon, 
as special constable. 

The Court at Special Term sustained demurrers to all the 
special answers, to which d^endanti) severally excepted. 
The cause was tried by jury — verdict against all the defend- 
ants for 8500 damages. The defendants filed separate 
motions for a new trial. The plaintiff remitted 8250 of the 
verdict, whereupon the Court overruled the motion for a 
new trial, and rendered judgment on the verdict 

The only real question presented by the record is, did the 
writ delivered by the Justice to Charles G. Coulon authorize 
him to arrest the plaintiff? If it did, the Justice acquired 
jurisdiction of the person of plaintiff, and such jurisdiction 
protected him from suit for subsequent irregularities; and 
the other defendants could justify under the writ. On the 
other hand, if the writ gave Charles G. Coulon no authority 
to make the arrest, he, and all others acting in the premises 
under his orders, as well as the Justice who committed plain* 
tifi* to jail after his arrest, are trespassers. 

The statute defining the powers of Justices in State prose- 
cutions — 2 G. & H., 639 — provides that special constables 
may be appointed under like circumstances, and such 
appointment impose like liabilities as in civil cases. The 
statute relative to such appointments in civil cases is as fol- 
lows: 

^ Whenever there shall be no constable convenient, 
and in the opinion of the Justice an emergency exists for the 
immediate appointment of one, such Justice may appoint a 
special constable to act in a particular cause, and shall note 
such appointment and such cause on the docket, and shaU 
direct process to him by his name and such constable so 
appointed shall discharge the dutieS| receive the fees, and 



156 SUPERIOR COURT REPORTS. 

Schaw V Dietricha 9t oL 

have the powers, in sach caase, appertaining to the office.'' 
2 G. & H., 607. 

This statute was passed apon by the Sapreme Court in 
Benninghoof v. Finney et alj 22 Ind., 101, where it was held 
that the provisions of the statute requiring the Justice to 
note the appointment of a special constable on his docket, 
and to direct process to him by name, are imperative, and 
directory, and that a writ directed to any constable of the 
county, &a, will not justify a trespass committed by such 
special constable in attempting to serve such writ Under 
that decision, the defendants in this case were clearly tres- 
passers in restraining the plaintiff of his liberty. No juris- 
diction of his person was obtained, nor did he voluntarily 
submit to the jurisdiction of the Justice. Indeed, the Jus- 
tice's mittimus recites that he was too drunk to be tried. If 
so, he was too drunk to submit himself to the jurisdiction of 
the Justice, nor did he do so. He attempted to leave the 
Justice's office, but was restrained from doing so by the 
defendants Blume, and Charles Coulon. They were bound 
to know whether Charles 6. Coulon was a regular constable, 
or if they acted under his orders as a special constable, they 
were bound to know whether he in fact bore that authority. 

The ruling of the Judge at Special Term on the demur- 
rers, and in overruling the motion for a new trial, were 
therefore right, and the judgment is affirmed, with costsu 



NoTX. — In aU cases where the cause of action against a judicial olBcer, 
exercising only a special, and limited authority, is founded on his aats done 
colore offieHj the single inquiry is, whether he has acted without any juris- 
diction oTer the subject matter, or has been guilty of an excess of jurisdic- 
tion. 1 Leading Orimimal Ouee, 306. See aUo 1 Chiti^, H^ (14 Am, Bd,), 
181, etteq, and notes; 7 Chnn,^ 11, 95; 3 Binney^ 404; 3 Oan^beU^ 388; 15 
Johnson, 121; 19 <io., 39; 7 Wallace, 523, 535. 

If a magistrate acts bejond the limits of his jurisdiction, his proceedings 
are deemed to be eoram non judiee, and void, and if he attempts to enforce 
Any process founded on any judgment, sentence, or conviction in such case , 



IN GENERAL TERM, 1872. 157 

Schaw V. Dietrichi et oL 

be thereby becomei a trespasser. Same^ and 2 Ora^^ 410; 3 Wenid.^ 202; 1 
PH. U. 5., 138 ; 1 Wend., 126 ; 6 do,, 382 ; 4 John , 450. 

With regard to inferior Goarts, as compared with those of general juris- 
diction, it is for them, when claiming any right, or exemption under their 
proceedings, to show affirmatively that they acted within the limits of their 
jurisdiction. Peacock ▼. Bell, 1 Saunders, 74, and notes; 19 Johnson, 33, 34. 
Sec Tnaffc v. Downes, 3 Moore Com. Pleas, Rep., 41, and note 2; 1 Leading 
Crim. Cases^ (b. a h.), 320; 6 Wend., 170; 12 John^ 267; 8 Mctcalf, 326; 7 
do., 257; 14 Conn., 200; 20 Wend., 236; 12 Vermont, 661. 

Justices of the Peace have always been held responsible to individuals, in 
civil suits, for all the injurious consequences arising from every illegal act 
they may have done, either in the adjudication of causes of which th<'y had 
no jurisdiction, or in the exercise of their ministerial powers, or in the dis- 
charge of their ministerial duties. 1 Gray, 1 : and note, p. 325, 2 Leading 
Crim, Cases. 

If the want of jurisdiction over a particular case, is caused by matters of 
faot, it must be made to appear that they were known, or ought to have 
been known to the Judge, or Magistrate, in order to hold him liable for acta 
done without jurisdiction. 2 Gray, 410, 412. 

If the act of a Justice, issuing a warrant, be invalid on the ground that 
the party to whom issued was not duly authorized to receive, and execute it, 
all persons who act in the execution of the warrant will act without any 
authority ; a Constable who arrests, and a jailor who receives a felon, will 
each be a trespasser, resistance to them will be lawful, everything done by 
either of them will be unlawful, and a Constable, or person^ aiding him, 
may, in some possible iaitance, become amenable, even to a charge of mur- 
der, for acting under at authority which they reasonably considered them- 
selves bound to obey, and of the invalidity whereof they are wholly ignor- 
ant, p. 3282 Leading Crim. Cases. Ste also 3 Moore, C. P., 382 ; 10 Wend., 
128; 19 Vt., 151. See 1 Chittg PL, (14 Am. Ed.) 184. 

Requiring the Justice to insert in a record the process of every proceeding 
before him, and its final determination. See 11 Allen, 33, in ease qf Kelly 
V. Dresser; 4 Metealf, 421. 

Any general authority by Justices to fill up, or alter process would be 
void, and highly improper. 18 Johns., 405. 

When he exceeds his jurisdiction, responsibility attaches. 3 Cranch,, 331; 
2 Blacf^., 429. 

A Constable, whose office is wholly ministerial, may appoint a deputy to 
execute a warrant directed to him, * * but he can not make a deputy 
without some special cause. 2 Ilawk., Ch , 10 See. 36 ; 3 Burr., 1259; 1 Term 
Rep.^ 682. See also 1 Leading Orim Cases, 202, and notes. 

If a warrant be directed to the i^heriff, he may command his bailiff, or 
other sworn and known officer to serve it, without writing any precept; but 
if he will command another man, that is no such officer, to serve it, he must 



ISd SUPERIOR COURT REPORT& 

B«BoMt •. Baker H A 

—■-- — ^- — ■ — 

KiTe him * written preeept» etherwiee as aotion of fklte impritoneoiBt will 
lie. NoU 3, .2 Hal^t Pi, Or., 110. 

A GoBstAble haTiog a warrmat to apprehend the prisoner, gave it to his 
son, who went in pnrsait« the father stsjing behind. In ooming up to the 
prisoner, one of the M>ns laid hold of him, and was stabbed bj the prisoner. 
The father was in sight. HM ky Pwk^ B, — ^The arrest was illegal, the 
father bring too fiir away to be assiniog in it &mm^ p. 116. 

Liabilitj of JnsUoe for seu of special Gonstoble, see <8ie. HI, 1 (7. # if., 
608 

Powers, and duties of oon stables. 2 O. ^ IT^ 617, w^ ndfm. 

The law does not hold oot the »ame indemnity to private penons as it 
does to Constables and other peace officers who ar« «r ojkio not merely per- 
mitted, bnt enjoined by law to arrest offenders. 1 Ritm on Or , 694. The 
party taking upon himself to execute proosea, whether by writ, or warrant, 
must be a legal officer for that purpose — Ssaie, 614; 1 HdU Pi, Cr,^ 457, 
458, 469 — and it mn«t be executed by the party named in it, or by some one 
agisting such party. iSsmt, 615, 616, mmd noU. 8h also 1 Umimg 
C—Uy 202, and notm, — [RapoBTim. 



IN GENERAL TERM, 1872. 



Georob W. Bennett r. Oboroe W. BaKbr bt al, Ap^ 

peliants. 

Appeal from Rakd, Jndge. 

Plradino — amendmefU of — 

Bill of Exceptions — when^ and how defective. 

It is within the di cretion of the Court to allow an amendment to a oom- 

plvint daring the p^>gress of the trial. 
An amendment will not work a delay in the trial, unless it is shown by 



IN GENERAL TERM, 1872. 159 

Bennett v. Baker el al, 

afBdavii that the defendant is prejudiced thereby in his preparation for 
the trial. 

A bill of exceptions contained the following statement: 

** The plaintiff then introduced the following CTidence, (here insert all the 
evidence), which was all the evidence given in said cause *' — 

Held: that eridence can not be made a part of a '* bill of exceptions" in 
this way, although there are papers which appear to be notes of evidence, 
jret bear no marks of filing, ao^ nothing to show an agreement of par- 
ties, that th»7 contain the evidonce. 

Bradbury 8f Bloamery for appellant 
Hanna 8f Eneffler^ for appellee. 

Blair, J. — The complaint in this case was a common 
count for work, and labor done for the defendants. Issues 
were joined in the complaint, and the cause submitted to the 
Court for trial, and after a portion of the evidence of the 
plaintiff was heard, the plaintiff, by leave of Court, filed a 
second paragraph of complaint, alleging that the work, and 
labor was done for the defendants under a written contract, 
which was made a part of the second paragraph. To this 
the defendants objected, for three reasons, as set out in the 
bill of exceptions : 

Firsts Said amendment made an entirely new cause of 
action, and one which the defendants were wholly unpre- 
pared to/neet, and defend. 

Second^ That it was too late to make the amendment after 
the trial had commenced. 

Thirds That the amendment was a departure from the 
original cause of action. 

The reasons urged against the amendment allowed by the 
Court, were not well founded. It was within the discretion 
of the Court to allow the amendment to be made, and Sec- 
tions 97, and 98, of the Code, 2 G. & H., page 117, provide 
that " No cause shall be delayed by reason of an amendment, 
excepting only the time to make up issues, but upon good 



160 SUPERIOR COURT REPORTS. 

Bennett ». Baker ei oL 

cause shown by affidavit of the party, or his agent, asking 
such delay" — ^And the affidavit shall show distinctly in 
what respect the party asking the delay has been prejadiced 
in his preparation for trial by the amendment" 

We see no error in overruling the defendants' objections. 

Issues were joined on the second paragraph of complaint, 
and the trial proceeded. Objection was made by the defend- 
ants to the introduction in evidence by the plaintiff, of the 
written contract, filed with the second paragraph of com- 
plaint, for the reason that it was immaterial, and incompetent, 
having been offered in evidence in a former trial between the 
same parties, for the same services for which plaintiff now 
seeks to recover. 

We know of no rule by which the evidence could have 
been excluded at the time it was offered by the plaintiff, for 
the reasons given by the defendants, and it w^as properly 
admitted in evidence. The bill of exceptions also says that 
the defendants objected to all of plaintifPs evidence, and 
every part thereof, for similar reasons. There is nothing in 
this objection. It is also set out in the bill of exceptions, 
that the defendants offered to prove by William B. Green 
that in a former trial " between these parties, these defend- 
ants offered to go into the trial of all the issuess made by the 
pleadings in the cause, and for that purpose propounded the 
following questions to William B. Green, a competent wit- 
ness, to-wit: ^4f all the allegations in the complaint were 
inquired into in the former trial in this Court, you may so 
state?" 

" If objections were made to the trial of all the issues 
embraced in the complaint, and answer in the trial of the 
former case between these parties, you may so state, and by 
whom made ?" 

The plaintiff objected to the proposed evidence, and the 
objection was sustained by the Court 

We can not see the relevancy of the evidence proposed. 



IN GENERAL TERM, 1872. 161 

Bennett #. Baker «l ml, 

nor what was intended to be proven by the defendants, and 
are of opinion that it was not error to exciade it 

Judgment was rendered for the plaintiff, and the defend- 
ants moved for a new trial for the following reasons : 

Firstj Error of the Court in assessing the amount of 
recovery. 

Secondy The damages are excessive. 

Thirdj The finding of the Court is not sustained by the 
evidence. 

Fourthj That the finding of the Court is contrary to law. 

Fifthj The rejecting evidence offered by the defendants, 
that should have been received. 

Sixthy For receiving evidence offered by the plaintiff that 
should have been rejected^ 

Sevenlhy For sustaining the attachment against the prop- 
erty of the defendants in the absence of any evidence to 
warrant it 

The bill of exceptions contains the following statement: 
^ The plaintiff then introduced the following evidence, (here 
insert all the evidence), which was all the evidence given in 
said cause." 

Evidence can not be made a part of a bill of exceptions 
in this way. 2 O. & H., page 209, Sec. 343. There are 
papers which look like they might be notes of evidence in 
the cause. There are no marks of filing, or anything in the 
record showing there has been an agreement of the parties 
that they contain the evidence. See also in this connection, 
MiUs V. SimmonSy 10 Ind., 164. 

Hence no question can be considered by the Court in 
connection with the evidence, and this disposes of the reasons 
assigned under the Jirsty second^ thirds fourth^ and seventh 
specifications of the motion for a new trial. The fifth and 
sixth have already been disposed of. 

The judgment is affirmed. 



162 SUPERIOR COURT REPORTS. 

BenxieU #. Baker el aL 

Kon.-^Tbe only quettioii in regard to the admMbiiitj of aa ameadmenf 
of the pleading now it, whether ii introdnoei another, and disiinot cauae of 
oootroTer^j. If it doee not, bat the original caoie of action, or ground of 
title, or defenee is adhered to, the allegation!, and pleadings maj be 
amended. 2 OrmnL A., See. U »., andauthmiiies dUd^ 3 Jfott^ 208; & 
Ae^ 804; 5 Bum^ 63; 1 Bkukfn ^70. 

See also oonoerning amendments — 2 Blaekf^^ 420 ; 6 tfs^ 84, 200, 374, 566^ 
671; 6 ife^ 80, 419, 460, «Mf 8 db^ 383, 603. 

The statutes of amendment were designed to meet Tsrianees arising f^m 
aoddental slips, and not to extend to eases where the pleading has been 
intentionallj, and deliberatelj, but err o neoosly finuued. 1 Oagrrirngt/m J* 
JRrmm Rtf9^ 372. 

The Knglish Oonrts haTe rqfiuid amendments where the object was merdj 
to sopplj material osiiMMMit, as well as where the amendment will probably 
i^pfim the defendant of a good drfmn^ which he otherwise might haTe made, 
or would probably require new pleadings, or wdnld tntrodnoe a trwMa t t i o m 
snitrefy ^fermt ftrom that stated in the plea. 2 QtomX. Jhr., As. 11 #^ omid 
€&§$9 dtedm 

The Judge's discretion, in allowing, or reftning amendments, like the 
exercise of Judicial discretion in other cases, can not in genera) be reriewed 
by any other tribunal. 1 OreenL JBo^ See, 73, «ul ouihonUse eiM. Ameri- 
om eaesieUedm 1 MeteaVt I^kUu^ Digeefe.p. 142, 106. 

Ae to emendmmU at ike trimlf in ease of Tariance in setting out written 
instruBMDts, see 1 OhiUg PL, 14 Am. Jtf., 319, amdnoU T; TUUPe iVoctiMr 
9ik JBdf m, a m m dm e nt 

Defects in pleading, when, and how aided. See 1 CMii^ JPL, 1414 Am, 
Ed., 671, end iiofft.-*[K»oBvxs. 



IN GENERAL TERM, 1872. 



165 



Blliott « al V. Boedecker. 



fbem as real estate agents, and biokers, for negotia- 
of defendant's real estate to one Pearson. The 
itistitated before a Justice of the Peace, and 
it by default against defendant After the time of 
ig from the Justice's judgment had elapsed, defendant 
an order, at Special Term, granting him an appeal, 
after a motion by plaintiffs to dismiss the appeal 
led, was tried at Special Term by a jury, and a 
! in favor of the plaintiffs, and there was a judgment on 
over defendant's motion for a new trial, and an 
taken to General Term. The assignments of 



The Ck>urt erred in instructing the jury. 

In overruling the motion for a new trial. 
isons assigned for a new trial are, that the verdict 
jary is not according to law — is contrary to the 
and is not supported by the evidence ; also that the 
in instructing the jury. 
evidence is not in the record, and it would be difficult 
ity to say that the verdict is contrary to the law, or 
or that it is not sustained by the evidence, 
istructions complained of, might have been applica- 
le evidence given to the jury, and if so, we can not 
lis case on the grounds that the instructions were 

See Cayner v. Lynde^ 10 Ind., page 283. 
Jntii& have assigned for cross-error, that the Court 
.granting defendant an appeal from the judgment of 
of the Peace. 
Tendant filed his affidavit, stating that the consta- 
rn to the summons shows that it was served by 
copy at hb last usual place of residence, that 
it never got said copy, never heard of such copy 
as stated in this return, and he never heard of the 
»n of the suit until the expiration of thirty days 
rendition of the judgment 



164 SUPERIOR COURT REPORTS. 

BUioit el al v. Boedeeker. 

to the toll gate, and drove around the gate for the paipose of 
defrauding the plaintiff of her toll. If sach was the case, 
the verdict is supported by the law, and the jury having so 
found, we can not disturb the verdict 

In addition to this, an appeal can not be taken from a 
Special to a General Term of this Court, except in cases 
where an appeal will lie from the Circuit Court to the 
Supreme Court Acts 1871, p. 53, Sec. 25. The provisions 
of Sec 550, p. 269, 2 G. & H., will not permit an appeal 
from the Circuit Court to the Supreme Court in this case, 
the judgment, exclusive of costs, being less than ten dollars. 
Hence the appeal will not lie. 

The appeal is therefon^ dismissed at appellant's cost 



IN GENERAL TERM, 1872. 



Jabhss R. Elliott et al t;. Henry Boedecker, Appellant 

Appeal fh>m Blair, Jadge. 

Verdict — when will not be disturbed — 
Instructions — when presumed correct. 

« 

When the eyidence is not in the record, the yerdict of the Jary will not be 
disturbed, and the instnictions giyen to the jury will, in the absence of 
the eridence, be presumed to be correct. 

George T. Morton^ for appellant 

Lamb 4* McLain^ for appellee. 

Rand, J. — This was a suit brought by Elliott & Denny 
against Henry Boedecker, on an account for services ren- 



t 



IN GENERAL TERM, 1872. 165 

BllioU gtiUv. Boedecker. 

dered by them as real estate agents, and biokers, for negotia- 
ting a sale of defendant's real estate to one Pearson. The 
suit was • instituted before a Justice of the Peace, and 
judgment by default against defendant After the time of 
appealing from the Justice's judgment had elapsed, defendant 
obtained an order, at Special Term, granting him an appeal. 
The case, after a motion by plaintiffs to dismiss the appeal 
was overruled, was tried at Special Term by a jury, and a 
verdict in favor of the plaintiffs, and there was a judgment on 
the verdict over defendant's motion for a new trial, and an 
appeal was taken to General Term. The assignments of 
error are : 

First J The Court erred in instructing the jury. 

Second^ In overruling the motion for a new trial. 

The reasons asnigned for a new trial are, that the verdict 
of the jury is not according to law — is contrary to the 
evidence, and is not supported by the evidence ; also that the 
Ck)urt erred in instructing the jury. 

The evidence is not in the record, and it would be difficult 
without it, to say that the verdict is contrary to the law, or 
evidence, or that it is not sustained by the evidence. 

The instructions complained of, might have been applica- 
ble to the evidence given to the jury, and if so, we can not 
reverse this case on the grounds that the instructions were 
erroneous. See Coyner v. Lynde^ 10 Ind., page 283. 

The plaintiffs have assigned for cross-error, that the Court 
erred in granting defendant an appeal from the judgment of 
the Justice of the Peace. 

The defendant filed his affidavit, stating that the consta- 
ble's return to the summons shows that it was served by 
leaving a copy at his last usual place of residence, that 
defendant never got said copy, never heard of such copy 
being left as stated in this return, and he never heard of the 
institution of the suit until the expiration of thirty days 
after the rendition of the judgment. 



166 SUPERIOR COURT REPORTS. 

Merchants National Bank #. Randall tt aL 

We think the affidavit was sufficient, and the Court at 
Special Term, having sustained the motion, and granted an 
appeal, we can not say he was not fully justified in doing sa 

Judgment is affirmed with costs. 



IN GENERAL TERM, 1872. 



Merchants National Bank t;. Joseph B. Randall et al, 

Appellants. 

Apptal from Blair, Judge. 

Promissory Note — relation of makers and endorsers thereto. 
Endorsers — KabUity of-r- 
Makers — UabiHty of. 

The members of a firm can aot malDtain a suit at law on a note against a 
third member, as joint obligors, because the same persons can not occapj 
the positions of obligor, and obligee, but they can endorse it to a third 
party, who can maintain such action against all the makers. 

In equity, suit can be maintained by the obligees against the other obligeesi 
in which all the equities arising on the oontraot can be taUj adjusted 
between the parties. 

A person may be a joint wMker, and also payee, or emdorMf^ and his rights, 
and liabilities in one dtpacity be different from that of the other, or in 
other words, responsible to the holder in each capaeity, so fiur, that a 
Judgment for, or against him tu tndoraer^ would not extinguish the 
liability of the other parties as joint makera. Hence a Judgment against 
two members of a firm a» mdoraera, does not merge the note so that suit 
can not be maintained against a third member as makn. 

Johnson 4* Stubbs^ for appellants. 
Dye Sf Harris^ for appellee. 



IN GENERAL TERM, 1872. 167 

Merehants National Bank o. Bandall ei al. 

Rabtd, J 4 — This is a suit brought upon a promissory nole 
executed by J. B. Randall & Co., and payable to the order of 
the firm of Lawyer & Hall| at the First National Bank of 
Shelbyville, and by Lawyer & Hall endorsed to said bank, 
and by it to plaintiS The complaint contains two para- 
graphs. 

The firgt alleges that Randall, and Clark were partners, 
trading under the name, and style of J. B. Randall & Co., 
and that Lawyer and Hall were partners, doing business 
under the name of Lawyer & Hall, and that J. B. Randall 
& Co. made the note payable to order of Lawyer & Hall, at 
First National Bank of Shelbyville, and endorsed by Lawyer 
& Hall, and that plaintiff is the holder, and owner of said 
note, and that it is unpaid. 

The second paragraph alleges that the defendants, Joseph 
B. Randall, Levi Clark, Peter C. Lawyer, and Edward K. 
Hall, were partners, doing business under the name, and 
style of J. B. Randall & Co., and that Lawyer, and Hall 
were psirtners, doing business under the name, and style of 
Lawyer &; Hall, and that J. B. Randall & Co. executed the 
note sued on to order of Lawyer & Hall, payable at the First 
National Bank of Shelbyville, and said note was endorsed 
by Lawyer & Hall to said bank, and that said bank endorsed 
the same without recourse to plaintiff^ and that said note 
remains unpaid. 

The note sued on is copied into each paragraph of com- 
plaint. 

Randall demurred to each paragraph of complaint, 
which demurers were overruled, and excepted to, and there- 
upon he filed an answer in seven paragraphs. Plaintiff 
demurred to third %nd fourth paragraphs, and filed motion to 
strike out parts of second^ and fifths and all of seventh para- 
graphs. Demurrers were sustained to thirds ^nA fourth para- 
graphs, and excepted to, and the motion to strike out parts 
of second^ w[id fifth, and all of seventh paragraphs overruled, 



168 SUPERIOR COURT REPORTS. 

M erebanU National Bank r. Randall <f al. 

and excepted to. Tbe Conrt, on motion, struck out second 
paragraph of complaint, which was excepted to, bot the 
paragraph has not been made part of the record. 

Issues were formed, and there was a trial, and Terdict for 
plaintiff for anK)ant of note. Also answers to interrogatories 
by the jury were returned. 

Randall filed motion for judgment in his fitvor on the jury's 
answers to interrogatories, which was overruled, and excepted 
to. He then filed motion for new trial, which was also over-^ 
ruled, and excepted to. Judgment was rendered in ftivor of 
plaintiff on the verdict, and Randall appealed to General 
Term. Tbe evidence is in the record. No defect has been 
pointed out in either paragraph of the complaint, and we 
find none. 

It is urged that the Court erred in striking out the second 
paragraph of defendant's answer. We are of opinion that 
the second paragraph is not properly before us, but we have 
carefully examined it, and have arrived at the conclusion 
that any matter properiy pleaded in it, could have been given 
in evidence, either under the fifths or seventh paragraphs of 
the defendant's answer. 

The thirds fourth^ and Ji/ih paragraphs of the answer sets 
up a former recovery by the First National Bank whilst it 
was a holder, and owner, against Lawyer & Hall, on the 
note, that they were members of the firm of J. B. Randall 
& Co., and joint makers with Randall ; that said bank knew 
that fact before it brought suit; that Randall was at all 
times within reach of the process of the Court, and was not 
sued, and hence the note sued on was merged by the judg«> 
ment against Lawyer & Hall. 

If the tkird^ and fourth paragraphs of the answer are suf- 
ficient to bar a recovery by plaintiff, still there was no error 
in sustaining the demurrers to the same, because all matters 
pleaded in either of them could be proved under the fifth 
paragraph — ^in fact the record shows that the very matter 



IN GENERAL TERM, 1872. 169 

Merchants National Bank r. Randall €t al, 

there pleaded was turned on an issne raised on the fifth para- 
graph of the answer. 

On plaintiflPs motion, the Court propounded the following 
interrogatories to the jury, which were answered as follows, 
to-wit: 

First. Was the note sued on purchased by plaintiff of 
the First National Bank of Shelby ville? Answer — Yes. 

Second. Had said note ever been paid at the time of ita 
assignment to plain tifi ? Ans. — No. 

Third. Has said note ever been paid since said assign- 
ment ; if so, when, and to whom, and by whom ? Ans. — No. 

Fourth. Was not the suit of the First National Bank of 
Shelby ville brought against Lawyer & Hall, upon their 
endorsement of said note, by their firm name of Lawyer & 
Hall, and not as joint makers of said note, or members of 
the firm of J. B. Randall & Co.? Ans. — Yes ; as endorsers. 

On defendants' motion, the Court propounded the follow* 
ing intorrogatories to the jury, which were answered as fol- 
lows, to-wit : 

FirsL At the time the note in question was made, and 
endorsed to the First National Bank of Shelbyville, were 
the defendants, Randall, Lawyer, and Hall partners, doing 
business in the name of J. B. Randall & Co. ? Ans. — Yes. 

Second. Was the First National Bank of Shelbyville 
notified that Randall, Lawyer, and Hall were partners, and 
trading under the firm name of J. B. Randall & Co., at the 
time said note was made, and endorsed to the said First 
National Bank ? Ans. — Yes. 

Third. After the note in question fell due, did the First 
National Bank of Shelbyville bring suit thereon, and recover 
judgment on the same against Lawyer & Hall alone, and 
does said judgment still remain of record in full force? 
Ans. — Yes. 

Fourth. Did the plaintiff purchase said note after the 
same bad been sued on, and after judgment had been 



170 SUPERIOR COURT REPORTS. 

MerdiAiito National Bank # Randall it al. 

obtained on the same against Lawyer & Hall, and did the 
plaintiff take sach assignment of said note, and judgment, 
with full knowledge that such judgment had been already 
rendered on the said note? Ans. — Yes. 

The Court submitted the following interrogatory to the 
jury: 

Fifth. Was the judgment referred to in the ihvd and 
fourth interrogatories against Lawyer & Hall as makers, or 
against them as endorsers? An6.-*Bndor3ers. 

It is unjustly insisted by counsel for Randall that his 
motion for judgment in his favor on the answers to the fore- 
going interrogatories should have been sustained. 

This motion is based upon the fact that the jury in their 
answer to interrogatories found that there had been a former 
recovery on the note against Lawyer & Hall as endorsers. 
It is urged that the jury had no right to determine whether 
the suit was against them as endorsersy but the Ck)urt should 
determine that question firom the record. That record is 
made part of this by the bill of exceptions, and if it was 
improper to submit the question to the jury, still, as we have 
the record before us, we are of opinion that that suit was 
against Lawyer & Hall as endorsers — indeed, the complaint 
expressly declares against them as endorsers. 

It has been held in this State, in the case of Archer v. 
Heiman et oL, 21 Ind., 29, also in Root v. Thomas^ and two 
other cases at the present term of the Supreme Court, that 
a judgment against a part of the obligors to ^ joint contract^ 
merged it as to the obligors not sued. The same rule pre- 
vailed at common law. 

But this is a technical rule, and in our opinion should not 
be extended, or enlarged. 

Does this rule apply to the case at bar? 

It appears from the record that the firm of J. B. Randall 
II Co., was composed of Randall, Lawyer, and Hall ; that 
X B. Randall & Co« made the note in suit to the order of the 



IN GENERAL TERM, 1872. 171 

Merchanto National Bank #. Bandall tt al, 

firm of Lawyer & Hall, and that said firm endorsed it to the 
First National Bank of Shelbyville, which bank was at the 
time aware of the relations the makers, and endorsers have 
to each other. Said bank afterward sued Lawyer & Hall 
as endorsers^ and received a judgment against them as such 
endorsers. Afterward, for a valuable consideration, said 
bank assigned said note to plaintiff, who instituted this suit 
against Randall, Lawyer, and Hall as makers. 

The weight of authority seems to be that Lawyer & Hall 
could not maintain a suit at law on the note against Ran- 
dall as maker, because the same persons can not occupy the 
positions of both obligor, and obligee ; but they could endorse 
it to a third party, who can maintain such action against all 
the makers. See 11 Metcalf, Mass., 398 ; 17 Pickering, 361 ; 
18 Ohio, 305; 5 Cowen, 688. 

The rule seems to be different in equity. A suit in equity 
can be maintained by the obligees against the other obligees, 
in which all the equities arising on the contract can be fully 
adjusted between the parties. See 1 Story Equity, Section 
680. 

We see no reason why a person may not be a joint 
maker, and also payee, or endorser, and his rights and liabili- 
ties in one capacity be different from that of the other ; or 
in other words be responsible 'to the holder in each capacity, 
at least so far that a judgment /or, or against him as endorser 
would not extinguish the liability of other parties as joint 
makers. 

We have come to the conclusion that the rule of merger, 
above referred to, does not apply to this case ; that the judg* 
ment in favor of the bank against Lawyer & Hall as endors* 
ers does not merge the note so that suit can not be main- 
tained against Randall as maker. 

If what we have said is correct, it follows that the Court 
did not err in giving instructions to the jury, or refusing the 
one asked by defendants* 



172 SUPERIOR COURT REPORTS. 

MercbanU National Bank p. Randall el oL 

T 

No other objections have been pointed out to us by couU' 
set, and we see no error in the record. 

The judgment at Special Term is affirmed. 



NoTB. — A judgment is not per te a satisfaction of the debt, nor will it, 
until satisfaction, prevent the holder from proceeding on the bill, or note 
against any other distinct party to it. Smth on MercwUiU Lano^ 347, omd 
note. 

The indorsement of a bill is not merely a transfer of the paper, but a 
fresh, and substantive contract It is equivalent to a new bill drawn by the 
indorfter upon the acceptor in favor of the indorsee. As it falls under the 
general rule, that the obligations of a personal contract are to be determined 
by the law of the place of its execution, an indorser may become respoasi- 
ble for a much higher rate of damages, and of interest, upon the dishonor of a 
note, than he can recover from the drawer. 6 Oranck^ 221 ; 4 Mau.^ 258; 
3 do., 77; Story on Conflict qf Lawt, Qtk Ed^ See. 314 to 321, and See. 343, 
344, 347. 

It ie as to all persons who become holders in whatever country, treated as 
a contract made by the acceptor, in the country where such acceptance Is 
made. Same. 

The contract of indorsement is not an independent one, but a parasite, 
which, like the chamelioa, takes the hue of the thing with which it is con- 
nected. Attached to commercial paper, it becomes a commercial contract, 
operating as a conticgent guaranty of payment, and a transfer of the title, 
where the paper is negotiable; attached to any other ehote in oeHofif it 
becomes an equitable assignment of the beneficial interest without recourse 
to the assignor." Ch. J. Oibton, in Patterton v. Poindexter, e Wall, j* Sery , 
234. See aUo 12 Wend., 439 ; 22 do, 215; 4 Den., N. (7., 122. 

*' There is a substantial distinction between cases of extinguishment 
by merger of the security, and cases of extinguishment by satisfao- 
tion of the debt. These classes, although depending upon different princi- 
ples, have usually been confounded. * * In the first of them, the 
original security is extinguished, but the debt remains; in the second, the 
debt, as well as the security, is extinguished by the acceptance of another 
debt in payment of it. 

Extinguishment by merger takes place between debts of different degrees, 
the lower being lost in the higher, and being by act of law, it is dependent 
on no particular intention. Extinguishment by satisfaction takes place 
indifferently between securities of tbe same degree, or of different degrees, 
and being by act of the paitios, it is the creature of their will. 

No expression of intention would control the law, which prohibits distinct 
securities of different degrees for the same debt, fbr no agreement would 



IN GENERAL TERM, 1872. 178 

Merchants Nationil Bank #. Bandall el al, 

prevent ao obligation from merging in a Judgment on it^or paseing in rem 

*' Neither would an agreement, however explicit, prevent a promissory 
note from merging in a bond, given for the same debt bj the same debtor, 
Ibr to allow a debt to be at the same time of different degrees, and recover- 
able bj a multiplieity of inconsistent remedies, would increase litigation 
nnsettle distinctions, and lead to embarrassment in the limitation of actions, 
and the distribution of assets. But as to the existence of a proroiiisory note 
as a concnrrent security for a book debt produc*«s no such consequences, it 
operates no extinguishment by act of law ; and it depends on the consctnt of 
parties, tAdt, or explicit, whether the new evidence of the debt is accepted 
in di«eharge of the old one. 

*' The difference on the whole consists in this, that in case of merger, 
there is a change only of the security ; but in a case of saiisfuction by sub- 
stitution, there is a change of the debt. Ch, J, Gibton, in Jone$ v. Johnton^ 
3 WaU. j- Serg.^ 276. See alto \ O. 4r H., p. 447, and noiee. 

A, B, and G were partners under the firm name A A Co. B, and were 
also partners under the style of B & 0. The firm of A & Co. made a 
note payble to the order of B & C. This was not a promissory note until 
assignment, but when assigned bj B & C , the assignee, as between himself, 
and the makers, must be regarded as the real payee^ «nd may sue all the 
makers. Murdoekr, Caruthert, 21 Ala^ 785; Smythe v. Strader, Perrine 3^ 
Cb., 9 Atd.^ (Porter)^ 446. In this case th«>y are all said to be mnkers. 
PiUher V. Borrow, 17 Pieh, 361; Lacy ▼. L'Bruee, 6 Aia., 904; Haeelhuret 
▼. P<^e, 2 Stewart j- Porter, 259; Heuwood v. Wingate, 14 If. H., 73. See 
aleo Chitty on BilU, 516, 553; 2 B, Oomm,, 467; Story on Prom. Notee, 4; 
Smith etalY. Lmkee et al, 5 Oowen, 688, 708. 

The Court below — supported by the following authorities, Dillon ▼. State 
Bank, 6 Blaeltf., 5 ; Ooodlot v. Britton, 6 do., 500 ; Lodge v. Staie Bank, 6 
do., 557; MarehaU v. Pyeatt, 13 Jnd., 255 — gave the following instruction in 
thiff ease, upon which hinged the right of recovery against the matter of the 
note, and which was sustained in Oeneral Term : 

'* If you find from the evidence that, after the First National Bank of 
*' Shelby ville had obtained a Judgment upon the note in suit against Ltiwyer 
**& Hall as indorsers of the note, and for a valuable consideration a<^signed 
** said judgment, and note to the plaintiff, the plaintiff, in other words, pur- 
^'chnsing the said assignment, this ast*ignment would carry with it all 
** remedies, or right of action which the First National Bank of Sbelbyville 
*' had against any other parties to the note, and in such case, if you find 
** that the note was made by the firm of J. B. Randall A Co., payable to 
"Lawyer & EUll, who were members of the firm of J. B. Randall & Co., 
*'and hence with the defendant Randall, were jcint makers of the note, if 
** they also under the firm name, and style of Lawyer & Hall indoraed the 
*'note to the First National Bank of Shelby ville, they by such indorse- 



174 SUPERIOR COURT REPORTS. 

Bute of Indiana #. Kimball. 

"ment assumed another, and separate obligation distinct from that of 
" maker^i and they coald be saed upon the obligation thus assumed a$ 
'* indorters^ and a recoTery against them in sncb a suit could not be a bar to 
'* the prosecution of another suit against the defendant Bandal], and them- 
" seWes as makers of the note, and in such ease the plaintiff will be entitled 
" to recover against defendant BandalU" — [Bxpobticb. 



-#-*■ 



IN GENERAL TERM, 1872. 



State op Indiana ex rel Baylcss W. Hanna, Attorney 

General, v. Nathan Kimball et oL 

Appeal fh>m Niwoomb, Judge. 

Treasurer op State — liabilUy oj-^ 
Bond OY^—how far liable on— 
Sureties on— JSomf q/*, how far liable. 

The act to proride a treasury system for the State of Indiana,* and the act 
of 1861, entitled " an act defining certain felonies, and misdemeanors, 
and prescribing punishment therefor, and providinfl; for oertain eyidence 
on the part of the State,"! must be construed in jMiri maUrin. 

The purpose of these acts is to compel the keeping of the money of the 
State in the safes, and Taults proTided for in the first 'cited act, and to 
prohibit the use of the funds in the hands of the Treasurer by InTesting, 
loaning, or depositing the same. 

The last clause of the ffik section of the act of 1859,f which requires that 
all interest, or bonus receiTcd by the Treasurer of State, arising out of 
any money of the State, shall by him be fully accounted fbr, is not a 
penalty prescribed for the Tiolation of law. 

The penalties prescribed by the act of 1861,t for all Tiolationsof the proTi* 

nO.AH.,M6. tSO.AH.,466. f 1 Q. A H., 6tf. |ta.A.H.,«M. 




IN GENERAL TERM, 1872. 175 



Stote of Indiana i^. Kimball. 



sions of the act of 1869, ahow an intention on the part of the Legisla- 
tare to abandon the remedy prorided by the last clanse of the fifth seC' 
tion of the act of 1859, and said clause of said act is no longer opera- 
tiye, the legislation of 1861 being inconsistent therewith. 
Where all the funds, which by law are properly in the hands of the Trens- 
urer of State, haTe been fally accounted for, and paid orer, neither he, 
nor his sureties are liable on bis official bond as Treasurer, for other 
funds acquired by the doing of acta in riolation of law, and which acts 
constitute a crime, or misdemeanor. 

BayleBS W. Hannoj Attorney General, Solomon Claypoolf 
Napoleon B. Taylor^ W. iL Hotrrisony for the State* 

Gordanj Broum^ Sf Lamb^ Sanna 4* Knefter^ for defendant 

Blair, J.— ^This is a snit against the defendant Kimbali 
and his sureties, npon the official bond given by Kimball as 
Treasurer of State* 

At Special Term three breaches of the bond were assigned, 
bnt sabseqnently all were dismissed by the plaintiff bat the 
first, which is, that the defendant did not honestly and faith* 
fully discbarge his duties as Treasurer of State, nor did he 
pay, account for, and deliver to the plaintiff, or his surcessor 
in office, or other person authorized to receive the same, all 
the moneys, securities, and assets belonging to the plaintiff, 
but that during his term of office he, as such Treasurer of 
State, received, and had under his control a large amount of 
money belonging to the plaintiff, which he used on his own 
account, and in his private business, loaned to divers persons 
at interest, and deposited in banks of deposit at interest, and 
by reason of such use, loans, and deposits he made, and 
received interest, profits, and income thereon to a large 
amount, and which he has failed to account for, or pay over 
to his successor, but has converted the same to his own use. 

Separate, and joint demurrers were filed by the defendants 
to this assignment of breach. These demurrers were sus- 
tained on the ground that the assignment did not state facts 
sufficient to constitute a cause of action. 



176 SUPERIOR COURT REPORTS. 

Suto of Indiana •. Kimt>aU. 

^ - - - - —~- 

Judgment was then rendered on the demurrer at Special 
Term, in favor of the defendants, and an appeal was then 
taken by the plaintiiT to General Term. 

The question presented by the assignment of error is the 
action of the Court at Special Term on the demurrer. 

The State, in the breach of the bond set out in the com- 
plaint, seeks to recover of the defendants, interest, profits, 
and income alleged to have been received by the defendant 
Kimball from the use of money of the plaintiff in his private 
business^ and from loans, and deposits of money of the State. 

It is not charged that there has been any failure to pay 
over, or account for the principal of moneys that came to bis 
hands as Treasurer. 

An examination of the statutes relating to the duties, and 
obligations of the Treasurer of State is necessary in the con- 
sideration of the question presented by this demurrer. In 
1859 an act was passed to provide a treasury system for the 
State of Indiana. 1 6. & H., p. 645. Without citing the 
act in full, it will be necessary to notice the following provi- 
sions contained therein : 

Section one provides that the room occupied by the Treasu- 
rer of State, together with the safes, vaults, etc., ^' shall 
constitute the treasury of the State of Indiana," and the 
Treasurer is required to use the same '* as the sole place for 
the deposit, and safe keeping of the moneys of the State, 
etc." 

The third section specifies what moneys shall be paid into 
the State treasurv. 

Section four requires the execution of a bond by the 
Treasurer, and sets out the conditions it shall contain. 

Section five prohibits the Treasurer from loaning'^ using", or 
depositing in any bank, or with any person, any of the 
moneys of the State, and says the same shall be safely kept 
until directed to be paid out, or transferred by law, and the 
Treasurer is << expressly prohibited from receiving, in any 



IN GENERAL TERM. 1872- 177 

State of lodiana «. KimlMtll. 

manner, for his own nse, any interest, premium, gratuity, 
bonus, or benefit whatever by the disposition of, or arising 
out of any money, or property belonging to the State, or to 
any county, or any fund of the State, or county, or of any 
loan obtained for the State, or for any county, but whatever 
is so received shall by him be fully accounted for. 

The sixth section requires every person making payment 
into the treasury to first furnish the Auditor of State with a 
description of the liability on account of which payment is 
to be made, this is to be certified to the Treasurer, and the 
Auditor must also '^ make his draft in favor of the Treasurer 
upon the person making the payment, and the certificate, and 
draft must then be presented to the Treasurer, and he shall 
receive the money ; and the Treasurer is expressly prohibited 
from receiving any money into the treasury except it be thus 
paid upon draft" 

Section seven expressly prohibits the Treasurer '< from pay- 
ing any money out of, or transferring any money from the 
treasury of the State, except upon the warrant of the 
Auditor of State," etc 

This act prescribed no penalties for the violation of any 
of its provisions. It prescribes certain things that shall be 
done, and the manner of doing them, and prohibits in express 
terms the doing of certain other things, and among them the 
receiving by the Treasurer of any interest, or bonus, or ben- 
efit by the disposition of any money belonging to the State, 
but says that "• whatever is so received shall by him be fully 
accounted for." 

It is evident from the express provisions of this statute, 
that it was the intention of the Legislature that the money 
in the treasury of the State should be kept at all times in 
the safes, and vaults provided for that purpose. The act was 
passed for the purpose of preventing the money from being 
removed for any purpose except upon the warrant of the 
Auditor of State, drawn in pursuance of law. It is evident 
4 



178 SUPERIOR COURT REPORTa 

Bute of Indiana •. Kimball. 

thai the Legislatnre was looking to, and legislating to secure 
the safe keeping of the monies of the State, and intended 
that no license should be given for the removal of the money, 
and its deposit in bank, for the reason that it might endanger 
the safe keeping of the fund. The State does not levy taxes, 
and cause them to be paid into the treasury for the purpose 
of being loaned, or deposited for purposes of accumulation, 
but to be applied to the payment of the current expenses of 
the government, and to discharge the obligations of the 
State. It is not expected that large sums of money will 
accumulate, and lie in the hands of the Treasurer, or be 
loaned, or deposited by him, and the statute says expressly 
that the Treasurer shall not so use the money, nor receive 
any interest, or bonus for his own use, by the disposition 
made of, or arising out of any money of the State. 

To add this provision : that ^ whatever is so received shall 
by him be fully accounted for," is ad anomaly in legis- 
lation. 

It is very unusual for a State to prohibit the doing of an 
act, and at the same time provide that if the act is done, and 
a profit made, interest, or bonus received, it must be fully 
accounted for, and paid over. 

This paying over and accounting for is not provided as a 
penalty for the violation of the law, but so far as the act 
under consideration specifies, it simply proposes to the 
Treasurer that if he should remove the money from the 
vaults, and loan, or deposit it, and receive therefor any inter- 
est, the violation of law will be forgiven if he shall fully 
account for the amount received. 

However unusual this kind of legislation may be, it is 
perhaps competent for the Legislature to so enact, and if 
this legislation stood alone, though the mode of the account- 
ing, or authority to call upon him to account is not in any 
manner defined, nor any remedy specified if there is a fSailure 
to account ; courts might find a remedy, and enforce it, by 



IN GENERAL TERM, 1872. 179 

State of Indiana •. Kimball. 

rastainiTig a salt upon his official bond, or otherwise. 
But at the next session of the Legislature, in 1861, another 
act was passed entitled ^ an act defining certain felonies, and 
misdemeanors, and prescribing punishment therefor, and 
providing for certain evidence on the part of the State. 2 
6. & H., 456. 

The first section of this act says, that if any officer 
entrusted with money of the State shall use the same by 
way of investment, or shall loan, or deposit the same, '' he 
sliall be deemed guilty of a felony, and upon conviction 
thereof shall be imprisoned in the State prison, not less than 
one, nor more than twenty-one years, and be fined not 
exceeding double the value of the money, etc" 

By the third section it is made a misdemeanor for the 
Treasurer to receive^ or pay out any public money in any 
other manner than as prescribed by law, and on conviction 
thereof he '< shall be fined not less than fifty, nor more than 
five hundred dollars, and be imprisoned in the county prison 
not less than one year." 

Section five provides that if the Treasurer of State shall 
receive any fee, bonus, or perquisite of any kind, on account 
of any public money, and shall fail, or neglect to report, and 
pay the same into the treasury, in the manner, and at the 
time required by law, he shall be deemed guilty of a misde- 
meanor, and upon conviction thereof shall be fined in a sum 
equal to double the value of the amount so received, and be 
imprisoned in the county jail not less than one month, nor 
more than one year. 

These acts being expressions of the legislative will upon 
the same subject, must be construed in pari materia. It is 
evident that the general intention, and purpose of the last 
act is the same as that of the first, that is, to compel the 
keeping of the money in the safes, and vaults provided for 
in the first recited act, and prohibit the use of the funds of 
the State in the hands of the Treasurer by investing, loaning. 



180 SUPERIOR COURT REPORTS. 

SUte of Indiana v. Kimball. 

or depositing the same. The act just cited is highly penal 
in its character. 

The Treasurer is in the first place expressly prohibited from 
removing the monies from the treasury to use, loan, or 
deposit the same. In the second place, it is equally unlaw- 
ful for him to receive any interest, or bonus, for the use, loan, 
or deposit of the monies. To do the first act is a felony ; to 
receive any interest, or bonus is a misdemeanor. 

Suppose we give force, and effect to every portion of these 
acts, by holding that the interest sued for can be recovered 
in this suit upon the official bond of the Treasurer by reason 
of the provision that requires the Treasurer to account for 
" whatever is so received." The State would in such case 
recover the amount of interest of the Treasurer in a civil 
suit, by virtue of the contract contained and entered into by 
the Treasurer and his sureties,, in the execution by them of 
the bond. 

In addition to this the Treasurer might be convicted of a 
felony for using, loaning, or depositing the money, and 
imprisoned in the State prison for not less than one, nor 
more than twenty-one years. 

Again, he might still further be convicted of a misde- 
meanor for receiving the interest, and failing to account for 
it, and on conviction the law says he "shall be fined in a 
sum equal to double the value of the amount so receivedi 
and be imprisoned in the county jail not less than one month, 
nor more than one year." 

The act of 1861 is the last expression of the Legislature, 
and there is no question as to the validity of its provisions. 
Does it repeal any of the provisions of the former act, and 
especially that portion requiring interest illegally received to 
be accounted for? Is the last clause of the fifth section of 
the act of 1859 in force, so as to give the State a right of 
action in a civil suit against the Treasurer, and bis sureties 
on the bond ? 




IN GENERAL TERM, 1872. 181 

State of Indiana v. KimbalL 

Now it is, perhaps, competent for the Legislatare, by 
express statute, to authorize the taking of an obligation, 
bond, or contraet from her cflGicer that he will not do an 
illegal act that is a felony, and that he will not do another 
additional act with reference to the same matter that is a 
misdemeanor, and at the same time contract that if these 
acts are done, the State shall receive all the profits that may 
be acquired by the illegal and criminal acts, and give a 
remedy to recover those profits if they are not voluntarily 
paid over. 

Courts would be slow, however, to imply such an inten- 
tion on the part of the Legislature, firom any doubtful, or 
vague expressions of a statute; for it is an old, well estab- 
lished, and wholesome rule of law, founded on general prin- 
ciples of public policy^ that no court will lend its aid to a 
man whose cause of action is founded upon an illegal or 
immoral act 

If A lets B have a thousand dollars under an agreement 
that B shall not wager the same In any game of chance, jind 
a further agreement that if he does so wager it, and win, the 
profits resulting therefrom shall be paid to A, a court will not 
permit A to come in, and invoke its aid to assist him in 
recovering the profits of B. 

It is possible, as before indicated, that the State, by her 
Legislature, may set a bad example — one at variance with 
all previous rules of public policy — by reserving to herself a 
right of action to recover the proceeds of an illegal act, not 
as a penalty for a violation of her laws, but because she has 
so stipulated in the contract or bond. 

But to so hold, there must be no doubt as to the legislative 
intention, and the same should be clearly, and definitely 
expressed. So far from the statutes clearly indicating such 
intention^ there is much that leads us to an opposite conclu- 
sion. 

The act of 1859 was mild in its character. It prohibited 



182 SUPERIOR COURT REPORTa 

SUte of Indiana *. Kimball 

in express terms the doing of certain things, but gave no 
sanction to the prohibitions by providing penalties. It then 
provided that interest acquired by violations of the law 
should be fully accounted for. This was not by that act 
intended to be imposed as a penalty for the violation of law, 
but seems to indicate that if interest is so received the State 
shall have a right to call upon him, and compel an account- 
ing, settlement, and paying over of the interest illegally 
acquired. This would involve a waiver on the part of the 
State of the wrong done in violating the law, and an adop- 
tion of the illegal acts of the Treasurer, by which the inter- 
est was acquired, and an acceptance of the money in satis- 
faction of the wrong, and of the contract of the Treasurer 
to account for the same. 

While for the purpose of carrying out the intention of the 
Legislature in protecting the treasury, the above construction 
might properly have been given to the section cited in the 
act of 1859 when standing alone; the adoption of the act 
of 1861 seems to clearly indicate an intention on the part of 
the Legislature to abandon the remedy which was given, or 
allowed by the act of 1859; and without proposing to rely 
on the contract, obligation, or duty to account for the interest 
illegally acquired, substituted penalties to be inflicted, or 
incurred, not only when the first step towards acquiring the 
interest was taken, but additional ones to be applied wheu 
the second step should be taken — that of receiving the 
interest 

We are strengthened in this conclusion by the fact that 
one of the penalties in the act of 1861 is measured by the 
amount of interest received, and the fine can not be less than 
double the amount received. 

Is it reasonable to conclude that the Legislature in 1861 
intended that the State should have a right of action in a 
civil suit against the Treasurer, and his sureties on their 
bond to recover interest which he was prohibited from 



IN GENERAL TERM, 1872. 183 

Siate of Indiana •. Kimball. 

acquiring, and in addition that he might* be convicted of a 
felony, and imprisioned in the State prison for loaning, or 
depositing the money by which the interest was acquired, 
and also that he might be convicted of a misdemeanor for 
receiving the interest, and not accounting for it, and impris- 
oned, and fined, as before stated, in a sum not less than 
double the amount received ? 

This would be an accumulation of remedies, the parallel 
of which can not be found in our statutes, and is not war- 
ranted by the spirit of any code not based on the ''principles 
of vindictive justice," and we can not suppose that the 
Legislature had such intention. 

In arriving at these conclusions, we are not letting down 
the barrier, and opening the door for fraud, and peculation. 
If the money in the treasury is not fully accounted for, the 
Treasurer, and his sureties are clearly liable for it If 
removed from the vaults to loan, or deposit, the 12th, and 
13th Sections of the act of 1859* give a summary, and effi- 
cient remedy, in addition to a suit upon the bond if the 
money is not accounted for. 

Again, the provisions of the penal act of 1861 being valid, 
an enforcement of its provisions would be more efficacious 
than for the State to say to the Treasurer you must not loan, 
or deposit the money in your hands, but if you do loan it, 
I will agree to receive the interest of you, and you, and your 
sureties must agree in your bond to pay it to me. After 
making such agreement, it would be bad faith on the part of 
the State to turn around, and enforce the provisions of the 
penal act of 1861, and punish the Treasurer for the acts by 
which the Interest was made, which, if the position of the 
plaintiff is correct, she had before contracted, by taking the 
bond of the defendants, to receive. 

By accepting the office, and entering upon the duties of 
the same, the Treasurer assumes all the obligations inci- 
dent to a faithful, and honest discharge of those duties, 



184 SUPERIOR COURT REPORTa 

State of Indiana •. Kimball. 

and the object to be attained by the execation of the official 
bond is, that the State may have the undertaking of others 
as sureties for the Treasurer, and while the sureties in such 
caM are liable upon the bond in all cases where the principal 
is clearly liable, they are nevertheless sureties, and ought not 
to have their obligations extended by doubtful construction 
beyond the terms of the law, and the bond, or contract which 
they have entered into. It is not necessary to cite authori- 
ties in support of this well recognized rule of law. When 
all the funds, which by the terms of the law are properly in 
the hands of the Treasurer, have been fully accounted for, 
and paid over, to hold the parties liable for other funds that 
have been acquired in violation of law, and in acquiring 
which the Treasurer may be prosecuted in criminal actions, 
is extending the terms of the bond beyond anything that the 
parties could reasonably be held to contemplate at the time 
of its execution. 

For these, and other reasons given by Judges Newcomb 
and Rand, a majority of the Court is of opinion that the 
latter clause of the fifty-second Section of the act of 1859 
is no longer operative, the legislation of 1861 being incon- 
sistent therewith, and that the action of the Court at Special 
Term should be affirmed. 

We all concur in the ruling of the Court at Special Term, 
that the Attorney General had authority to institute the suit 
as stated in the opinion of Judge Rand. 

Judgment affirmed. 




IN GENERAL TERM, 1872. 185 



Stote of Indiana •. KimlMkU. 



MM : That the State can not maintain a civil suit against an ex-Treasnrer 
of State for interest charged to have been realized by him from loans of 
State foods, so long as she makes the requirement that he shall not pay 
such interest into the treasury in any other way than by accusing him- 
self of the commission of an offense against the criminal code, and 
placing on record evidence to be used against him in case the State 
should resort to a prosecution for such offense — per Newcomh^ J. 

StaiuU9 of 1839, and 1861, and See. 14, Ariiele 1, ConsUiuiion of Indiana^ 
construed. 

Nbwcomb, J. — I concur in opinion Tyith my brother Judges 
that the Attorney Greneral had authority to institute this suit 
in the name of the State, and I agree with Judge Blair that 
the judgment at Special Term should be affirmed. 

My conclusion in favor of affirmance is based more par- 
ticularly on the sixth section of the Treasury Act of 1859, 1 
G. & H., 647, and Section 14, of Article 1, of the Constitu- 
tion of Indiana. 

Section 6, of the Treasury Act, is as follows : 

<^ Every pen?on making payments into the treasury of 
State, shall furnish to the Auditor of State a description of 
the liability on account of which such payment is to be made^ 
and the Auditor of State, after careful examination of such 
documents, or accounts, as the case may require, shall certify 
to the Treasurer of State the amount to be paid, and the 
fund to which it is to be paid, and shall make hig draft in 
favor of the Treasurer upon the person making the payment, 
which certificate and draft shall then be presented by such 
person to the Treasurer of State, who shall receive such 
money ; number, register, file, and preserve such draft, and 
certificate, and shall give a receipt for the amount paid, 
specifying the liability on account of which it is paid; 
and the Treasurer of State is expressly prohibited from receiv" 
ing any money whatever into the State treasury, or on account 
of auy fund thereof except it be paid upon drafts as herein 
provided!^ 



186 SUPERIOR COURT REPORTS. 

State of Indiaott v. KimbalL 

By the statute of 1861, cited in the other opinions deliv- 
ered in this case, it is made a criminal ofiense in the Treas- 
urer of State to loan, or deposit money belonging to the 
State treasury ; yet if he does so loan, or deposit the same, 
he can not possibly pay into the treasury any interest received 
tliereon, without furnishing evidence against himself in a 
criminal prosecution. He must first report to the Auditor 
the fact that he has violated the law, and state the amount 
of profit realized thereby ; then on his report the Auditor is 
required to issue a certificate, and draft, both necessarily 
reciting the fact that the Treasurer has made unlawful gains 
on the State's money, and both these documents the offend- 
ing Treasurer is required to register, file, and preserve in his 
office, as permanent record evidence against himself, or, if he 
has ceased to be such officer, then his successor is in like 
manner to register, file, and preserve them. 

This id the only mode by which the unlawful interest can 
find its way to the State treasury, for the statute expressly 
prohibits its payment in any other manner. 

It is for not doing this, that the present suit has been 
brought against Kimball, and the sureties on his official 
bond. Can any man, be he a public officer, or private citizen, 
be held liable for damages in a civil action for not doing an 
act, the doing of which is an accusation against himself that 
he has violated a criminal statute? The Constitution gives 
an emphatic negative answer. It says :' '^ No person, in 
any criminal prosecution, shall be compelled to testify against 
himself." 

In WiUdns v. Malone, 14 Ind., 154, the Supreme Court 
make the following observations on this clause of the Con- 
stitution : '* Literally, this provision extends to criminal 
prosecutions only, and not to civil actions ; but we think its 
spirit and intent go much farther, and protect a person firom 
a compulsory disclosure in a civil suit, of facts tending to 
criminate the party, whenever his answer could be given in 



IN GENERAL TERM, 1872. 187 

Bute of Indiana v. Kimball. 

eyidence against him in a subsequent criminal prosecution." 
In Ford v. The SkUe, 29 Ind., 542, it was held that a 
witness not only was not bound to give testimony which 
would tend to show him guilty of a crime, but that he was 
not bound to 'disclose a single link in the chain of evidence 
which would convict him. 

If a witness, called to testify in a court of justice, may not 
be required to answer a question, the answer to which may 
by possibility be used against him in a subsequent criminal 
prosecution, it is equally true, in my judgment, that no man 
can be required to furnish evidence out of court that might 
be used against him in a subsequent criminal prosecution. 

In opposition to this view of the case in hand, it has been 
urged that the same reasoning would absolve the Treasurer 
from returning money illegally taken from the State treasury. 
The cases do not seem to me to be at all alike. All money 
received into the treasury, in contemplation of law, remains 
there until paid out in the manner authorized by the statute 
The Auditor's books show that a certain amount of money 
is in the treasury, and if by any means a portion, or all of it 
has disappeared without being drawn out on proper warrants 
issued by the Auditor, the missing money may be replaced 
without making the report required by section 6, of the act 
of 1859« At least this could be done during the term of the 
officer under whose administration the money may have 
disappeared. After the expiration of his term of office, his 
successor may demand the money shown by the books of 
the Auditor's, and Treasurer's offices to be in his hands, and 
he may pay it over without thereby admitting that he has 
been guilty of either of the offenses specified in the first 
section of the act of February 22, 1861. That section pro- 
vides that any/atVur^, or refusal of such officer to pay over, 
or produce any such money, funds, securities, or other prop- 
erty when demanded by any officer, or person entitled to 
receive the same, or when required by law, shall be held 



188 SUPERIOR COURT REPORTS. 

State of Indiana v. Kimball. 

prima facie evidence of the felony therein defined. The 
necessary sequence of this provision is, that the payment on 
demand, or when required by law, is not to be considered as 
prima fade evidence, nor as any evidence, that the party so 
paying has violated the penal clauses of that section. 

It will be seen by reference to the several sections of these 
statutes, that money that has once come to the Treasurer's 
hands, and been charged to him on the Auditor's books, may 
if it has been removed from the proper place of custody, be 
replaced, or paid over to the Treasurer's official successor 
without the interposition of the Auditor 

But if there should be a defalcation so long continued as 
to make it necessary for money paid in discharge of it to be 
reported to the Auditor, it does not follow that the delinquent 
officer in making such payment need charge himself with 
having become liable to a criminal prosecution. Money may 
disappear from the treasury, and yet the Treasurer be guilty 
of no crime, although liable to an action for its recovery. 
If by reason of the depredations of thieves, burglars, or 
embezzlement by an employe in his office, the Treasurer 
should be unable to produce, or pay over on demand, money 
that had come into the treasury, such failure would not make 
him a criminal, therefore he could subsequently pay it back 
by the process prescribed in the act of 1859, without accusing 
himself of crime. The statutes provide other methods of 
ascertaining the state of the treasury. They are by means 
of an examination to be made under the authority of the 
General Assembly, or either branch thereof, or by an account- 
ant appointed by the Governor, assisted by the Secretary of 
State — Section 13, of the treasury act, 1 G. & H., 649; or by 
the failure of the Treasurer to pay over to his successor in 
office the amount shown by the Auditor's books to be 
chargeable to him — Section 6, of the embezzlement act, 2 
Q. & H., 457. If in either case a deficiency is found to 
exist, I think the Treasurer may make the loss good^ even 



IN GENERAL TERM, 1872. 189 

Bute of Indiana •. Kimball. 

through the medium of a report to, and draft upon him by 
the Auditor of State, because he need not, in making good 
the loss, charge himself with having criminally abstracted the 
funds. It would be enough for him to say in his descriptive 
report to the Auditor that the money was due on account of 
a deficiency in the treasury, stating the particular fund, or 
funds in which the deficiency existed. He need not state that 
it had been feloniously withdrawn by him, while in the case 
we are now considering, the very fact of reporting to the 
Auditor that certain interest is due from him on loans, or 
deposits made from the treasury, makes him a self-accuser, 
and at the same time furnishes evidence ample to convict 
him of the felony defined by the first section of the embez- 
zlement act. 

For the foregoing reasons, if there were no others, I should 
feel constrained to hold that the State can not maintain a 
civil suit against an ex-Treasurer of State for interest charged 
to have been realized by him from loans of State funds, so 
long as she makes the requirement that he shall not pay such 
interest into the treasury in any other way than by accusing 
himself of the commission of an offense against the criminal 
code, and placing on record evidence to be used against him 
in case tfie State should resort to a prosecution for such 
offense. 



190 SUPERIOR COURT REPORTS. 



Sute of Indian* v. KtmlMill. 



Ihld: That the LegUlatore may by joint TMolation, a recognized form of 
ezpreKing the LegislatiTe will, gire tiie Attorney General authority to 
act as the attorney, or person who informs, or relates to the Court the 
gricranoes of the Stat^, and asks the Court to redress these wrongs, 
which it is alleged the Stste hss sustained, and under such authority he 
may institute this suit Per Rand, J. 

Held: That there is no penal, or criminal punishment prorided in the Treas- 
ury Act of 1859, for its Tiolation ; that the act of 1861 so far amended 
that act as to punii»h officers for Tiolating thnt part prohibiting the 
loaning^ uting, or deponting in banh, or with other ptreona^ the public 
funds; that such act of 1S61, instend of repealing a part, and fubstitn- 
ting others, was intended only to place around the treasury additional 
lafegnards to prevent the use of r blic fbnds by oflScials. Per Rand, J. 

Btld: That the interest made by the Treasurer on the fund-^ belonging to 
the trpasurj \a the property of the State, and the failure of the Treasu- 
rer to Mccount for and pay the same into the tnrasury, for the reason 
that his 90 doing would fbmish eTidence against him which might ba 
used in a criminal prosei'Ution, or for any other reaeon, does not affect 
the State's right to the same, and the failnre to pay the same is a breach 
of the conditions of his bond. Per Rand^ J. 

Hdd: That no demand for such interest is neces^aTy before suit— coming 
his hands as Treasurer, he is required to fully account for the san 6 
under Bee. 5, Act 1859, and failing so to do, is another breach of the 
bond. Per Rand, J. 

Rand, J. — This was a suit brought in the name of the 
State of Indiana on the relation of Bayless W. Hanna, 
Attorney General, against Nathan Kimball, as principal, and 
the other defendants as sureties on the official bond of said 
Kimball as Treasurer of State. 

The bond in suit is conditioned according to the require- 
ment^ of the statute that Kimball ''shall honestly and faith* 
fully discharge the duties of his office, and that all persons 
by him intrusted with any of the concerns thereof shall act 
with fidelity, and that he shall render just and true accounts 
of the condition of the treasury of said State when required 
by law, and shall at. the end of his term, or sooner, or at the 
expiration of his office, pay, and deliver to his successor, or 
to such person as may be otherwise authorized to receive 



IN GENERAL TERM, 1872. 191 

SUte of Indimna v. KimbftU. 

them, ail moneys, secarities, assets, and property of every 
kind belonging to the treasury of said State in his hands as 
snch Treasurer, or in the hands of any of his employees." 

The only breach which we have to consider, is the 
allegation that he did not honestly, and faithfully dis- 
charge hit( duties as Treasurer of State, nor did he pay, 
account for, and deliver to the plaintiff, or his successor in 
office, or other person authorized to receive the same, all the 
moneys, securities, and assets belonging to the plaintiff, 
but that during his term of (Office he, as such Treasurer of 
State, received, and had under his control a large amount of 
money belonging to the plaintiff, which he used on his own 
account, and in his private business, loaned to divers persons 
at interest, and deposited in banks of deposit at interest, and 
by reason of such use, loans, and deposits he made, and 
received interest, profits, and income thereon to a large 
amount, and which he has failed to account for, or pay over 
to his successor, but has converted the same to his own use. 

The Court at Special Term sustained a demurrer to the 
complaint, and on appeal two questions are raised by the 
assignment of errors: 

Firstj Whether the State, on the relation of the Attorney 
Greneral, can maintain the suit? 

Second^ If it can be maintained on snch relation, does the 
complaint state facts sufficient to constitute a breach of the 
conditions of the bond ? 

The first point was so fully, and ably discussed by Judge 
Blair at Special Term, that I will content myself by referring 
to his argument, and the authorities there cited, and say that 
I concur with him that the suit can be maintained on the 
relation of the Attorney General. 

He says: ^ It is contended that the action is not brought 
by any person as relator that has a right to institute the said 
action, or prosecute the same as such relator, the Attorney 
General not being authorized to institute said action as 



192 SUPERIOR COURT REPORTS. 

State of Indimnm v. Kimball. 

relator, or otherwise, and the State Auditor being the only 
person authorized by law to institute the same." 

In support of this, it is insisted that the sixth and seventh 
clauses of section two, of the act defining the powers, and 
duties of Auditor of State, being express statutory enact- 
ments, preclude the Legislature from conferring upon the 
Attorney General, by a joint resolution, the authority to 
institute the suit The statute referred to reads as foUows: 

" Section 2. He shall, • • • Sixth, Insti- 
tute, and prosecute, in the name of the State, all proper suits 
for the recovery of any debts, moneys, or property of the 
State, or for the ascertainment of any right, or liability con- 
cerning the same. Seventh^ Direct, and superintend the col- 
lection of all moneys due the State, and employ counsel to 
prosecute suits instituted at his instance on behalf of the 
State." 1 G. & a, p. 118. 

It is undoubtedly true that a joint resolution is not a law ; 
but how far the Legislature may control, or direct the action 
of officers by a joint resolution, has never been iully, and 
authentically determined. 

As a joint resolution is not a law, it follows that a law 
can not be changed, or amended thereby, and hence where 
the powers, and duties of an officer, and the manner of 
executing the same, are prescribed by law, no change of 
these duties and powers, and their mode of exercise, incon- 
sistent with the statute, can be made by a joint resolution. 

The case of The State ex rel Broum v. Bailey, 16 Ind.,46, 
has been cited and commented upon by counsel, and a brief 
review of the case will aid us somewhat in the present 
examination. In that case the duties, and authority of the 
Secretary of State, with reference to the distribution of the 
laws, were prescribed by express statute, and these enact- 
ments required him to distribute the laws in one volume to 
the several counties of the State. The Constitution also 
provides that '* No act shall take effect until the same shall 



IN GENERAL TERM, 1872. 193 

State of Indiana v. Kimball. 

have been published and circalated in the several counties of 
the State, by authority, except in case of emergency, which 
emergency shall be declared in the preamble, or in the body 
of the law." Const., Art. 4, Sec. 28. 

We see from the foregoing, that the law was in perfect 
harmony with the Constitution, and conferred the necessary 
"authority" upon the Secretary of State to publish, and 
circulate the laws in one volume. 

On the 9th of June, 1852, while the foregoing law was in 
force, the Legislature, by a joint resolution, directed the 
Secretary of State to publish, of the many laws passed at 
that session, a certain railroad act, and four others, and circu- 
late them as soon as convenient. They were so published 
and circulated, and the court held that they took effect, and 
were in force long before the laws were published, and circu- 
lated, according to the provisions of the law then in force. 

The Constitution required the laws to be published, and 
circulated " by authority." There was a law in the statutes 
conferring that authority, and prescribing the manner of its 
exercise. 

The Legislature, by a joint resolution, conferred the same 
authority, and prescribed a mode, differing somewhat from 
the statute, by which it should be exercised, and the acts of 
the officer under it were held to be valid, and the laws circu- 
lated were held to be in force. 

This was not changing the law by the joint resolution. 
The law remained as it was, and required the Secretary of 
State to comply with its provisions, by afterwards circulating 
all the laws in one volume. Suppose the joint resolution 
had conferred the authority upon the Auditor of State, or 
some other officer, would the ruling have been otherwise ? 
I fail to see any reason for supposing that it would have 
been different. 

In the case cited, the Constitution required the laws to be 
circulated by authority. A statute conferred that authority. 
5 



194 SUPERIOR COURT REPORTS. 

Slate of Indian* v, Kimball. 

The Ck>nrt held that the Legislatare by a joint resolatioiii 
differing in some immaterial matters from the statute, had 
also conferred the authority. This, I take it, is the force, and 
effect of the decision in the case cited. 

The repealing of laws by implication is not favored, and 
if two statutes are not absolutely inconsistent with each 
other, and a construction can be given that will uphold each, 
a court will not hesitate to give such construction. Hence 
if other statutes were enacted giving some other officer the 
same power to institute suits, which is conferred upon 
the Auditor of State by the statute before cited, the 
two enactments would not necessarily conflict with each 
other. 

It has been held by the Supreme Ck>urt in the case of 
Shook et al v. The Slate ex rel Steven*^ 6 Ind., 113, that any 
officer ''entrusted with the duty of protecting, and preserving 
the surplus revenue fund may be a relator in a suit on a 
bond to secure a loan from that fund ; and we may have 
many instances where the same powers can be exercised by 
different officers.. The officer first instituting a suit would 
have precedence, and any second suit by any other officer for 
the same cause of action would be abated by the prior suit, 
and but little if any trouble would ensue from the apparent 
conflict of authority. The question then arises — if one 
officer is authorized to institute suit by law, may another 
have the same authority given him by joint resolution. The 
office of Attorney General was created by law in 1855, and 
the fourth section of the act is as follows : 

^ Such Attorney General shall prosecute, and defend all 
suits that may be instituted by, or against the State of 
Indiana, the prosecuting, or defending of which is not 
already provided for by law, whenever notified ten days of 
the pendency thereof by the Clerk of the Court in which 
such suits are pending, and whenever required by the Gov- 
enor, or a majority of the officers of State in writing, to be 



IN GENERAL TERM, 1872. 195 

8Ut« of ludiaoa v. Kimball. 

famished him within a reasonable time for the purposes 
therein contemplated.'^ 1 G. & H., page 118. 

Various officers are required by the law to execute official 
bonds payable to the State of Indiana. These bonds, in 
case of officers entrusted with moneys, are conditioned for 
the faithful discharge of their duties, and paying over, and 
accounting to the proper persons for all money that may 
come into their hands, etc. For a breach of the condition 
of these bonds, suit will be in favor of the party injured. If 
it is an individual that is injured by the loss of, or failure to 
account for his money, he must be the relator, and the suit 
must be in the name of the State, on his relation. 2 (t. & 
H., p. 41, sec 7. 

If the public revenues of the State, or any of the public 
funds are lost, or not accounted for, the whole people of the 
State are interested; they are injured, and an action lies, and 
in such case no relator is necessary. The State of Indiana 
in her sovereign capacity may sue. Fry v. The State ex rel 
Auditor of State^ 27 Ind., 348; Same v. Francis, 30 Ind., 92. 
Who, then, may put the machinery of our State in motion? 
Delay may render the remedy of no avail. What authority 
is necessary to be given by the State to an attorney, or 
attorneys to draw up a complaint, or commence the action, 
and prosecute it to a final determination ? How shall the 
State act? The powers of the State government are vested 
in three departments — the Liegislative, the Executive, inclu- 
ding the Administrative, and the Judicial Liegislative 
enactments have given the State of Indiana a right of 
action. Ck>urts have been organized by law, constituting the 
Judicial Department of the State governmenjt, and the Courts 
are open to try that right of action. 

The Legislature has by a law given the Auditor of State 
a right to commence the action. 

The same Legislature has also said, by a joint resolution, 
a recognized form of expressing the Legislative will, <^that 



196 SUPERIOR COURT REPORTS. 

State of Indiana v, KimbalL 

the Attorney General of the State, with the advice and con^ 
sent of the Governor, be, and he is hereby directed, and 
authorized to examine into, and collect, by suit, or otherwise, 
all claims, debts, and choses in action now due, and owing 
to the State of Indiana," etc. Acts of 1871, p. 70. 

The right which is by law vested in the Auditor of State 
to bring the action, is not a right coupledwith an interest^ 
so as to give him a vested right to the exclusion of any 
power to vest the same right in another. The joint resolu- 
tion simply gives the Attorney General authority to act as 
the attorney or person who informs, or relates to the Ck)urt 
the grievances of the State, and asks the Court to redress 
these wrongs which, it is alleged, the State has sustained. 

The case of is in many respects similar to the one 

before the Court, and will be found to support the views here 
taken. 

The joint resolution changes no law, suspends, or repeals 
no law, does not profess to create any new cause of action, 
or new device in the enforcement of a remedy ; and taken in 
connection with the sections heretofore cited from the act 
creating the office of Attorney General, I believe it confers 
on him the necessary authority to institute the suits. 

The second point made, that the breach assigned does not 
state facts sufficient to constitute a breach of the condition 
of the bond, is attended with more difficulty. 

From the statement heretofore made, it will be seen that 
the State seeks to recover of the defendants interest, profits, 
and income received by the defendant Kimball from the use 
of money of the plaintiff in his private business, and from 
loans, and deposits of the money of the State, and which he 
failed to account for, and pay over. It is not charged that 
there has been any failure on his part to account for, and pay 
over any portion of the principal of moneys that come to 
his hands as Treasurer of State. 

An examination of the statutes relating to the duties, and 




IN GENERAL TERM, 1872. 197 

State of Indiana v. Kimball. 

obligations of the Treasurer of State is necessary in the 
consideration of the question presented by this demurrer. 
In 1859 an act was passed to provide a treasury system for 
the State of Indiana — 1 G. & H., p. 645. Without citing 
the act in full, it will be necessary to notice the following 
provisions contained therein : 

Section one provides that the room occupied by the Treas- 
urer of State, together with the safes, vaults, etc., ^ shall con- 
stitute the treasury of the State of Indiana," and the 
Treasurer is required to use the same as the sole place 
for the deposit, and safe keeping of the moneys of the 
State," etc 

The third section specifies what moneys shall be paid into 
the State treasury. 

Section four requires the execution of a bond by the 
Treasurer, and sets out the conditions it shall contain. 

Section five prohibits the Treasurer from loaning^ using^ or 
depositing in any bank, or with any person any of the 
moneys of the State, and says the same shall be safely kept 
until directed to be paid out, or transferred by law, and the 
Treasurer is "expressly prohibited from receiving in any 
manner, for his own use any interest, premium, gratuity, 
bonus, or benefit whatever, by the disposition of, or arising 
out of any money, or property belonging to the State, or to 
any county, or to any fund of the State, or county, or of any 
loan obtained for the State, or for any county ; btU whutever 
is 80 received shall by him be fvUy accounted for. 

The sixth section requires every person making payments 
into the treasury to first furnish the Auditor of State with a 
description of the liability on account of which payment is 
to be made ; this is to be certified to the Treasurer, and the 
Auditor must also " make his draft in favor of the Treasurer 
upon the person making the payment, and the certificate, 
and draft must then be presented to the Treasurer, and he 
fiball receive the money ; and the Treasurer is expressly pro- 



198 SUPERIOR COURT REPORTS. 

State of Indiana v. Kimball. 

hibited from receiving any money into the treasury except it 
be thus paid upon draft. 

Section seven expressly prohibits the Treasurer ^from 
paying any money out of, or transferring any money from 
the treasury of the State, except upon the warrant of the 
Auditor of State," etc 

The act of 1859, it will be seen, not only creates a treasury 
room with safes^ and vaults, but requires the Treasurer of 
State to keep the money belonging to the treasury there, and 
forbids his loaning'^ ^f^ffj or depositing it in bank, or with 
any person. If, however, the Treasure does violate these 
provisions of the act, it prohibits his profiting from such 
violation, by further providing that if he does — ^ whatever is 
so received shall by him be fully €u:counied for^ 

This undoubtedly means that whatever profits he makes 
shall belong to the State, and be by him paid into the 
treasury; and there are two reasons why he should be 
required to do so, to-wit: 

Firsti Because the money upon which be has made profit 
belongs to the State, and the increase ought to follow the 
principal. This is what may be termed natural equity. 
The Treasurer is the mere agent of the State, and we know 
of no case where the agent is entitled to the interest, or gains 
on the capital of bis principal, unless by express stipulations. 

Secondy But the Legislature, by the clause requiring the 
Treasurer to account for what he received, had a further 
object in view ; and that was the safety of the funds in the 
Treasurer's hands. If he had to account for all he received, 
the Legislature undoubtedly thought a strong motive for 
violating the law would be removed, as the temptation of 
personal gain would be wanting. 

There is no penal, or criminal punishment provided in the 
act for its violation. 

The requiring the Treasurer to account for what profits he 
has received on the money belonging to the State is in no 



IN GENERAL TERM, 1872. 199 

State of IndUna v. Kimball. 

sense a penalty, for the plain reason that what he so received 
was not his — either in equity, or by the terms of the statute. 

As the object of the treasury act was to provide for. the 
safe keeping, and disbursing the public moneys, it may 
reasonably be concluded that the Legislature thought that 
the provisions of that act would accomplish that end. 

But the next Legislature, in 1861, enacted a law to crim- 
inally punish officers violating that part of the act of 1859 
prohibiting the loaning^ usivgj or^deposUing in bartky or unth 
other persons^ the public funds. 

The first section says that if any officer intrusted with 
money of the State, shall use the same by way of invest- 
ment, or shall loan, or deposit the same, '' he shall be deemed 
guilty of felony, and upon conviction thereof shall be im- 
prisoned in the State prison not less than one, or more than 
twenty-one years, and be fined not exceeding double the 
value of the money, etc." 

By the third section it is made a misdemeanor for the 
Treasurer to receive, or pay out any public money in any 
other manner than is prescribed by law, and on conviction 
thereof he '< shall be fined not less than fifty, nor more than 
five hundred dollars, and be imprisoned in the county prison 
not less than one year. 

Section five provides that if the Treasurer of State shall 
receive any fee, bonus, or perquisite of any kind, on account 
of any public money, and shall fail, or neglect to report, and 
pay the same into the Treasury, in the manner, and at the 
time required by law, he shall be deemed guilty of a misde- 
meanor, '^and upon conviction thereof, shall be fined in a sum 
equal to double the value of the amount so received, and be 
imprisoned in the county jail not less than one month, nor 
more than one year." 

It is easy to gather from these provisions of these statutes 
that it was the intention of the Legislature to insure the safe 
keeping of the money of the State in the hands of her offi- 




200 SUPERIOR COURT REPORT 



SUt« of Indiana v. Kimball. 



oers, by surroanding their duties, and obligations with express 
enactments to prevent the use of public funds for private 
gain, thereby exposing the funds to loss by improvident 
speculation. In placing a coi^struction upon these statutes, 
we must, if possible, carry out this intention. 

I shall now consider whether the two laws can stand 
together, or does the latter repeal any part of the former by 
implication, for there is no express repeal. 

Counsel have urged with great zeal, and ability that that 
clause of the fifth section of the act of 1859, which provides 
that ^ whatever is so received shall by him be fully accounted 
for," is by implication repealed by the provisions of the act 
of 1861, which says ^that if any officer intrusted with 
money of the State shall use the same by way of investment, 
or shall loan, or deposit the same, he shall be deemed guilty 
of felony, and upon conviction shall be imprisoned in 
the State prison not less than one year, nor more than twenty- 
one years, and be fined not exceeding double the value of 
the money." 

I conclude the Legislature of 1861 thought the act of 
1859 did not throw sufficient safe guards around the 
treasury, and hence the passage of the act of that year. 

Counsel for the State concede the rule to be, that when an 
act is penallpy or criminally punished, that a subsequent 
statute inflicting other, and different punishments for the same 
offence, repeals the former penalty by implication. 

I have already said that there was no penal punishment in 
the law of 1859, and if I am correct in this, then the rule 
above stated has no application to this case. Neither do we 
find any inconsistency, or conflict in a law that requires a 
party receiving funds not his own, to account for the same, 
and also criminally punishing him for receiving them. Many 
provisions of our criminal law not only punish criminally 
the felonious appropricUor of another's goods, but in law he 
is abo bound to restore the goods taken, with any increase 




IN GENERAL TERM, 1872. 201 

State of Indiana «. Kimball. 

thereof in bis hands, or damages for the detention thereof. 
The repeal of statutes by implication is not favored by the 
courts, and they will so hold only in cases where the conflict 
is such that the one, or the other must give way, or the 
intention of the law making power is apparent that such 
repeal was intended. Spencer v. Statej 5 Ind., 41; Blain v. 
Bailey y2S> Ind., 165; ZHrams on StatuteSy 1S4; Brown v. Leuns^ 
5 Hill, 221; StcUe ex rel Attorney General v. McCartyy at 
present term of this Court. 

I regard the act of 1861 as attempting to throw additional 
safeguards around the treasury, instead of attempting to 
repeal a part and substituting others. As I have already 
indicated, I see no reason why the provisions of pach act 
may not remain in full force. Indeed, the fifth section of the 
act of 1861 expressly requires the Treasurer, if he has 
received any fee, bonus, gratuity, or perquisites of any kind, 
to pay the same into the treasury of State, and on failure to 
do so, inflicts both fine and imprisonment 

But it is further urged that inasmuch as the room occu* 
pied by the Treasurer, with its safes, and vaults, is made the 
treasury of the State, and the sole place for keeping moneys 
belonging to the State, and inasmuch also as the Treasurer 
can only receive moneys into the treasury as prescribed in 
the sixth section of the act of 1859, that if the Treasurer 
should pay into the treasury any interest, or gains he may 
have made on use, or loan of the public funds, he would by 
so doing furnish evidence against himself for a criminal 
prosecution, and no man is bound to criminate himself. 

I concede that no man is bound to, or can he be required 
to criminate himself. 

This is not a suit for a mandate to compel Kimball to 
furnish a statement to the Auditor of the amount of interest, 
or profit he has received on the State's funds, and then to 
pay it into the treasury. It is now a question whether the 
State can obtain a judgment against him for the amount he 



202 SUPERIOR COURT REPORTa 



Bute of Indiana v. KimbalL 



he has so received, and failed to pay in. It is said that the 
suit can not be maintained because he could not account for 
it, and pay it into the treasury without furnishing evidence 
which could be used against him in a criminal prosecution, 
and it would be unjust to require him to answer in a ^uit 
when he could not voluntarily pay, and relieve himself. If 
there is any hardship in this position, Kimball has voluntarily 
placed himself in it I may here remark that every violates 
of the statute against larceny places himself in the same 
condition. The property he thus takes belongs to the owner, 
and it is the legal duty of the party to restore it, but we 
know of no law that would compel him voluntarily to do so. 
Nevertheless it will hardly be contended that the true owner 
could not maintain a suit for its recovery. 

The record in this case, if a judgment should be rendered 
against the defendants, could not be used against Kimball 
in a criminal prosecution. 

The same argument would prevent the Treasurer from 
restoring to the treasury the principal he may have improp- 
erly taken from the vaults of the treasury, and had not 
restored before his successor had taken possession of the 
office. He could not return it by any mode known to the 
law, without furnishing evidence against himself in a crimi- 
nal prosecution. 

If I am right that the last clause of section five, of the 
act of 1859, which requires the Treasurer to account for all 
the interest^ or gains he may make on funds of the State 
belonging to the treasury, is not repealed, then it follows that 
such interest, or gains belongs to the State, and it does not 
follow^ because a voluntary payment of the same into the 
treasury would furnish evidence which might be used against 
Kimball in a criminal prosecution, that the title of the State, 
to the interest, or gains made on its own money is forfeited 
and the right transferred to Kimball. 

I am, therefore, of opinion that the last clause of the fifth 



IN GENERAL TERM, 1872. 203 

State of ludiaoa v. Kimball. 

section, of the act of )859, is not repealed, but is in full 
force ; that the interest that the Treasurer has made on the 
funds belonging to the treasury is the property of the State, 
and the failure of the Treasurer to account for, and pay the 
sanie into the treasury for the reason that his so doing would 
furnish evidence against him which might be used in a 
criminal prosecution, ox for any other reason^ does not affect 
the State's right to the same, and the failure to pay the 
same is a breach of the conditions of his bond. 

It is said a demand was necessary before a suit was insti- 
tuted. If I am right that the interest, or gains sued for is 
the State's, it should have been placed in the treasury by 
Kimball. If he could not comply with a demand to account 
without furnishing evidence against himself in a criminal 
prosecution, then it would be an idle ceremony to make it 

If he had failed to restore the principal which he had 
iUegally taken from the .treasury, would it be contended that 
a demand was necessary? The condition of his bond is: 
that he will faiihfuUy discharge the duties of his office^ and 
also will, at the end of his term, or expiration of his office, 
pay, and deliver to his successor all moneys, securities, assets, 
and property of any kind belonging to the treasury of State, 
in his hands as Treasurer of State, or in the hands of any of 
his employees. 

I have shown that if the Treasurer loans, or deposits the 
funds belonging to the treasury of State, he has not faith- 
fully discharged the duties of his office ; and I have further 
endeavored to show that if he does loan, or deposit such 
funds, and receive interest therefor, it belongs to the State, 
and he is bound to pay the same into the treasury, and if he 
fails to do so he has not faithfully discharged the duties of 
his office in this respect If any interest came to his hands 
on account of the loan, or deposit of the funds belonging to 
the treasury of the State, such interest must necessarily come 
to his hands as Treasurer, because he is required to fiMy 



204 SUPERIOR COURT REPORTS. 

State of Indiana v. KimbalL 

account for the same, and if he failed to pay the same over 
to his successor, it is a farther breach of the conditions of 
his bond. It was his duty to have left it in the treasury, and 
turned it over to his successor. 

In such case no demand is necessary. A suit is a suffi- 
cient demand. 

For these reasons I have been constrained to differ with 
my brethren in the conclusion which they have come to, and 
think the demurrer at Special Term should have been over- 
ruled. 



NoTS. — The form of ** joint resolution*' is generally adopted when 
administntiTe, local, or temporarj laws are to be passed. 1 Houae •/., 1, 20, 
816; 1,32,67^. 

This form of Legislation is recognized in most of our constitutions, in 
which, and in the rules, and orders of our leg^slatiTC bodies, it is put upon 
tlie same footing, and made subject to the same regulations, with bills prop- 
erly so called. See Art 4, Sec. 18, Cone, Indiana, 

In Congress, a joint resolution is governed by the same rules as a bill. 
See WiUan*9 Digest Parliamentary Law, Sees. 1138, 1139, 1140, and notea.— 
{Bktortib. 



IN GENERAL TERM, 1872. 206 



State of Indiana v. McOartj et al. 



IN GENERAL TERM, 1872. 



The State of Indiana ex rel the Attorney General 

i;. Thomas B. McCarty et al. 

Appeal from Blaib, Judge. 

Auditor of State — duties of as custodian of the Sinking 

Fund — 
Bond of — liability of sureties on — 
Sinking ¥Mfii>— statutes construed — 
Embezzelmbnt Act — construed — 
Repeal by Implication — discussed — 
Public Officer — •presumption in favor of. 

The Oommissionera of the Sinking Fund were empowered by section eight 
of an act of the General Assembly, approved March 8, 1861, to tismpo- 
rarily deposit the income of the fund while accumulating for distribu- 
tion, or the purchase of certain bonds therein named, or for other pur- 
poaet <if UlWj in responsible banking institutions, payable on demand, 
with interest for the benefit of the ftind ; and the act proyided that all 
interest on such deposits should be carried into the fund, and become a 
part thereof. 

Said section was not repealed by the subsequent legislation of 1865, and 
1867, whereby the custody of the fund was tranferred to the Auditor of 
State, and the permanent character of the investment thereof wan 
changed. 

The Auditor of State succeeded to all (he rights ccnferred, and to the liabili- 
tiee imposed upon the Sinking Fund Commissioners by the act of 1861. 

Therefore, it was the duty of the Auditor of State, in case he loaned any 
portion of the fund, to do so in conformity with the statute of 1861 ; 
and if he loaned it otherwise, he and his sureties are liable in a suit on 
his oiBoial bond, for all interest received by him on such loans. 

The same liability exists for interest that might have been received by the 
fund if it had been deposited in conformity with the act of 1861, where 
the Auditor has used the money of the fund in an unauthoriied manner. 



206 SUPERIOR COURT REPORT& 

8ute of Isduma v. MeCarty et ml 

The word *MDCome," as oted in the eighth mcImii of the set of 1861^ 
inclnded both priocipal, aod interpst of the money of the SiakiBg Piud 
that came into the hands of the eommif^ionen, And anthonicd the 
temporary d^'poeit of both principal and interesL 

The Anditor of State will be presumed to hare done his duty as sodi oflker, 
until the continry is shown. 

By the emfoeztlemeot act of 1861, the oiBcers therein named are prohibited 
from using public funds in their hands, as their own, or in any manner 
not authorized by law ; fach moneys, therefore, coa'd not become the 
property of the officer holding them, bat reouiined the moneys of the 
particular fund on account of which they were peid to soch olSoer. 

The «rord ^ may, ' in a statute conferring aothority upon n public officer, 
will be consimed to mean **8bal)," when the public, or third persons 
have a claim, de jure, that the power shall be exercised. 

Hannoi QaypooL, and Taylor^ for State, appellant. 

W. M. McCart^j GordoHj Broume ^ Lamb^ for appellee. 

Newcom B, J. — The complaint alleges that the defendant 
McCarty, from March 11, 1867, to the — day of January, 
1869, was Auditor of State of the State of Indiana, and that 
on said first named day the defendants executed their bond 
to the State in the penal sum of 9100,000, conditioned that 
said McCarty would faithfully discharge the duties imposed 
upon, and required of him, in accordance with the provisions 
of the acts of the General Assembly of December 21, 1865, 
and March 11, 1867, and that he, said McCarty, would safely 
keep, and account for any moneys that should come into his 
hands under either of said acts, and faithfully perform his 
duties in the management of the Sinking Fund. 

The breaches assigned are: 

First. That McCarty received, and had under his control 
at divers times, and during his continuance in office large 
sums of money (set out in the complaint) belonging to the 
Sinking Fund; that he used the same in his own business, 
and loaned the same to bankers, and brokers, and other per- 
sons at large interest, and made, and received profits, interest, 
and income by the use, loan and deposit of the same, to 



IN GENERAL TERM, 1872. 207 

8Ut« of lodiana v. MeCarty •< mL 

the araoont of 9100,000, which he failed to accoant for, and 
pay over to his saccessor, hot converted the name to his own ase. 

Second. That he received said sams of money belonging 
to the Sinking Fund, and by the statute aforesaid it was his 
daty to deposit the same at the highest rates of interest that 
coald be obtained therefor, and keep the same distinct from 
other funds, and that he could during all said time have 
deposited the same with solvent banks at seven per cent 
interest per annum; that he refused to so deposit the same, 
but mixed said funds with his own individual money, and 
loaned, and deposited them in his own name, and received 
profits, interest, and income therefrom to the amount of 
9100,000, which he failed to pay over, etc., but has converted 
the same to his own use. 

Third. The third breach is substantially the same as the 
second, averring that it was the duty of the defendant 
McCarty to loan the sum to solvent banks, etc., and collect 
interest, and add the sum to the principal, and that he could 
have so loaned it at seven per cent, interest, but that he 
loaned and deposited it in his own name, and account, and 
received interest, and converted the same to his own use. 

Fourth. That McCarty received the money as before 
alleged; that he, and the other defendants^ his sureties, 
formed, and entered into a conspiracy and confederation to 
take, and use said fund, and loan the same in their own 
names for their use, etc., and that in pursuance thereof they 
did loan the same, and received interest, profits, and income 
therefor amounting to 9100,000, which sum, in pursuance of 
said conspiracy, with the assent^ and permission of McCarty, 
they converted to their own joint, and several use, etc. 

Demurrers to the complaint, and to each breach as^iigned, 
were sustained at Special Term, on the ground of a want of 
sufficient facts to sustahi the action, and final judgment was 
rendered on the demurrer in favor of the defendants, from 
which judgment the State appeals. 



208 SUPERIOR COURT REPORTS. 

State of Indiana v, McCarty et al. 

To arrive at a proper anderstanding of the qaestioiis 
involved, a brief review of the history of the Sinking Fand, 
and the statutes governing it^s accamalation and disposition 
becomes necessary. On the 28th of Janary, 1834, an act of 
the General Assembly, entitled '< An Act establishing a State 
Bank," took effect. This act provided for the creation of a 
bank in which the State was to own one-half, and individ- 
uals the other half of the capital stock. To enable the State 
to pay for her stock, and to assist citizen stockholders in pay- 
ing the second and third installments of theirs, it was 
provided by section 103 that; the State shoald negotiate a 
loan of $1,300,000 in specie, at a rate of interest not exceed- 
ing five per cent., redeemable after twenty years, and within 
thirty years, at the pleasure of the State, for which bonds 
were to be issued by the State. The amount of the State 
stock in the bank was fixed at $800,000, and the residue of 
the five per cent loan was re-loaned to private stockholders, 
and other parties on real estate mortgages, drawing annual 
interest, and the accruing interest was invested in the same 
way until March 1, 1859, when further mortgage loans 
ceased by virtue of the statute of that date providing for the 
distribution of the fund among the several counties. The 
manner of creating a sinking fund to repay the State's five 
per cent, loan, and to accumulate an educational fund was 
prescribed by sections 113, and 114 of the act of 1834. 
Those sections read as follows : 

Section 113. There shall be created a fund to be called 
the sinking fund, which shall consist of all unapplied bal- 
ances of the loan for its stock in the State Bank, or for the 
purpose of being loaned to stockholders to enable them to 
meet their stock installments in the bank, the semi-annual 
payments of interest on the State loans to stockholders, and 
the sums that shall be received in payment of said loans; 
the dividends that shall be declared, and paid by the State 
Bank on the State stock, and the dividends accruing on such 




IN GENERAL TERM, 1872. 309 

State of Indiana v. MoCartj ei al 

portions of the stock belonging to the other stockholders as 
shall have been paid for by the loan on the part of the State^ 
and which shall not have been repaid by such stockholders. 

Sec. 114. The principal and interest of said sinking fund 
shall be reserved and set apart for the purpose of liquidaiing 
and paying off the loan^ or loans, and the interest thereon thdit 
shall be negotiated on the part of the State for the payment 
of its stocks in the State Bank, and the second, and third 
installments on the shares of other stockholders in said bank, 
and shall not be expended for any ot/ier purpose^ until said 
loan, or loans, and the interest thereon, and incidental 
expenses shall have been fully paid, and after the payment 
of said loan, or loans, and the interest, and expenses, the 
residue of said fund shall be a permanent fund, and appro- 
priated to the cause of common school education, in such 
manner as the General Assembly shall hereafter direct" 

It is proper to remark here, that in addition to the sums, 
set apart for the sinking fund, a part of the surplus revenue 
of the United States, which was assigned to this State by 
virtue of the act of CTongress of June 23, 1836, was, under 
the provisions of an act of the General Assembly, approved 
February 6, 1837, used by the State to increase her stock in 
the State Bank, and on the expiration of the bank charter, 
and the division of the assets of the bank among its stock- 
holders, that portion of the surplus revenue became a part of 
the sinking fund. 

It is not important to cite the subsequent legislation of the 
State touching the Sinking Fund, previous to the adoption 
of the Constitution of 1851. 

Article VIII, section 2 of that instrument defines what 
shall constitute the common school fund, and ampng other 
items designates : 

^ The surplus revenue fund." ^^ The bank tax fund, and 
the fund arising from the 114th section of the charter of the 
State Bank of Indiana.*' 
6 



^ 



210 SUPERIOR COURT REPORTS. 

Bute of ladiftDa v, McCartj el ai. 

Sections 3, 4 and 7 of said Article make further provis- 
ions concerning the safety, perpetuity and income of the 
school fund, namely : 

^ Sec. 3. The principal of the CToramon School Fund 
shall remain a perpetual fund, which may be increased but 
shall never be diminished ; and the income thereof shall be 
inviolably appropriated to t/ie support of common schools^ and 
to no other purpose whatever. ^^ 

^< Sec 4. The General Assembly shall invest, in some safe 
and profitable manner, all such portions of the school fund 
as have not heretofore been entrusted to the several counties ; 
and shall make provision by law for the distribution among 
the several counties of the interest thereof. 

Sec. 7. All trust funds held by the State shall remain 
inviolate, and be faithfully and exclusively applied to the 
purposes for which the trust was created." 

No provision was made by law for applying any of the in- 
come of the Sinking Fund to the use of common schools, until 
the passage of the act of March 1, 1859. 1 G. & H., Stat 574. 
This act directed the Sinking Fund Commissioners to dis- 
tribute the fund among the several counties in proportion to 
the number of children in each county listed for the purpose 
of common school education, and when it should be so dis- 
tributed it was required to be loaned by the respective county 
auditors and treasurers upon real estate security, as other 
school funds were loaned, and it was provided that the inter- 
est accruing Irom such loans should be used for the purpose 
of school education. 

The 8th section required the Commissioners to keep back 
in their hands a sufficient amount of mortgages and funds 
to redeem the bank bonds (the bonds issued under the act 
of 1834), which should not be distributed, but should be 
held as security for the payment of said bonds. 

Sec. 5 empowered the Commissioners to purchase the 
bank bonds, when they could do so on reasonable terms. 



IN GENERAL TERM, 1872. 211 

State of Indiana v. MoCarty el al. 

We quote the 6th section entire : 

^Sec 6. After the year 1866, when the last of said bank 
bonds become dae and payable according to the condition 
thereof, the said Commissioners shall immediately thereafter 
pay off and discharge the residue of said bank bonds, if any 
there be left, and as soon thereafter as possible collect all 
debts and convert all the property of said sinking fund into 
money, and distribute the same as fast as the same may 
come in, as required by the provisions of this act" 

By the terms of the act approved February 22, 1861, com- 
monly known as the embezzlement act, 2 6. & H., 456, it 
was made a felony for any officer or other person charged, 
or in any manner entrusted with any money, funds, securi- 
ties or other property belonging to this State, or belonging 
to any fund under control of this State, or under control of 
any State officer, to convert to his own use, or to the use of 
any other person or persons, corporation or corporations, in 
any manner whatever contrary to law; or to use by way of 
investment in any kind of property, or to loan, with or with- 
out interest, or to deposit with any person or persons, cor^ 
poration or corporations, contrary to law ; or to exchange for 
other funds, except as allowed by law, any portion of such 
money, funds, securities or other property. This statute 
clearly embraced the Sinking Fund Commissioners and the 
fund under their control, as well as the Treasurer and other 
State officers having public and trust money confided to 
their charge, and unless excepted from its prohibitions and pen- 
alties, the Commissioners would be compelled to let the 
money realized from the payment of principal and interest 
from the outstanding mortgages belonging to the Sinking 
Fund, and also the income of other securities embraced in 
said fund, to remain idle and unproductive, until such time 
as enough should accumulate to justify a distribution among 
the several counties of the State, except so far as the same 
could be used up in the purchase of bank bonds. It was 



212 SUPERIOR COURT REPORTS. 

State of Indiana v. McGarty ei al. 

probably to meet this diiSScalty that the 8th section of the 
act of March 8, 1861, [3d Statutes, Davis' Sapplement, 483,] 
was prepared. That section reads as follows : 

^ Section 8. The Commissioners shall be authorized ta 
exchange, or convert the Indiana five per cent stocks belong- 
ing to the fond into bank bonds, as the sanre can be procured, 
or purchased, on the best terms practicable, and while the 
income of the fund is accumulating for distribution, or for 
purchasing bank bonds, or other purposes of lawj they shall 
have power to deposit the same in responsible banking insti- 
tutions, with satisfactory security to the amount thereof at 
any time, at interest, for the benefit of the fund, but payable 
on demand. All interest that shall accrue on any deposit of 
sinking fund shall be carried to the fund, and become a part 
thereof." 

The next legislation bearing on the questions arising in 
this suit was the act of December 20, 1865, 3 Davb Statutes, 
490. This statute, it is insisted by the defendants, repealed 
the 8th section of the act of March, 8j 1861, and firom that 
postulate it is argued that there was no law in force during 
McCarty's term of office, authorizing him to make temporary 
deposits; and chat being the case, the State can not call upon 
him, and bis sureties to refund any interest he may have 
realized from the loan, deposit, or use of the sinking fund 
in its hands, contrary to, or without authority of law. 

That act directed the Commissioners of the Sinking Fund 
to invest the money then on hand, and what might be there- 
after paid in of said fund, in Indiana State bonds, or stocks, 
if the same could be purchased at satisfactory rates, other- 
wise in United States seven-thirty bonds, the latter to be 
re-invested in the Indiana securities above named, whenever 
the same could be purchased at fair rntes.. 

Provision was made for the surrender of the State bonds, 
or stocks, which might be so purchased, and for the execu- 
tion, and delivery to the Sinking Fund Commissioners of 




IN GENERAL TERM, 1872. 213 

State of Indiana v, McCarty et al, 

the non-negotiable bonds of the State for the same amount 
bearing six per cent interest, said interest to be distributed 
among the several counties at the same time, and in the 
same manner as other school funds were distributed. 

On Decen>ber 21, 1865, only one day after the taking effect 
of the statute giving the Commissioners a discretion to 
invest the money of the Sinking Fund in State, or United 
States securities, another act was approved, and went into 
force, known as the State Debt Sinking Fund Act; 3 Davis 
Stat, 499. This made the Sinking Fund proper a part of 
the State Debt Sinking Fund, and directed the money then 
on hand, and to accrue, to be invested in the two and one- 
half^ and five per cent stocks of the State, the same repre- 
senting what was termed the foreign, or internal improve- 
ment debt of the State. 

The seventh section of this statute provided for the abol- 
ishment of the Board of Commissioners of the Sinking 
Fund, and the transfer of their duties to the Auditor of 
State, as follows : 

Section 7. The Board of Sinking Fund Commissioners, 
and all the oiSSces connected therewith, are hereby abolished 
from, and after the 20th day of January, 1867, and all the 
property of whatever kind, both real, and personal, belonging 
to said fund, is hereby directed to be sold on such terms, in 
such manner, and at such time as said Sinking Fund Com- 
missioners, during their continuance in office, and thereafter 
as the Governor, Auditor, Secretary, and Treasurer of State 
shall deem for the best interest of said fund, and the moneys 
arising therefrom shall be invested in said stocks of the State 
as in this act provided; and after the 20th day of January, 
1867, the Board of Sinking Fund Commissioners shall sur- 
render to the Auditor of State all the books, and papers, 
stocks, bonds, mortgages, moneys, rights, credits, and effects 
belonging to said fund, who shall provide a suitable place for 
their safe-keeping. From, and after the last mentioned date 



214 SUPERIOR COURT REPORTS. 

Sute of Indiana v. McCartj et ci. 

it shall be the duty of the Governor, Auditor, Secretary, and 
Treasurer of State to invest all the moneys arising from 
mortgaged premises, or other sources belonging to said fund, 
as fast as they are due, and collected, in the said five, and 
two and one-half per cent, stocks of the State.*^ 

The assets of the Sinking Fund having passed to the 
Auditor of State by virtue of the law of December 21, 1865, 
the General Assembly passed another act more fully defining 
his duties, and responsibilitiea, which was approved March 
11, 1867—3 Davis Stat, 487. We copy so much of the first 
section as has any bearing on this case : 

<< Section 1. That for the purpose of enabling the Auditor 
of State to discharge the duties, and obligations of his office 
in relation to the custody, and managen^nt of the notes^ 
bonds, and mortgages heretofore held, and managed by the 
Board of Commissioners of the Sinking Fund, arising 
directly out of loans made by them, all laws, and parts of 
laws heretofore adopted, and in force on the 20th day of 
January, 1867, applicable to the custody, and management 
of the said loans, and the notes, bonds, and mortgages, are 
hereby declared to be in force, the provisions of any law to 
the contrary notwithstanding. And the said Auditor is here- 
by clothed with all the power, and subjected to all the duties 
touching the said loans, and the securities therefor, which, by 
any law in force on the 20th day of January^ 1867, were 
vested in, or imposed upon the said Board of Commissioners 
of the Sinking Fund, or any officer thereof." 

The fifth section required the Auditor to give bond in the 
sum of $100,000, with sufficient sureties, conditioned for the 
faithful performance of his duties under this law, and under 
the law of December 21, 1865, and for the safe keeping, and 
accounting for any moneys that had, or might thereafter 
come into his hands, under either of said acts ; and, generally, 
for the faithful performance of all duties growing out of the 
management of the property, or business of the said Sinking 




IN GENERAL TERM, 1872. 215 

State of Indiana «. McCarty et al. 

Fund. The bond in sait was execated in conformity with 
this section. 

The sixth section provided that whenever the amount of 
money belonging to the Sinking Fund, in the hands of the 
Auditor of State, should reach $4,000, or more, he should 
forthwith notify the Secretary, and Treasurer of State of the 
amount of said fund in his hands, and the Auditor, Secre- 
tary, and Treasurer were thereupon to invest the funds then 
in the hands of the Auditor, or under his control, in the five, 
and two and one-half per cent, stocks of the State, by pur- 
chasing the same on the lowest, and best terms they could 
be had for in the market 

The Auditor was required to keep a list of the stock so 
purchased, with the price paid therefor, and to report to the 
Governor at least once in thriee months, and to the General 
Assembly at each session, a full account of his transac- 
tions, etc. 

Having thus noticed all the statutory, and constitutional 
provisions supposed to bear upon the case under considera- 
tion, we proceed to an examination of the questions arising 
therein, and discussed by counsel, namely: 

First. Was the 8th section of the act of March -8, 1861, 
repealed by the subsequent legislation of 1865-7 ? 

Second. If not so repealed, is that section constitutional? 

Third, Does Article viii of the Constitution make inter- 
est received by the legal custodian of the Sinking Fund, on 
loans made without authority of law, or contrary to law, a 
part of that fund, and if so, are McCarty, and his sureties 
liable therefore in a suit upon his bond ? 

Fourth. If the defendants are not liable on the bond, is 
McCarty liable on common equity principles as a trustee, 
and can such liability be enforced in this suit? 

It has been argued with much earnestness by counsel for 
the defendants, that the statutes of December 20, and 21, 
1865, necessarily repealed section 8, of the act of March 8, 



216 SUPERIOR COURT REPORTS. 

State of Indiana v. HcCarty et aL 

1861, authorizing temporary deposits of the income of the 
Sinking Fund while accumulating for the purpose of distri- 
bution, or the purchase of bank bonds. Undoubtedly the 
legislation of 18(>5 did repeal so much of the act of March 
1, 1859, as provided for a distribution of the Sinking Fund 
among the counties, and also that provision authorizing the 
purchase of bank bonds, but the question remains, did it 
repeal that part of said 8th section of the act of 1861, which 
authorized such temporary deposits while the fund might be 
accumulating ^ for other purposes of law," or in other words, 
for other lawful purposes ? That section was not expressly 
repealed by either of the acts of 1865, nor by the act of 1867. 
If repealed at all, the repeal was by implication, necessarily 
resulting from an incompatibility between the former, and 
the latter statutes. But the law does not favor a repeal by 
implication, and the rule of construction is, that when two 
statutes are seemingly repugnant, they must, if possible, be 
so construed that the latter may not o|>erate as a repeal of 
the former. Spencer v. The State^ 5 Ind., 41; Blain v. 
Bailey, 25 Ind., 165 ; Bowen v. Lease, 5 Hill, 221 ; Wallace 
v. Basseity 41 Bard., 92 ; Dwarris on Statutes, 154-5. 

<^ It has also been held, in pursuance of this maxim," says 
the Supreme Court, in Elaine v. Bailey, supra,, '^ that an act 
is not repealed by implication where the Legislature had no 
intention to repeal it" 

We are unable to perceive any legislative intention in the 
statutes of 1865-7 to make the Sinking Fund unproductive 
for any period of time, however brief. The purpose was to 
permanently invest it in a safe and profitable security, as 
rapidly as the same could be done, but no prohibition appears 
in either of the acts against temporary deposits of the fund, 
as authorized by the statute of 1861, while awaiting oppor^ 
tunity to make investments in State stocks. 

The uniform current of legislation on this subject shows 
a purpose to make the fund at all times productive. Its 




IN GENERAL TERM, 1872. 217 

State of Indiana v, McCarty et al, 

founders declared this purpose in the 114th section of the 
bank charter; the Constitution, in the sections cited, pro- 
claims the same purpose, as do also the legislative acts of 
1859, and subsequent acts. 

Recurring again to the act of 1861, the conclusion seems 
to us irresistible that the Legislature contemplated the 
probability of subsequent legislation by which the invest- 
ment of the undistributed portion of the Sinking Fund 
might be changed, and that in the event of such change the 
accumulations might be unproductive for a time, unless 
authority was given to temporarily deposit them at interest 
while awaiting opportunities for permanent investment. In 
view of such possible change of the law, the words, ''or 
other purposes of law" were, in our opinion, introduced into 
that statute ; for while the statute of 1 859 remained in force 
there could be no other '' purpose " of accumulation than for 
distribution among the counties, or the purchase of bank 
bonds. 

While, therefore, there remained a " purpose of law " for 
the accumulation of the Sinking Fund in the hands of its 
legal custodian, so long that clause of section 8 of the act of 
1861 was operative, and continued in force. It is urged, 
however, that the statutes of 1865 did not contemplate any 
accumulation of the fund in the hands of the Commissioners, 
or Auditor of State, consequently there could be no lawful 
accumulation, and therefore nothing was left to which the 
statute of 1861 could attach. 

We are not inclined to place such a construction on this 
statute, especially as the results claimed for it would work 
injustice to public interests by transferring to the Auditor of 
State money that properly belongs to the school fund. 

In 1865-7, as in 1859-61, that portion of the Sinking 
Fund available for distribution, or investment in bonds and 
stocks, consisted of the receipts of interest on mortgage 
loans, generally small in amount, from payments in full, or 



^ 



218 SUPERIOR COURT REPORTa 

SUto of Indiana v. McCarty et mk 

in part, of the priDcipal of mortgage loans, and from interest 
on State bonds and stocks belonging to the fund. These 
payments were made at irregular intervals, except interest on 
State securities ; were often in amounts too small to invest 
in the manner required, and must necessarily be held until a 
sum accumulated at least equal to the smallest denomina« 
tion of bonds authorized to be purchased. Furthermore, the 
Auditor had to find some one who had bonds to sell before 
he could invest the money in them. True, during the one 
day the law was in force authorizing the purchase of United 
States seven-thirties, it might have been possible to instantly 
invest the money on hand in those securities, but we can 
not say as a matter of law that it was. And when we con- 
sider that while the Auditor was required to invest the funds 
in State stocks, sums ranging from $61,000 to $259,000 
remained in his hands uninvested, and that the complaint 
does not charge him with failing, or refusing to purchase 
State stocks when obtainable, we may fairly presume that 
there was an inevitable accumulation in his hands. Indeed, 
in the absence of an averment to the contrary, we must pre- 
sume that the Auditor did his duty under the law, so far as 
it was in his power, and that he could not find employment 
for all the money that came to his hands in the purchase of 
State stocks. Mercer et al v. Doe^ 6 Ind., 80; Evans v. 
Ashby, 22 Ind., 15 ; Culbertson v. MWiollin, Id., 362 ; 2 PhU- 
lips on Evidence, 604. 

The purpose of the statutes of 1865, and 1867 was, that 
the remainder of the Sinking Fund should he invested in the 
stocks of the State. That purpose was not changed by the 
circumstance that the Auditor might not be able to purchase 
stocks as fast as he received money from the assets of the 
fund, nor could it be changed by his willful failure when 
opportunity offered to purchase stocks. The lawful purpose, 
or the " purpose of law," in the words of the statute of 1861, 
remained, and could be changed only by subsequent legis- 



IN GENERAL TERM, 1872. 219 

State of Indiana t . McCarty €t al. 

lation. Therefore, while the money of the fund accnmulated 
in the hands of the Auditor, it so accumulated for the pur- 
pose declared by law, and while so accumulating he was 
empowered by the act of March 8, 1S61, to temporarily 
deposit it at interest for the benefit of the fund. 

The defendants further insist that section 8 of the act of 
March 8, 1861, is unconstitutional in this, that it only 
authorizes a deposit at interest of the inconhe of the fund, 
and that it carries the interest of such income to the principal 
of the fund, and makes it a part thereof, while Sec. 3, Art. 
Till, of the Constitution, appropriates such income to the 
support of common schools, and to no other purpose what- 
ever. 

The word ^^ income," primarily means the {Kofit arising 
from an invested fund, or a business, or profession, and the 
like, and the rule is, that words used in a statute are to be 
construed in their ordinary, and usual sense, unless it is 
apparent that the Legislature used them in a different sense. 
Dwarris, 199, 203. 

The acts of 1859, and 1861 are to be construed in pari 
materioj as though they were one act We must, therefore^ 
look to the act of 1859 to determine the sense in which the 
word ^ income " was used in section 8 of the act of 1861. 
The latter section provides that while the income of the fund 
is accumulating for distribution, or for purchasing bank 
bonds, it may be deposited, etc. Those two objects covered 
the entire fund, principal, and interest. All of it, except 
enough to redeem, or purchase the outstanding bank bonds^ 
was required by the act of 1859 to be distributed. All 
money received in discbarge of the principal of mortgages, 
as well as for interest, was to be held for distribution, or the 
purchase of bonds. The word '' income," as used in the act 
of 1861, should receive a definition as broad as the subject 
matter to which it was applied, that being the entire money 
receipts from the securities in which the fund was then 



220 SUPERIOR COURT REPORTa 

State of Indiana v. McCartj «< aL 

employed. We hold, therefore, that this word in the act of 
1859 has the same meaning as the words avails, moneys, or 
receipts, and must be construed to embrace ail receipts of 
money, whether of principal, or interest, from the mortgages, 
or other securities in which the fund had been previously 
invested. 

As to that part of section 8 of the act of 1861, that 
requires interest received on deposits to be carried into the 
fund, and become a part thereof, we remark that it is an 
independent clause, which migbt.be stricken out without 
invalidating the residue of the section. Therefore, if uncon- 
stitutional, the preceding part of the section may stand* 
Cooley's Constitutional Limitations, 177-181; Bankof Ham^ 
ilian v. Dudley^ 2 Peters, 526. 

Furthermore, the circumstanoe that the statute may have 
directed the interest of the Sinking Fund to be employed in 
a manner contrary to the Constitution, did not transfer the 
ownership of such interest to the officer having control of 
the fund ; the Constitution had set it apart for the support of 
oommon schools, and prohibited its diversion to any other 
object; it was the duty, therefore, of the Sinking Fund Com- 
missioners, and afterwards of the Auditor of State, their 
successor in the trust, to account for such interest, in order 
that by the proper officers, or by subsequent legislation, if 
such were needed, it could be applied to its constitutional 
purpose. There could be no difficulty in sepsurating the 
interest from the principal fund, and giving to each its proper 
direction, and we must presume that the Legislature would 
perform its constitutional duty by providing for the proper 
distribution of such interest 

It is further urged by the defendants that inasmuch as 
McCarty was liable absolutely for the safety of the fund 
committed to his charge, he had the right to determine how 
it should be kept, or employed while under his control, and 
that the money received by him waa, while in bis official 



IN GENERAL TERM, 1872. 221 

State of iDdiana v. MeCartj et aL 

charge, his money, and all thai the State could demand of 
him was the return of an equal amount on the expiration of 
his term of office. 

In support of this view, we have been referred to the cases 
of Halbert et al v. The State, VIZ Ind., 125 ; Marbeck v. The 
State, 28 Ind., 86 ; Rock et al v. Stinger, 34 Ind.; Hancock v. 
Hazzard et al, 12 Gushing, 112 ; United States v. Prescott, 3 
How., 578, and other authorities. 

The point decided in Halbert v. The State, was that a 
public officer who is required to give bond for the proper 
payment of money that may come into his hands as such 
officer, is not a mere bailee of the money, exonorated by the 
exercise of ordinary care and diligence, but his liability is 
fixed by his bond, and the fact that the money was stolen 
from him without his fault, does not release him from bis 
obligation to make such payment. The other cases cited 
decide the same principle, and some of them hold that pub- 
lic money received by such officer, in virtue of his office, 
becomes his money, to the extent at least that the body 
politic on whose behalf he receives it can not follow it, or 
securities given therefor by a person to whom the officer has 
loaned it, or improperly paid it out, .but that the remedy must 
be sought on the officer's bond. 

But, in our judgment, these authorities are not applicable 
to the case under consideration. The embezzlement act of 
1861 placed the stamp of individuality on all public or trust 
funds received by the Auditor of State, and other officers 
therein named, and expressly prohibited them from using 
such funds as their own, or in any manner not authorized by 
law ; and we think that as to the Sinking Fund the Consti- 
tution is to the same effect. 

If we are correct in our conclusion that the act of March 
8, 1861, authorized the Auditor to deposit in bank the receipts 
firom the Sinking Fund while awaiting opportunity to per- 
manently invest them in State stocks, it follows, as a legal 



222 SUPERIOR COURT REPORTS 

SUto of IndUna v. McCarty d mL 

consequence, that if the fund aocoroalated to sach an extent 
as to render it necessary or advisable to place the same at 
interest, it was his doty to do so in the manner aothorized 
by law, and that he could not by loaning, or depositing the 
fund in an anaathofixed manner, relieve himself from his 
daty to accoont for interest received. 

The permissive word ** may '' is ased in the statate, bat 
the rale of constraction is that the word may will be oon- 
straed to be synonymous with shalLt where pablic ioteresta 
and rights are concerned, afld where the pablic, or third per- 
sons have a claim de jure that the power shall be exercised. 
Nave V. Navej 7 Ind^ 122 ; Bansemer et alv. Mace el o^ 18 
Id^ 27; Newburgk Turnpike v. MiUer, 5 Johns^ ch. 101. 
The people of the State, by virtue of the Ck>n8titation, and 
of the statate, had a right to claim that the money in the 
Auditor's hands, if placed at interest temporarily while 
awaiting investment, should be so placed as to secure to the 
school fund the interest that might be realixed, and if the 
Auditor did, as charged in the complaint, otherwise use it, 
and receive interest from such use, when he ooald have 
deposited it in bank at interest, to the credit of the fund, he 
is accountable for interest so received. And we are of 
opinion further, that the Ck)n8titution, Sec. 3, Art viii, by its 
own inherent force, makes all interest received from the 
Sinking Fund a part of the School Fund; that by virtue of 
that section itself it was made the duty of McCarty to 
account for all interest he received ; that as soon as it came 
to his hands it became a part of the School Fund, and if he 
has failed to pay the same to his successor, he and his sure- 
ties are liable in this suit on his official bond. If he used 
the money of the Sinking Fund in his own business, or in 
speculative operations, the defendants should be held liable 
on their bond for such interest as would have accrued in case 
the money had been deposited according to law, bat not for 
the profits of any business in which McCarty may have 



IN GENERAL TERM, 1872. 223 

State of Indiana v. McCarty et oL 

employed the funds, for no such liability could have been in 
the contemplation of the sureties when they signed the bond, 
nor does it seem to be contemplated in the law under which 
the bond was executed. 

The conclusions we have reached on the propositions 
above discussed, render it unnecessary that we shall examine 
the question whether McCarty can be held liable as a trus- 
tee merely, for interest, or profits received from the Sinking 
Fund, and we express no opinion on that subject 

At Special Term the defendants presented by demurrer 
the question as to the legal capacity of the Attorney General 
to institute, and prosecute this action. It is averred in the 
complaint that the suit is brought by the consent of the 
Governor; but it is insisted by the defense that the action 
could be brought only by the Auditor of State 1 G. & H., 
119, sec 2, or by the Attorney General when required by the 
Governor, or a majority of the officers of State. 1 G. & IL, 
118, sec. 4. The demurrer assigning that cause was over- 
ruled, the Judge at Special Term holding that the Attorney 
Greneral, with the advice and consent of the Governor, was 
authorized by the joint resolution passed at the session of 
1871 — acts of 1871, p. 70 — to commence, and prosecute the 
action in the name of the State. We concur unanimously 
in that ruling, and content ourselves with referring to the 
published opinion of Judge Blair on that part of the case, 
without a fresh discussion of the question here. 

The judgment is reversed for the error at Special Term in 
sustaining the demurrer of the defendants to the complaint 
on the ground that it, and the several breaches did not set 
forth facts sufficient, etc., and the case is remanded for 
further proceedings in conformity with this opinion. 

Blair, J. — I have been unable to reach the same conclu- 
sions with my brother Judges, or to change in any essential 
particular the opinion rendered at Special Term, and I have 



y 



224 SUPERIOR COURT REPORTS. 

State of Indiana v. McCartj et oL 

thought it right to give my views on one or two points 
involved in the case. 

Prior to the 20th day of January, 1867, the Sinking Fund 
was under the control, and management of five commission* 
ers, elected by the Legislature, known, and designated as the 
Sinking Fund Commissioners. Their powers, and duties 
were defined by law. The manner of loaning, and investing 
the fund for purposes of accumulation, was controlled by 
express statutory enactments; and it is true that by the 
eighth section of the act of 1861, 3 Stat, 483, the Commis- 
missioners were anthorized to convert the Indiana five per 
cent stocks belonging to the fund into bank bonds, as the 
same can be purchased on the best terms practicable ; ^^ and 
while the income of the fund is accumulating for distribu- 
tion, or for purchasing bank bonds, or other purposes of law, 
they shall have power to deposit the same in responsible 
banking institutions, with satisfactory security to the amount 
thereof, at any time, at interest, for the benefit of the fund, 
but payable on demand.*' 

The main question in this case depends upon the above 
provision. If this section is still in force, and applies to the 
Auditor of State in his management of the fund, there are 
forcible reasons for holding him liable on his official bond for 
interest acquired on deposits, and not paid over. The sev- 
enth section of the act of December 21, 1865 — 3 Stat, 
Davis' Sup., p. 502 — abolished the Board of Sinking Fund 
Commissioners from, and after the 20th day of January, 
1867, and at that date, all books, papers, stocks, bonds, mort- 
gages, moneys, rights, credits, and effects belonging to the 
fund were to be surrendered to the Auditor of State, "who 
shall provide a suitable place for their safe keeping." By the 
further provisions of the same section it was made the duty 
of the Governor, Auditor, and Treasurer of State to invest 
the moneys belonging to the fund as fast as they should be 
collected, in the five, and two and one-half per cent stock of 
the State. 



IN GENERAL TERM, 1872. 225 

State of Indiana v. McCarty ei al. 

No bond was by this act required of the Auditor of State, 
touching his duties relative to the custody and management 
of the Sinking Fund that was to come into his hands, and 
it seems to have been conceived by the Legislature that the 
duties of the Auditor in relation to the fund were not 
defined, and that the laws applicable to the management of 
the fund, loans, etc., in the hands of the Board of Sinking 
Fund Commissioners did not apply to the Auditor of State, 
and that he might have some difficulty in collecting out- 
standing loans, and indebtedness to the fund, and to remedy 
this defect the act of March 11, 1867, was passed, (3 Stat, 
Davis' Sup^ p. 487,) continuing in force ''all laws heretofore 
adopted, and in force on the 20th day of January, 1867, 
applicable to the custody, and management of the said loans, 
and the said notes^" No laws governing the Board of Sink- 
ing Fund Commissioners were continued in force by express 
enactment, except those relating to the loans, and notes, and 
if necessary that th'^re should be an express statute continu- 
ing these laws in force after the mortgages, and not^s were 
transferred to the possession, and control of the Auditor of 
State, was it not equally necessary that the law relating to 
the management of the moneys should also be continued in 
force by express provisions of the statute ? It seems to me 
that the act of 1867 recognizes the true rule of construction, 
and is an express recognition on the part of the Legislature, 
that the laws in force on the 20th of January, 1867, and 
before that time, governing, and defining the powers of the 
Board of Sinking Fund Commissioners, did not apply to the 
Auditor of State, and could not be made to apply to him 
except by express legislative enactment 

It might well be, that the Legislature would be willing to 
trust a judicious board of five commissioners with power to 
determine the ^ responsibUUy^^ of a banking institution, and 
the ^^ security ^^ given by the bank, when they would be 
unwilling to vest the same power in the hands of a single 
7 



226 SUPERIOR COURT REPORTS. 

Suu of Indiana v. MoCartj et al. 

officer. The deposit of the money in a banking eorporatioii 
is an important matter, requiring the exercise of sound dis- 
cretion, and judgment to see that the fond is not endangered, 
and it seems to me a dangerous principle to sanction the 
transfer of such power from one officer, or class of officers to 
another officer, except by statutory enactment If the act of 
1865 had said that the Auditor shall be vested with all the 
power, authority, etc., then vested by law in the Board of 
Sinking Fund Commissioners, there could have been no 
doubt but that this eighth section of the act of 1861 would 
be held to be in force ; but in the absence of any provision 
of the kind, I believe the Auditor had no authority given 
him to deposit the money in banking institutions, but that it 
was his duty, according to the provisions of the act of 1865, 
to keep the money under his immediate control, and custody, 
or, in the language of the act, ^ to provide a suitable place 
for their safe keeping." I do not believe that the power was 
intended to be given him by the Legislature to deposit the 
funds in banks, thereby releasing him, if the deposit was 
made in good faith, and in the exercise of reasonable care, 
from the absolute liability that would otherwise attach to 
him, as an officer, of keeping the fund secure from loss iu 
any event Under the act of March 11, 1867, the bond in 
suit was required to be given by the Auditor, and it is con- 
ditioned as provided in the act. This bond, is the contract 
made by the officer and his sureties with the State. If the 
Auditor is liable on the bond, his sureties arc also liable. It 
is unnecessary to cite authorities to show that the liability of 
sureties can not be extended by implication beyond the 
terms and condition of their bond. It is the full measure of 
their liability. It does not follow that because the State may 
have a strong equity on her side, as against the Auditor, or 
because she may have a right to call upon him in his per- 
sonal capacity to respond to her demands, that he, and his 
sureties are liable on his official bond. The question of 



IN GENERAL TERM, 1872. 227 

State of Indiana v. IfcCarty et tU. 

personal liability of the Auditor is not presented by the 
pleadings in the case, and hence is not proper to be consid- 
ered here, for the suit is upon the official bond, and there 
must be an absolute breach of the conditions of the bond to 
sustain a recovery against the defendants. While no dry, or 
technical construction can defeat any rights which the plain* 
tiff may have, there must still be a distinct breach of the 
contract to render the Auditor, and his sureties liable. 

The language of the fifth section of the act of March 11, 
1867, prescribed the conditions of the bond in suit, and the 
bond is conditioned as required by the act, ^' for the faithful 
performance of his duties under this law," (that is, under the 
act of 1867), ^ and under the law passed at the extra session 
in 1865," (that is, the act of 1865 which abolished the Board 
of Sinking Fund Commissioners, before cited) * * 

* * * " and generally for the performance of all 

duties growing out of the administration, or management of 
the property, or business of the Sinking Fund." Now, it is 
a rule of construction, that general words, or terms in a 
statute refer to, and are controlled by specific terms, hence 
the latter general clause in the statute, and in the conditions 
of the bond, I take it, refer to the general duties of the 
Auditor under the acts specifically referred to. But as I 
regard the eighth section of the act of 1861 as inoperative, 
and can not be applied to the Auditor, a rigid application of 
the above rule is unnecessary for the purpose of the present 
case. 

I have also been unable to £nd that the liability of the 
defendants can be in any way increased by reason of the 
constitutional provisions contained in the third, and fourth 
sections of Article viii, of the Constitution. Section three 
prohibits the principal of the fund from being diminished, 
and says the increase of the fund shall be inviolably appro- 
priated to the support of common schools. Section four 
makes it the express duty of the Legislature to invest the 



228 SUPERIOR COURT EEPORTa 

Gilletpie et al v. SpUhn. 

fund in some safe and profitable manner. This mast, of 
course, be done in accordance with some law enacted by the 
Legislature, defining the safe, and profitable manner of 
investment 

If the Legislature has neglected to pass ^he necessary 
laws to keep the money invested as required by the Consti- 
tution, but has suffered it to accnmulate in large amounts, 
and lie idle in the hands of the Auditor of State, he, as an 
officer being liable for its safe keeping in any event, even if 
it should be stolen from him, I do not see that the Constitu- 
tion enlarges his liability for interest received on deposits of 
the fund, when the principal, and all accumulations provided 
for by law are accounted for at the proper time. 



IN GENERAL TERM, 1872 



Mary Gillespie et al v. Michael Splahn, Appellant 

Where the record of a judgment shows that process has heen serred on the 
defendant, an omission to enter of record a default will not render the 
judgment inadmissible in eridence against the defendant. 

A certificate made bj a Sheriff of the sale of real estate on an execution, is 
assignable, and will authorize the Sheriff to make a deed to the assignee. 

The return of a Sheriff upon an execution as to matters required to be re- 
turned in the discharge of his official duties, can not be contradicted by 
the Sheriff, nor by the parties to the execution, by parol evidence, 
except in a direct proceeding. 

Where it is shown by return, that a summons has been served in accordance 
with the provisions of a statute, the party served can not, in a collat- 
eral proceeding, show by pajrol that he had no notice of the action in 
which the summons issued. 



IN GENERAL TERM, 1872. 229 

Gillespie ei alv. SpUhn. 

An innocent parohaser of property, sold at Sheriff's sale on an execution, 
can not be effected by an irregularity in the issuance of the execution. 

Barbour Sf Jacobs^ for Appellant. 

McDonald^ Butkr Sf McDonald^ for Appellee. 

Blair, J. — This is a suit to recover possession of cer- 
tain real estate, and damages for the detention of the same. 

The defendant answered in two paragraphs. First, a 
general denial, and second, that the plaintiff claims title by 
virtue of a deed from the Sheriff of Marion county upon the 
foreclosure of a mortgage given by the defendant to one 
Timothy Splahn; that the mortgage was drawn up by 
Christopher Werbe, and William V. Burns, who the defend- 
ant understood to be attorneys, and purported to be given to 
secure the payment of fourteen hundred dollars, but was in 
fact only given to secure a loan of seventy dollars ; that the 
false amount was inserted in the mortgage by the advice of 
defendant's attorney, as the best means of securing to 
defendant ''his house, and lot in case of an anticipated 
domestic difficulty, which fortunately did not prove to be 
serious, and no occasion ever occurred to use the mortgage 
for any other purpose than to secure the loan of seventy dol- 
lars," and it was not made to defraud any creditor, or any 
other person. That the mortgage was left at the Recorder's 
office, and duly recorded, and that he fully paid the mortgage 
before it was foreclosed ; that one Wm. V. Burns, without 
any assignment of the mortgage, and without the knowledge, 
or consent of the mortgagor, or mortgagee, fraudulently pro- 
cured the mortgage from the Recorder's office, and put it in 
suit, and prosecuted it to a final decree without the consent, 
or knowledge of the mortgagee, and the defendant says he 
never had any knowledge, or notice of the suit; that he was 
at the commencement of the suit, and for a long time there- 
after, absent from Marion county, and if any summons was 



\ 



230 SUPERIOR COURT REPORTa 

Gillespie §t al v. Splahn. 

served by leaving copy at his residence, it was lost^ or 
destroyed, and never came to his knowledge. The decree 
was rendered on the 6th day of October, 1866, and decree 
issued on the 7th day of February, 1868, and mortgaged 
property was sold on the 7th day of March, 1868, on a bid 
made in name of Chas. Coulon by said Burns, Burns, and 
Conlon knowing at the time that the mortgage had been 
paid, and the decree obtained fraudulently, and Coulon 
assigned the certificate to Mary Gillespie ; that defendant did 
not know the property was advertised for sale, or sale made 
until a year after the sale was made ; that he has resided 
upon the property at all times since the mortgage was made, 
and could have told any one enquiring that the mortgac^e had 
been satisfied, and Mary Gillespie could not, and did not 
acquire any greater right than Coulon, and Coulon never 
paid any portion of his bid of 9500, and the deed was made 
to Mary Gillespie before he knew of the sale, wherefore 
defendant prays that the claim of plaintiff, which is a cloud 
upon his title, may be removed, and judgment decree, and 
sale declared void, &c. 

A demurrer being overruled to this answer, the plaintift' 
filed a general denial to the same. 

The cause was tried before a jury, and a verdict returned 
for the plaintiff for possession of the real estate, and damages 
for its detention. 

A motion of the defendant for a new trial was overruled, 
and excepted to, and judgment rendered on the verdict 

The first error complained of is the admission in evidence, 
over the objection of the defendants, of the record of the 
ease of Timothy Splahn against Michael Splahn, and wife, 
the copy of the decree, and execution, and the deed of the 
Sheriff of Marion county to Mary R. Gillespje, the plaintiff. 

The objection to the record was that it was incompetent, 
irrelevant, immaterial, and insufficient, and because it was 
not made within the time required by law. It is urged that 



IN GENERAL TERM, 1872. 2S1 

Oillespie et alv, Splahn. 

the record does not show that the defendant was defaulted, 
or that a role was taken against him for an answer. It being 
shown that there was service upon the defendant by leaving 
a copy at his last, and usual place of residence, the omission 
to enter a default is immaterial, and no rule for answer could 
have been entered unless there was an appearance for the 
defendant The gist of the defense in this action seems to 
be that the defendant did not appear to the former suit, or 
have actual notice of the suit; and hence we think the evi* 
dence was properly admitted. 

It is urged that the deed of the plaintiff from the Sheriff 
ought not to have been admitted in evidence, because it is 
shown that she was not the purchaser at Sheriff's sale, and 
that the certificate of sale made by the Sherifi to Coulon, 
the purchaser, is not assignable, and the Sheriff is not 
authorized to make a deed to an assignee of such certificate, 
because the statute, "^ Sec. 372, 2 G. && H., p. 250," directs 
the deed to be made ^ to the purchaser," and such certificates 
are not enumerated among the Instruments that are assign- 
able by the first section of the act of March 11th, 1S6L It 
seems to us that the certificate in such case is an instrument 
by which the Sheriff promises ^ to convey property," and is, 
therefore assignable under the provisions of the act cited. 

This also seems to be clearly recognized by the act pro- 
viding for the redemption of real property, approved June 
4th, 1861, where it is said the property sold may be redeemed 
^ by paying to the purchaser, his heirs, or assigns, &c., 
* * the purchase money with interest thereon at the rate 
of ten per cent, per annum ;" and if the property is not 
redeemed the certificate ^ shall entitle the holder thereof to a 
deed of conveyance to be executed by the officer making the 
sale at the expiration of one year from the date of the sale." 
Sea's 1, and 2 of the above act, 2 6. & H., p. 251. It is 
true that the terms of this last cited act would not perhaps 
make such certificates assignable, if it was clear by the other 



232 SUPERIOR COURT REPORTS. 

Qillcspie 9t mi 9. Splaha. 

acts that it was intended that sach certiGcates should not be 
assignable, or that the Sheriff conld only make a deed to the 
purchaser ; but it must be remembered that certificates were 
not authorized to be made by sheri& until after the passage 
of the last act, which is one for the benefit of the judgment 
debtor, by withholding a deed from the purchaser for one 
year, and giving the debtor a chance to redeem the premises^ 
and as the act clearly recognizes the fact that they may be 
assigned, and a conveyance made to the holder, the objection 
urged is untenable. To hold otherwise would in many cases 
be a hardship on the purchaser without any corresponding 
benefit to the judgment debtor. 

The next error complained of is the exdusion of eridence 
offered by the defendant to show the falsity of the return of 
the Sheriff, as to the payment of the purchase money bid at 
the SherifTs sale, that Charles Coulon was the highest bid* 
der, and that the real estate was sold to Coulon. These were 
material fieicts, necessary to be shown by the return, and the 
return being complete, it became, and is record. Hobson v. 
Doe J 4 Blackf., 487 ; 2 G. & H., 259, Sec 517. The plaintiff 
had received the certificate of sale made by the Sheriff to 
the person shown by the record to be the purchaser, and the 
transaction ^'as completed by the making of the deed to the 
plaintiff. While it may be true that the holder of a certifi- 
cate by assignment, before the execution of a deed is not 
such an innocent purchaser, and so fetr protected as an 
assignee, but that the judgment debtor might show that the 
purchaser did not pay his bid, or that the assignor was not 
really a purchaser, (points, however, which we do not decide,) 
we are satisfied that the proposition to contradict the return 
by parol evidence in this collateral way, comes too late, the 
conveyance having been made, the return being in all 
respects regular on its face, and the entire transaction com- 
pleted without any notice to the holder of the certificate 
previous to, or at the time of the purchase of the certificate. 



^ 



IN GENERAL TERM, 1872. 233 

Gillespie et al v. Splahn. 

or the making of the deed, that the return was false in any 
particular. 

There is no evidence in the record, nor does it show that 
any was offered to be given tending to show that the plain* 
tiff had any notice that the return was false. 

There is some uncertainty in the adjudicated cases as to 
the rights of parties to contradict the return of a sherifl 
upon material matters required to be returned in the dis- 
charge of his official duties, but we think it may be consid- 
ered as settled that neither the sheriff, nor the parties to a 
judgment, like the case at bar, can contradict the return 
except by a direct proceeding. Herman on Estoppel, 52, 53, 
230, 179, and authorities there cited. The case cited by 
defendant, of Owen v. Ransteady 22 HI., 191, was a direct 
proceeding to enjoin the collection of a judgment by execu- 
tion, the plaintiff averring that there was a defect in the 
service of process, and that the return was untrue, and that 
he did not owe execution plaintiff. The case is not, therefore, 
an authority in support of the position claimed by the 
defendant 

The rule may seem a harsh one in a case like the one at 
bar, where there would seem to be many equities in favor of 
the defendant, but if he has slept upon his rights until the 
property has passed into the hands of an innocent purchaser, 
it is not reasonable that the innocent party should suffer loss 
on account of the negligence of the defendant, or of a fraud 
practiced by those who were placed in a position to perpe- 
trate the fraud by the defendant 

It is claimed that the Court erred in exdudtng the evidence 
offered to be shown by the testimony of the defendant that 
he was absent from his home in Marion county, and that he 
had no notice of the suit The service shown was by leav- 
ing a copy of the summons at the last usual residence of 
the defendant, conforming in all respects to the requirements 
of the statute, and hence was sufficient service, and the evi- 
dence offered was rightly excluded. 



284 SUPERIOR COURT REPORT& 

Gillespie <l ci v. Splaba. 

The next error complained of was the offer of the defend- 
ant to prove by Timothy Splahn, the execation plaintiff in 
the case in which the property was sold, that he never 
authorized an execation to issue, nor did he bear that one 
was issued until after the sale. The plaintiff standing in the 
position of an innocent purchaser, could not be affected by 
the irregular issue of the execution, and hence the ruling of 
the Court in excluding this evidence was right Soles v« 
Harvey y 20 Ind. 

The defendant offered to prove that the mortgage upon 
which the decree was rendered, and the property sold was 
given to secure the sum of seventy dollars, and no more, and 
that the whole amount actually due upon the mortgage, 
principal, and interest was paid by the defendant, Michael 
Splahn, to Timothy Splahn, the judgment creditor, before 
the decree was issued upon which the property was sold. 
This evidence was excluded by the Court, and excepted to 
by the defendant It was distinctly admitted by the parties 
that at the time the decree issued for the sale of the property 
the record of the Court did not show any satisfaction of the 
judgment therein rendered. The decree was for the sum of 
81,406.66. As we understand the bill of exceptions, the 
defendant offered to prove that he never really owed the judg- 
ment creditor that much, that he only owed him seventy-six 
dollars, which amount was paid by the defendant after the 
decree was rendered, and before the sale was made. 

In the first place, this evidence would tend to impeach the 
original finding, and judgment of the Court, and this could 
not be done in a collateral proceeding. The amount found 
to be due by the Court, and for which a judgment, and decree 
was rendered in favor of the plaintiff in this cause, would 
be conclusive against the defendant until reviewed, or set 
aside by a direct proceeding. 

Our attention has been called to the case of Wood v. Col* 
vin^ 2 Hill, 566, as an authority to show that although a 



IN GENERAL TERM, 1872. 235 

Qillespie ei al v, Splabn. 

jadgment may on the record be unsatisfied, yet if has actually 
been paid by an arrangement between the parties, a sale 
after such payment would be without authority, and even 
a bona fide purchaser would in such case acquire no title. 

An examination of the case does not, however, sustain 
this position. There was in that case no bona fide purchaser, 
for the purchaser himself was a party to the transaction by 
which the judgment had been paid, and hence the statement 
of the judge is not authority. This was followed by the 
case of Ckinieron v. Irwin^ 6 Hill, 372, where Cowen, Judge, 
followed the dicta in the former case of Wood v. Colmtiy and 
asserted the same principle, although in the case before him 
it was not necessary to the decision of the question before 
the Court In the later case of Warner Sf Loop v. Blake- 
man et alj36 Barbour, 501, the dicta of the former cases was 
overruled, and a different principle announced. 

In the case of Lav(U et al v. Romley, 17 Ind., 36, the case 
of Wood v. Colvin supra is cited as authority for the same 
dicta, for in the case then before the Court Romley was the 
purchaser, and he himself had extinguished the debt upon 
which the property was sold. Even in the case of Wood v. 
Colvin it is admitted that if there is some fault on the part 
of the judgment debtor, the rule would not apply. This is 
obvious from the fact that if there has been negligence on 
his part it would be wrong to impose the consequences of 
that negligence upon a person in no way shown to be at 
fault An application of the dicta in the case of Wood v. 
Colvin to all cases would enable judgment creditors, and 
judgment debtors to wrong innocent parties, and leave them 
without remedy. And this principal is sustained by the case 
of Warner 4* Loop v. Blakeman supra. 

In the case at bar it is shown by the pleadings as well as 
the evidence that in the original execution of the mortgage 
there was an intention to deceive, and if it has recoiled upon 
their own heads they ought not to attempt to throw the loss 



236 SUPERIOR COURT REPORTS. 

Curry v. Carry. 

upon one not at fault We do not, therefore, believe that 
the po:»ition assumed by the defendant is sustained by 
authority, and the evidence was properly excluded. 

Exceptions were taken to the Jirst^ secondj and third 
instructions given by the Court, but as no special objections 
have been pointed out, and they are in accordance with the. 
rulings upon the evidence here announced, we think they 
were correct So with reference to the firsts second^ third, and 
fourth instructions asked by the defendant, and refused by 
the Court. 

The judgment is affirmed. 



♦♦• 



IN GENERAL TERM, 1872. 



Robert Curry v. Sarah Curry. 

Appeal from Blair, Judge. 

Divorce — when insanity^ no cause for — 
Statute — construed — 

Appeal— /ro??i a judgement on ^^sevefUh clause ^^ — 
Insanity — tchcn may be cause for divorce. 

The statute does not confer authority upon our Courts to decree a divorce to 
a party on the solo grouud that the defendant has become hopelessly 
insune, at least ^when such insanity has not been superinduced by a 
vicious, or reckless course of conduct on the part of defendant. 

Under the tevenih clause of Section teven^ of the Divorce Act, the discretion 
of the Court is to be exercised " (or any o'her cause," but there must 
be an injured party, to whom only, on application, divorces are granted, 
to give cauFC of divorce. 

The husband, of a wife who has lost her reason, is not an injured party, 



IN GENERAL TERM, 1872. 237 

Curry v, Cnrry. 

withia the meaning of the statute, because the sufferer is not a wrong 
doer, and when no wrong has been committed by one party to the 
marriage contract, it is impossible that there can be, in a legal sense, an 
injured party. 
An appeal lies from a Judgment under the seyenth — discretionary clause— of 
this act. 

L. M, Campbell (of Danville), for plaintiff. 

C. L. Holsteinj Guardian ad litem for defendant 

Nbwcomb, J. — This was a proceeding for a divorce. After 
stating that the parties were married in the year 1841, and 
that they lived together as husband, and wife nntii the year 
1857, and reared a family of children, now grown to man- 
hood, and womanhood, the petition alleges : << That during 
the year 1857 said Sarah lost her reasoning faculties, and 
became insane; that plaintiff immediately and promptly 
resorted to the use, and procurement of every, and all means, 
and remedies known to the most eminent physicians of the 
age, and country, for the purpose of restoring the mind, and 
health of said Sarah, but without success ; that since that 
time to the present he has continued his efforts for her resto- 
ration, and has had her placed under treatment at the Indiana 
Hospital for the Insane, where she has been kept, and treated 
for about half the time, that the balance of the time she has 
been kept, and cared for in the family of said plaintiff, all of 
which has occasioned him great expense, and which efforts, 
and medical treatment have availed nothing towards the 
restoring of said Sarah." 

*< That she has been pronounced incurable, and is hope- 
lessly insane." 

<< That by reason of her misfortune she has become trouble- 
some, disagreeable, and repulsive to her own children, having 
lost every attribute of humanity; that plaintiff has been 
impoverished, and himself, and his family made utterly, and 
indescribably miserable by reason of the continued insanity 



238 SUPERIOR COURT REPORTS. 

dury V. Curry. 

of said defendant, that her presence in the family, and the 
knowledge of his relations to her, make his life almost a 
burden, and that his, and her children desire that be may be 
divorced from said Sarah." 

On these facts, with the additional averment that defend- 
ant^ at the time of the filing of the petition, was an inmate 
of the Hospital for the Insane, the plaintiff asked a divorce, 
and that the Court should charge him with the payment of a 
reasonable sum annually for the support of the defendant. 

A guardian ad litem was appointed by the Court to defend 
the interests of the defendant, who filed a demurrer to tbe 
petition. His Honor, Judge Blair, before whom the cause 
came at Special Term, sustained the demurrer, and rendered 
final judgment against the petitioner, from which judgment 
he prosecutes this appeal. 

Insanity, however hopeless of cure, is not a specified stat- 
utory cause of divorce in this State, but the seventh clause 
of Section seven, of the Divorce Act, 2 G. & H., 351, 
authorizes the granting of a divorce for any other cause than 
those enumerated, <^ for which the Court shall deem it proper 
that a divorce should be granted." 

It was under this grant of discretionary power that the 
petitioner prayed the Court to pronounce a divorce. 

The Judge who presided at Special Term having held that 
confirmed insanity was not a cause of divorce, we are asked 
to review, and reverse his decision. 

It has been held by the Supreme Court in this State, in 
Rilter v. RUter, 5 Blackf., 81, and in Ruby v. Rub^j 29 Ind., 
174, that an appeal lies from the judgment of the lower 
courts in a case arising under the discretionary clause of the 
statute concerning divorces. The appeal lies, therefore, in 
this case ; and we are brought to conf^ider the single propo- 
sition, whether the long continued, and incurable insanity of 
the wife is a sufficient cause for granting tbe husband a 
divorce. 



IN GENERAL TERM, 1872. 239 

Oiirrjr t. Curry. 

If the statate has dothed us with power to decree divorces 
for this cause, the petition presents reasons as cogent perhaps 
as can be found in any case, for the exercise of such power ; 
but, upon a careful consideration of the question, we are 
satisfied that the decision at Special Term ought not to be 
disturbed. 

It is not charged that the malady of the wife resulted from 
any misconduct on her part, or that she did any act in viola- 
tion of her marital duties while sane. She, therefore, has 
committed no wrong against the husband. 

The statute provides that divorces shall be granted, on the 
application of the injured party^ for certain enumerated 
causes, and for any other cause than those enumerated, '* for 
which the Ck)urt shall deem it proper that a divorce should 
be granted." Taken by itself, the latter clause would seem 
to confer upon the Court trying a divorce case, entire, and 
full discretion to grant a divorce for other than the specified 
causes. Such, however, is not the case. In discussing a 
similar statute. Judge Dewey, in the case of Ritter v. RUter^ 
supra^ said : *^ That power, ample as it is, is not entirely 
without limits. The statute requires a catise of divorce, on 
which the discretion of the Court is to be exercised. The 
conclusion of the judgment that such cause is reasonable, 
and 9uch a one as forfeits the marriage contract on the part of 
the wrong doer^ or otherwise, is not an act of legislation." 
* * * Like all discretionary power in Courts, it must be 
exercised in a sound, and legal manner; it must not be gov- 
erned by caprice, or prejudice, or wild, and visionary notions 
with regard to the marriage institution," etc. 

The statute places a limitation upon the power of courts 
in divorce cases, which, in our judgment, is fatal to the pres- 
ent suit. There is no authority conferred to grant a divorce 
except "upon the application of the injured party." Where 
no wrong has been committed by one party to the marriage 
contract, it is impossible that there can be, in a legal sense, 



240 SUPERIOR COURT REPORT& 

an injared party. Where no wrong has been done by the 
party against whom the divorce is sooght, a divorce can not 
be granted. Oul'eU v. GuUett, 25 Ind., 517. 

It is a great, and irreparable injury to a husband for his 
wife to lose her reason, but he is not an injured party within 
the meaning of the statute, because the sufferer is not a 
wrong-doer. The injury may be classed among those other 
accidents, or calamities that are, in law, deemed the acts of 
God, for the consequences of which no legal right of action 
accrues. Actus Dei neminifacU uyuriain. 

We hold, therefore, that the State of Indiana has not 
conferred authority upon her courts to decree a divorce to 
a husband on the sole ground that the wife has become hope- 
lessly insane; at least when such insanity has not been 
superinduced by a vicious, or reckless cause of conduct on 
her part 

The judgment at Special Term is therefore affirmed, with 
costs. 



IN SPECIAL TERM, 1872. 241 



Smock 9. Henderson et al. 



IN SPECIAL TERM, 1872. 



William C. Smock v. Wm. Henderson, James O. Wood« 

RUFF, Deloss Root, William Braden, 

Thos. a. Hendricks. 

A demarrer to eyidence admits all facts, aLd conclusions which the evidence 
conduces to prove. The court, in considering the demurrer, must be 
liberal in its inferences in favor of the plaintiff, and must consider 
ererj fact as proved which a Jury might legally, and reasonably have 
inferred in his favor, avoiding, however, all forced, or violent infer- 
ences. 

Where it is shown that a certificate of stock in an incorporated company has 
been assigned, and after its assignment it was surrendered to the com- 
pany, and other certificates issued for the same stock, to no greater 
amount than the stock surrendered, in the absence of any proof to the 
contrary, it will be presumed that the stock was surrendered with the 
absent of those to whom it was assigned. 

A transfer of shares of stock in an incorporated company, without assign- 
ment upon the books of the company, is good as between the parties. 

The provision requiring a transfer of stock on the books of a corporation, is 
for the benefit of the corporation, but if the corporation assent to a 
transfer otherwise than on the books, and by such transfer the pf^rsons 
to whom the stock is transferred become stockholders, the corporation 
can not object, nor can the stockholder, as long as he is in fact a stock- 
holder. 

Evidence showing that the holder of a certificate of stock in an incorporated 
company has never been denied any privilege as a stockholder, and 
that there has never, at any time, been certificates of shares outstanding 
to an amount greater than the authorized capital stock, and that the 
shares held were issued in lieu of a certificate of shares surrendered 
will not sustain a charge of over issue of stock. 

Ihider the act of the Legislature " to authorize the construction of water 
works," .(Acts of Beg. Session 1866, p. 103), it was not necessary that 
the whole, or any amount of stock should have been taken, before the 
organization was completed, and not being required by the act itself, 
there is no other rule of law requiring it 

Under the act authorizing its organization, the water worki oompany could 

8 



842 SUPERIOR COURT REPORTa 

Smook t. Henctonon $t oL 

take the Central Canal bj parehaae, ahd Itsae stock in pajment tber»- 
for, bat tbe amonnt so issued to be consistent with honesty of purpose, 
should be reasonably proportionate to the Talne of the canal. 

The fact that the eanal purchased, and owned by the Water Works Com- 
pany has no yalne, does not show that the stock in the corporation is 
without yalae. 

Stock to the amount of $500,000, the fhll amount authorised to be isiaed by 
the Water Works Company, was issued on receiving a oooToyance of the 
Central Central. One-half of this amount of stock was reoeiyed by the 
stockholders of the Canal Company, the consideration named in the 
deed conTeying the canal was $200,000, and by the terms of the agree- 
ment of purchase the other half was to come back, and did come back 
to the defendants for their own use : 

Bdd: That tbe defendants, and the stockholders in the Oanal Company, 
being the owners of the stock, and parties to the agreement under 
which it was issued, as long as they held the stoek themselves no one 
could be injured but themsoWes, by reason of the transactioo reducing 
the value of the stock. 

The fact that it is stated on the fhce of a certificate of stock, <'pcitfin taW of 
the value of fifty dollars per share," shows that the shares are not liable 
to further calls. It can not be held to mean that the corporation hat 
money, or property equal in value to the par value of the stock, and is 
not a representation that can be relied on by a purchaser as indicating 
the value of tbe stock. 

Fraud may be shown by reason of false representations made by a seller to 
induce a purchaser to buy shares of stock. 

But in the absence of any false representations by which a purchaser is 
induced to buy shares of stock in an incorporated company, although 
the stock may have been depreciated in value before the purchase by 
the acts of parties managing the business of the corporation, the pur- 
chaser can not recorer against such parties. 

Dye 4* Harris^ for plaintiff. 

Hendricks, Hord Sf Hendricks, Porter, Harrison 8f Hines^ 
for defendants. 

Blair, J. — The complaint in this case contained five para- 
graphs. To the first, and third paragraphs demurrers were 
sustained, and these need not now be considered. 

The second paragraph is, in substance, as follows: That 
the Water Works Company is a corporatiooi duly organized 



IN SPECIAL TERM, 1872. 243 

Smock 0. Henderaon €t mL 

under the laws of Indiana ; the amotint of stock subscribed 
>vas only six hundred dollars, no part of which has ever been 
paid, and no certificates of istock were ever issaed therefor; 
that in Jane, 1870, the defendants were* directors of said cop* 
poration, and as such directors, in violation of their legid 
duty, and without any payment, or subscription of stock, 
and without any consideration moving to the corporation, 
wrongfully, and unlawfully issued certificates of stock in 
said corporation, to the amount of 9300,000, to one Harmon 
Woodruff, and to themselves, and recited on the face of the 
certificates that the stock had been paid in full, when in fact 
nothing had been paid, and the certificates represented no 
Teal vidue, and were issued with a fraudulent intention of 
selling them in the market for a value they did not possess; 
that the plaintiff purchased certificate number twenty-five, 
for one hundred and sixty shares of fifty dollars each, of said 
stock, believing the same to represent paid up capital of said 
corporatioB, when in fact it did not represent any capital stock, 
paid, or unpaid; that he paid therefore the sura of four 
thousand doUars, and it is of no value: wherefore the plains 
tiff says he has been damaged. 

The fourth paragraph charges that the defendants, as 
directors, while certificates of stock to the full amount for 
which they were authorised to issue stock were outstanding, 
issued other certificates of stock, one of which, for one hun* 
dred and sixty shares, was issued to the plaintiff, for which 
he paid four thoasand dollars, beli^ing the same was a gen^ 
uine, and legal certificate : wherefore he says he has been 
damaged, etc. 

The fifth paragraph, after alleging the organization of the 
company, and the subscription of stock, as in the second 
paragraph, acid that it was never paid in, nor certificates 
issued therefor, charges that afterwaids, the defendants made 
an agreement with Harmon Woodruii^ and others, which 
agreement is made a part of the complaint. The agreement 



244 SUPERIOR COURT REPORTS. 

Smock V. Henderson ei oL 

was made on the 17th diy of May, 1870, and is between the 
Indiana Central Canal Company, by Harmon Woodrofl^ 
Benj. Gould, and Heniy R. Seldon, agents of said Canal 
Company, of the first part, and the defendants, William 
Braden, Deloss Root, Thomas A. Hendricks, William Hen- 
derson, and James O. Woodruff, of the second part, and it 
is agreed therein : 

First That the Canal Company should conyey to the 
Water Works Company of Indianapolis that part of the 
Indiana Central Canal north of Morgan county, including 
all appurtenances, leases, etc, thereto belonging. 

Second. The Water Works Company was to accept the 
conveyance of the Canal '* in full payment, and satisfaction 
for five hundred thousand dollars in amount of its capital 
stock, (being the full amount of stock wbich it is entitled to 
issue,) and shall deliver to the party of the first part certifi* 
cates of full paid stock, not subject to farther call for such 
five hundred thousand dollars, in such amounts as shall be 
required by the party of the first part," The Water Works 
Company also to assume the responsibility of suits pending 
in favor of, or against the Canal Company, or any of the 
members thereof, growing out of the property, or business 
thereof, etc 

Third. If any further issue of stock is made by the 
Water Works Company, the stockholders to have the priv- 
ilege of taking the same, etc 

Fourth. The Water Works Company to execute to Wil* 
liam Henderson, and James M. Ray, as trustees, a mortgage 
upon the whole of the property conveyed to said company, 
conditioned as security for the payment of the bonds of said 
company, to the amount of three hundred and fifty thousand 
dollars, payable in not less than twenty years, and bearing 
interest at the rate of eight per cent per annum, payable 
half yearly, the principal, and interest to be payable in gold. 

Fifth. Twenty thousand dollars in amount of said bonds 



IN SPECIAL TERM, 1872. 245 

Smook t. Henderson $t oL 

to be deliyeied to tbe Canal Company ^ for the purpose of 
satisfying its indebtedness,'' to be delivered on satisfaction of 
a certain mortgage lien upon the canal property being 
entered of record. 

SixiL The parties of tbe second part (the defendants) to 
receive the remaining three hundred and thirty thousand 
dollars of bonds, and apply the same, or thq proceeds of the 
sale thereof, ^ at the rate of ninety cents on the dollar of the 
nominal amount thereof^ to the oonstruction, and putting in 
operation of water works in the city of Indianapolis, accord- 
ing to the terms <^ an ordinance authorizing such construc- 
tion, etc" Tbe said parties to superintend the application 
of said moneys to the work, under the general direction of 
Mr. Holly, of the Holly Manufacturing Company — ^the work 
to be done promptiy, and at cash prices for labor, materials, 
etc The bonds to be deposited with the trustees, and to be 
issued to the parties of the second part, as the work pro- 
gresses, on tbe certificate of the Holly Manufacturing Com- 
.pany as to the amount expended, the amount issued not at 
any time to ejLceed the amount expended, until the whole nine- 
ty per cent of the three hundred and thirty thousand dollars 
shall have been expended, when the balance shall be issued. 

Seventh. The Canal Company to convey, as soon as it 
may be issued, ten thousand dollars in amount of the capital 
stock of tbe Water Works Company to the parties of the 
second part, and to place two hundred and forty thousand 
dollars in amount thereof in the possession of William 
Henderson, James M. Ray, trustees, to be delivered to the 
parties of tbe second part, as follows : Fifty thousand dol- 
lars oi stock for each seventy thousand dollars certified to 
have been expended in the construction of water works, and 
fifty thousand dollars of stock for each additional seventy 
thousand dollars so expended, until the whole ninety per 
cent of the bonds issued shall have been expended^ when 
the residue of the stock shall be deliveved. 



SUPERIOR COURT ] 



finock •. Handaraon tl ai. 



Eghth. Ths pwUes of tbe aecond part t- 
an the bonde oat of tbe proceeds of tbe a 
to raaob thereof u sball not be otherwJM 
jncome of the works i» anflicient to pay tl 

The plaintifT then fiTTther charges, that tbi 
to the V/aXen Works Company in ponaana 
nient was wholly witboat v^ae, as the < 
HarmoD WoodrutI well knew; &at tbe i 
held only an easement in the real estate t 
"which the canal flowed, and that the right, i 
tbe Canal Company could not be legally li 
Water Worka Con^Mny, nor could tbe ^" 
paiiy, by, or noder ita charter, taker or I 
franchise of the Canal Company ; and if tbe aad 
passed by a conveyance to the Water WoikM 
was useless, and luineceseary to aceorafdisb tl 
which the company was organized, and eonld a 
the same ; that tbe eanal was eucambered by li 
beyond its alnlity to supply, aac~ 
which tbe defendants well knew, bot that i 
agreement with the fraudulent porpoec, and j 
creating s fictitious capital of the pretended i 
hundred thousand doltcrs of said Water WorkaJ 
and dividing the same among themselves, isa 
of stock therefor, and selling them as paid up c 
of said company for a valiie they did not p 
defendants, after making the agreement, I 
tbe Water Works Company : to carry out tbe j 
purpose above set forth, elected the defendant, i 
Woodruff', Preeident of said company, and < 
their agent to issue the certificates of stcok, and 1 
witb the knowledge, and consent of the other t 
iaeoed the certificates, reciting on tbe face of t 
they had been paid in full, and purported to represe' 
capital stock of said com^tany; that certificate 



IN SPECIAL TERM, 1873. 247 

Smook «. Headenon §t aL 

twenty-fiTe, for one bandred and sixty sharesi was issaed to 
the plaintiff, and be purchased the same, believing that it 
represented, as it purported, paid up capital stock of said 
corporation, whereas it was firaudolently issaed a» aforesaid, 
and represented no capital stock, paid, or anpaid, and the 
money paid by the plaintiff for said certificate was not paid 
to, or received by the Water Works Company, and the 
stock so purchased by the plaintiff was, by reason of the 
fraadolent acts of the defendants, without valae : wherefore 
plaintiff says he has been damaged, etc. 

The defendant, James O. Woodruff, files his answer in 
general denial, and thei other defendants join in an answer 
denying the matters alleged in each paragraph of the com* 
plaint 

The cause was submitted to a jury for trial, and after the 
plaintiff had closed his evidence, the defendants filed a 
demurrer to the same, and the right of the plaintiff to recover 
is now presented upon the demurrer. 

It will be most convenient first to consider how far the 
the evidence supports the facts alleged in the complaint 
The defendants having demurred to the evidence, the Court 
must be liberal in its inferences in favor of the plaintiff, and 
must consider every fact as proved which the jury might 
have legally, and reasonably inferred in his favor, avoiding, 
however, all forced, or violent inferences. The demurrer 
admits all facts, and conclusions which the evidence con- 
duces to prove. Mc Oreary v^ Fike^ 2 Blackf., 374 ; Doe v. 
Roe etalj^ Blackf., 263. 

Following the above rule, we find from the evidence that 
the Water Worics Company was organized as stated in the 
complaint That originally there was a subscription of 
stock to the amount of six hundred dollars, and this was all 
the stock ever subscribed. No portion of the stock sub- 
scribed was ever paid in, nor was any certificates of stock 
ever issued for the amounts subscribed. That the defend- 



•i48 SUPERIOR COURT REPORTS. 



Smock 9. Hendenon el of. 



ants were directors of the corporation at the time alleged ia 
the complaint That the defendants, in their personal 
capacity, and not as directors of the Water Works Com- 
pany, made the agreement set oat in the fifth paragraph of 
the complaint with the Canal Company, by her agents, Har^ 
mon Woodruff, and others, on the 17th day of May, 1870. 
That the Canal Company, in pursuance of the agreement, 
conveyed the canal to the Water Works Company, by a 
deed of date the 1st day of May, 1870. That the Water 
Works Company, by her Board of Directors, accepted the 
canal in full payment, and satisfaction for five hundred 
thousand dollars in amount of her capital stock, that being the 
full amount which she was allowed to issue, and the defend- 
ants, as directors, caused certificates of stock to that amount 
to be issued. Certificate of stock No. 1 was issued on the 
7th day of June, 1870, to Harmon Woodruff. This certifi- 
cate was for five thousand shares of fifty dollars each, 
amounting to two hundred and fifty thousand dollars. On 
the same day, certificates numbered two to six, inclusive, 
were issued, conveying to each of the defendants forty 
shares, amounting in all to ten thousand dollars. Also, on 
the same day, certificate number seven was issued, convey- 
ing to Harmon Woodruff four thousand eight hundred 
shares, amounting to two hundred and forty thousand dol- 
lars. On the 13th day of June, 1870, certificate No. 1 was 
assigned by Harmon Woodruff to the various stockholders 
of the Central Canal Company, and the certificate was 
returned for cancellation to the Water Works Company on 
the 17th day of June, 1870, was canceled, and other certifi- 
cates issued in lieu thereof, to divers persons, among which 
was the certificate to the plaintiff. At the time certificate 
No. 1 was returned, a list of stockholders of the Canal Com- 
pany, and persons to whom stock was to be issued, was fur- 
nished to the Secretary of the Water Works Company, and 
the stock was issued according to the list From the 6th of 



IN SPECIAL TERM, 1872. 249 

Smock 9. Henderson et al. 

September, 1870, to April 22d, 1871, certificates of stock 
were issued to different persons, including large amounts to 
each of the defendants, in lieu of certificate No. 7, originally 
issued to Harmon Woodruff. This was the stock amount- 
ing to two hundred and forty thousand dollars placed by the 
Canal Company in the hands of trustees, to be delivered to 
the defendants as the work progressed, according to the 
agreement The plaintiff purchased certificate No. 25, of 
James O. Woodruff, President of the Water Works Com- 
pany. The contract of purchase was made on the 26th of 
May, 1870, and a part of the money paid therefor, but the 
certificate was not issued and received by the plaintiff until 
the 17th of June, and the plaintiff paid for the one hundred 
and sixty shares of fifty dollars each the sum of four thou- 
sand dollars. The certificate recites that " William C. 
Smock is the owner of one hundred and sixty shares of the 
capital stock of the Water Works Company of Indianapo- 
lis, paid in full of the value of fifty dollars per share." 

The preliminary negotiations for the purchase of the stock 
were made through Daniel MacaiUey, who called on Mr. 
Smock and said he could procure him some stock. Mr. 
Smock gave Macauley a check for Mr. Woodruff for a part 
of the money. The plaintiff saw Mr. Woodruff at the office 
of the Water Works Company, for the first time, when he 
received the certificate from him. He then asked Mr. Wood- 
ruff some questions about the company, and he showed the 
plaintiff a map containing the proposed lines of pipes, and 
told what had been done, and how much was proposed to be 
done in a given time. The plaintiff asked where the funds 
were to come from, and was informed by Mr. Woodruff that 
^100,000 had been borrowed to put down mains. The 
plaintiff says he had no conversation with Woodruff, or any 
of the defendants, with reference to the manner in which the 
stock was paid. He was not a stockholder in the Canal 
Company, and did not know for some months after the pur* 



250 BUPEBIOR COUBT REPORTS. 

Snioek •. Hendenon «l mL 

chase of stock that the canal was conveyed, and was a part 
of the stock of the Water Works Company. No part of 
the money paid by the plaintilBf for the stock passed to the 
Water Works Company. The canal, at the time of the 
conveyance to the Water Works Company, v^as worth 
nothing as an investment With its incumbrances of leases, 
etc, it was without valae in the market For a series of 
years prior to that time, the expenses of keeping it op 
exceeded the income from water rents. It was incumbered 
with leases of water power. On what is called the opper 
level, in the city, the leases of power greatly exceeded the 
capacity of the canal for a large portion of each year. 
When there is a supply of water on the upper level, there is 
a surplus sufficient for some four and one-half run of stone 
on the lower level. The water works are located on the 
lower level, and have been using the water there, and the 
surplus of four and one-half run is sufficient to supply the 
ordinary demand in running the pumps, but not sufficient 
for fire purposes. The water rents for 1870 amounted to 
near ten thousand dollars. If the Water Works Company 
use water power equal to three run of stone, there would be 
a saving of nine or ten thousand dollars in running a whole 
year by using water instead of steam. If they could not 
rely upon it in case of fires, or the supply of water should at 
times be short, the difference would be lessened, and as the 
company in such case would be compelled to keep her 
engines in order, and have an engineer at hand, the difference 
would be reduced by such expenses. The water power 
afforded by the caned is uncertain, owing to the rise and fedl 
of water in the river, and the liability to breaks in the canal 
and dam. Great expense has often been incurred on account 
of breaks. From the great difference in the expense of run- 
ring machinery by water power and by steam, and the value 
of the water rents, the evidence shows that the cilnal is not 
entirely without vcdue to the Water Works Company. As 



m SPECIAL^ TERM, 1872. 251 

Smock p, Henderson 4t aL 

ftti inTestment by itself^ for the purpose of profit, it is with* 
oat yalue ; but for tbe purpose of propelling macbinery, it 
may be used with profit by tbe Water Works Company. 
The defendants bad full knowledge of the value of the canal 
at the time the contraet was made, the deed accepted, and 
the stock issued therefor. Other matters in evidence will be 
eonsidered in connection witb tbe legal rights of the parliea 
involved iu the case. 

Tbe first question presented by the plaintiff in argument, 
and in the brief furnished the Court, is that of over-issue of 
stock, as presented in tbe fourth paragraph of tbe complaint* 
It is claimed that as certificate No. 1, for stock to the amount 
§250,000, was issued to Harmon WoodruiS^ tbe President of 
the Canal Company, and was by him assigned to the various 
stockholders of the Caned Company, oq tbe 13th day of 
June, 1870, that this vested in them the stocky and ^ it could 
not be divested without the eonsent of such owners, and the 
issue of new certificates to other parties than the owners, or 
their assignees, would be an over issue ; it would not change 
the vested ownership of tbe stock already allotted and owned ; 
it would confer no rights on tbe party to whom it was 
issued, etc.'' 

It is true that tbe stock issued to the plaintiff was a part 
of the stock shown to have been assigned to the stockholders 
in the Canal Company, and no assignment from any of the 
stockholders to the plaintiff is shown to have been made ; 
but as it is shown that certificate No. 1,. after tbe assignment 
to the stockholders of the Canal Company^ was surrendered 
to the Water Works Company on tbe 17th day of June, 
before the shares were issued to the plaintiff, in the absence 
of any proof to the contrary^ it will be presumed that it waa 
surrendered witb tbe assent of those to whom it bad been 
assigned, and in whom it was then vested^. 

But it is urged that it was only returned to have the stock 
transferred on the books of the company to the owners — 
that iS) to the stockholders in the Canal Company. 



252 SUPERIOR COURT REPORT& 

Smock V. Hendenon §t ol. 

The evidence shows that after the certificate No. 1 was 
•urrendered, other certificates in liea thereof were issaed by 
the Water Works Company, in amoant equal to, and no 
more, than the amoant of shares in the surrendered certificate, 
and among the certificates so issued was the certificate Na 
25 to the plaintiff, and the plaintift was not a stockholder in 
the Canal Company. It is not shown, however, that any 
stockholder of the Canal Company has ever claimed the 
shares issued to the plaintiff, or that they were wrongfully 
issued to him, and as a transfer of shares, without assign* 
ment upon the books of the company, is good between the 
parties, it seems to me that it may well be inferred that some 
stockholder in the canal made a transfer of his shares to the 
plaintiff. The provision requiring a transfer of stock on the 
books of a corporation, is for the benefit of the corporation ; 
but if the corporation assent to a transfer otherwise than on 
the books^ and by such transfer persons to whom stock is 
transferred become stockholders, the corporation can not 
object, nor can the stockholder so long as he is really de facto 
a stockholder. Conant el al v. Reed et cU^l Ohio St, 298; 
Mandelbaum v. North American Mining Company^ 4 Mich^ 
4(55 ; Bargate v. Shortridge, 31 E. L. & Eq., 44. 

It does not appear that the plaintiff has ever been denied 
any privileges as a stockholder, or that there has ever been^ 
at any time, certificates of shares outstanding to an amount 
greater than the authorized capital stock, and it being 
shown in evidence that the shares issued to the plaintiff were 
issued in tieu of a certificate for sha^^es surrendered, the evi* 
dence does not support the charge of an over-issue of stock. 

Under the second paragraph of the complaint, it is urged 
that the deed from the Indiana Central Canal Company to 
the Water Works Company was void, and conferred on the 
Water Works Company no rights, and hence there was no 
consideration for the stock issued. 

It is true that if the directors of a corporation expend the 



IN SPECIAL TERM, 1872. 253 

Smock V. HendenoQ et al, 

capital stock, or the assets of a corporation, in the purchase 
of property which those of whom they purchase have no 
right to convey, and can not legally convey, and do not con- 
vey so as to vest any property in the parchasers, the stock* 
holders, those who own the stock and assets of the corpora^ 
tion, would be damaged by such transaction, and an action 
would lie against the directors for their act, by which the 
assets of the corporation had been wrongfully squandered 
and lost to the stockholders. 

The acts of a corporation in violation of its charter are 
not, however, in all instances necessarily void. A corpora- 
tion may by such acts sometimes acquire title to property, 
and transmit it to others. Fanners^ Sf Millers^ Bank of Mil- 
wavkee v. Detroit Sf Milwaukee R. U. Cb., 17 Wis., 372 ; 
BisseU V. Michigan Southern R. R. Co., 22 N. Y., 258 ; Par- 
ish V. Wheeler, lb., 494. 

To determine the power of the Canal Company to convey 
the canal and franchise of the Water Works Company would 
require a careful investigation, which I do not deem neces- 
sary to enter upon in this case. The stockholders in the 
Canal Company seem to have acquiesced in the bargain 
made by their agents and officers, and accepted the pay for 
for the canal. They can not, therefore, complain. They 
have got all they bargained for, and with a knowledge of the 
facts, ratified the sale by voluntarily accepting the proceeds. 
We are not apprised that any complaint is made, or pro- 
ceedings threatened on behalf of the public, that conferred 
on the Canal Company the privileges, or franchises possessed 
by the company. It is not shown but that the Water 
Works Company got all that was attempted or proposed to 
be conveyed by the Canal Company ; but on the contrary it 
is shown that the Water Works Company is using the water 
power derived from the use of the canal, and for aught that 
appears she is in undisturbed possession under a claim of 
title and ownership. Again, the bargain was made, the con- 



954 SUPERIOR COURT REPORTS. 

SmoeK fi Headflnoo «l «!. 

wejBmot of the canal aooepted, woA the atock iaaiied aooofd* 
ing to the agreement, befidie the plaintiff became a stockholder; 
hence he was not injoied by the transaction, not having any 
interest in the Water Works Company at the time of the 
transaction that could be injured. Whether the transaction 
was so tainted with fraud as to give him a right of action 
will pfesentiy be considered. For these reasonsi I conclude 
that it is not necessary further to inquire whether the Canal 
Company had a right to convey the canal or not, but for the 
purposes of this case, as fieur as it afects the fights of the 
plainti^ we must consider the conveyance as having passed 
the canal to the Water Works Company. 

We come then to consider the evidence and law in com 
nection with the fifth paragraph of the complaint 

The act of the Legislature ^ to authorise the formation of 
companies for the construction of water works in^ and for 
incorporated cities," (act of Regular Session 1865, p. 103,) 
under which the Water Works Company was organised, is 
extremely liberal in its provisions, but lacks some of the 
provisions usually contained in acts authorising the organi* 
cation of corporations of so much importance to the public. 
It is only necessary that any number of persons, not less 
than twelve, shall make and acknowledge a certificate show^ 
ing the corporate name they propose to assume^ the amount 
of capital stock, the terra of existence not exceeding fifty 
years, the number of directors, and their names for the first 
year, and the name of the city where the business is to be 
carried on ; and after causing the certificate to be filed, and 
recorded in the office of the recorder of the county, the per^ 
sons who have signed the same, and their successors, ^ shaU 
be a body politic and corporate, and by their corporate name 
may take, hold, and convey all such real estate as shall be 
necessary to carry on the operations, and eflect the objects and 
purposes of the company, &c." The act contains no provi* 
sions requiring a certain, or any amount of stock to be taken, 




IN SPECIAL TERM, 1872. 256 

Smock V. HendenoD et al, 

or subscribed for, before becoming a corporation, nor any pro* 
vision as to how, or in what quantities, or in what manner the 
stock taken shall be paid in. A person proposing to purchase 
stock would learn nothing, therefore, of the standing of the 
company, or the value of its stock, by looking at the provi* 
sions of the act authorizing the organization, and seeing 
what must have been complied with. He must look alone 
to the acts of the company after its organization, to see what 
has been done, and what the stock is actually based upon, in 
order to estimate its probable value. It was not necessary, 
under the act, that the whole, or any amount of stock should 
have been taken before the organization was completed, and 
uot being required by the act itself there is no other rule of 
law requiring it Minor v. Mechanic^ Bank of AlescandriOf 
1 Pet, 46. 

It is claimed by the plaintiff that the agreement made by 
the defendants with the Canal Company, and their accepting 
the conveyance of the canal on the terms agreed upon, 
issuing therefor the entire capital stock of the Water Works 
Company, the certificates purporting, and representing on 
their face that the shares are ^< paid in full of the value of 
fifty dollars per share," and thus putting them upon the 
market, is evidence of a fraudulent combination of the 
defendants to deceive purchasers of the shares, and gives the 
plaintiff* a right of action. 

I have given this branch of the case careful attention, and 
investigation. It is apparent from the evidence now before 
the Court, that if the canal possessed any value, it was very 
small in comparison with the amount of stock issued upon 
its basis. The Water Works Company doubtless could 
take the canal by purchase, and issue stock in payment for 
it, but the amount so issued to be consistent with honesty of 
purpose on the part of the corporation, should be reasonably 
proportionate to the actual value of the canal. The agree- 
ment itself under which the canal was purchased, and the 



256 SUPERIOR COURT REPORTS. 

Smock •. Henderaon €i oL 

stock issued, casts such grave suspicion upon the transaction 
that a court, when appealed to, would look carefully to the 
rights of all the parties then interested, if there were any 
who did not assent to it, and who might be injured by it 
In fact it can hardly be claimed that it could be sustained 
against such parties on any principles consistent with perfect 
Qood faith. 

The consideration named in the deed of conveyance, by 
which the canal passed to the Water Works Company, was 
two hundred thousand dollars. This was certainly fiur above 
any value that the canal, under any view of the plaintiff's 
evidence, (which is all that is before the CSourt, and for the 
purposes of this case the demurrer admits to be true,) can 
be found to possess. It is proper, however, in this connec- 
tion to say, that the fact that the canal owned by the Water 
Works Company has no value, does not necessarily show 
that the stock in the corporation is without value. Oijfbrd 
V. CarveU, 29 CaL, 589. 

Stock to the amount of five hundred thousand dollars was 
issued on receiving the conveyance of the canal. Of this 
the stockholders in the caned received two hundred and fifty 
thousand dollars, and by the terms of the agreement the 
defendants were to receive two hundred and fifty thousand 
dollars, ten thousand dollars when it was first issued, and the 
remaining two hundred and forty thousand dollars in por- 
tions as the construction of the water works progressed. 
Thus one-half of the stock originally issued was, by the 
terms of the agreement, to come, and did come back to the 
defendants, who authorized its issue. It did not come back 
to the Water Works Company, to be cancelled, and the 
stock reduced to that amount, but to be appropriated by tiie 
defendants to their own use. 

The evidence in the case shows, however, that the certificates 
of stocks issued to the defendants, Hendricks, and Henderson, 
are still in the possession of the officers of the company. 



IN SPECIAL TERM, 1872. 257 



Smock p, Henderson ei ok 



It was urged for the defendants, that the obligations they 
assumed, in the agreement of applying the proceeds of the 
sale of the bonds ^* at the rate of ninety cents on the dollar 
of the nomincd amount thereof to the construction, and 
putting in operation of water works," superintending the 
same, and seeing that the money was faithfully, and econom- 
ically applied, is a sufficient consideration to support the 
transfer of the stock to them. I do not think this view can 
be fully sustained. There is, of course, no evidence before 
the Court of the value to the stockholders of the guaranty 
thus made by the defendants, that the mortgage bonds should 
net ninety cents on the dollar, the defendants would, by the 
terms of their agreement, have to make up the difference. 
The diflference might amount to an important sum of money; 
it might be an insignificant amount, or none at all. As 
directors, they were under no obligations to make the guar- 
anty, and for making it they had a right to stipulate for a 
compensation mutually satisfactory to the parties interested. 
With the exception of the guaranty, most, if not all of the 
obligations assumed in the agreement, would devolve on 
them in their character as directors and trustees of the 
stockholders. As such, it was their duty to see that the pro- 
ceeds of the bonds were honestly, faithfully, and economi- 
cally applied to the purposes of the corporation, and the 
interests of the stockholders carefully guarded. Directors of 
a corporation organized for the purpose of making money, 
are not usually entitled to a compensation for their ordinary 
services. Angell & Ames on Corp., § 317. 

If to be compensated, however, the pay should be reason- 
ably proportioned to the services rendered, and the financial 
ability of the corporation. To take one-half of the capital 
stock could not be held reasonable, nor do I think even the 
guaranty made by the defendants makes such an amount 
reasonable. If the plaintiff had been an original subscriber 
to the stock of the company, or had owned his stock at the 
9 



fS& SUPERIOR CX)rRT RSPORTa 



xime of dib nmASttcdoA. ihoe voald be no qiiesdoii but that 
be vouid have bees dumgecL mud for die wioogfiil act of 
ibe de&fidaiit& bT vhich the Taloe of his stoek woohl haTe 
been lesooed. or desttorenL ther woaU have been liable. 

Bat who was injoied by thb lai^ iasoe of stock for whidi 
the eotpoiation leoeired bm little rafale? There were no 
stockholders, until the stockholdeis in die Ganal Company 
and the defendants became such by the iastie of the stock. 
They were all parties to the agfcement, all partidpated in 
the transaction, all agreed to the terms and basis upon which 
the stock issued. No one of these stockholders could com- 
plain that the others had cheated him. They all equally 
participated in the process^ by which the actual Yaloe of the 
stock was placed at a very low figure, and its nominal valoe 
very high. They being the owners of all the stock, no oot- 
sider was damaged, and as long as they held the stock them- 
^elve5. no one could be injured by reason of the stock being 
of value much under par. It is true that the plain till seems 
to have bargained for the stock before any stock was issued, 
but it was after the agreement with the Canal Company 
was made, while the agreement was being executed by the 
parties, and the purchase was not perfected until after all the 
stock had been isctueiK two hundred and fifty thousand dol- 
lars of it, to Woodrutf, and by him assigned to the stock- 
holders of the Canal Company, and by them surrendered for 
cancellation. It is claimed by the plaintiff that the agree- 
ment, and the entire transaction show a combination on the 
part of the defendants, to issue the stock, on the basis it was 
issued, thus creating a fictitious capital, and sell it in the 
market, as paid up stock, for a value it did not possess. 
There is no evidence showing that any stock had been pushed 
upon the market ; nor do I regard such evidence as material. 

Certificates of stock in an incorporated company are not 
negotiable instruments. They do not pass as negotiable 
notes, or bills of exchange. They are mere muniments of 



I 



IN SPECIAL TERM, 1872. 259 

Smock V. Henderson et al. 

title, showing that the owner is entitled to participate in the 
dividends, and profits of the corporation, in proportion to the 
number of shares he owns of its capital stock. ' The fact 
that it is represented on the face of the certificate as paid up 
stock, shows that the shares are not liable to farther calls. 
It can not be held to mean that the corporation has money, 
or property equal in value to the par value of the stock. 
Even if money amounting to the full face of the shares had 
been paid into the corporation to-day, it might be expended 
for something of no value to-morrow, or squandered in many 
ways by improvident directors and managers, and hence the 
statement that the stock is paid up, is not an indication that 
can at all be relied upon as fixing the value of the stock. It 
is not a material representation, and hence not one which a 
party has a right to rely upon. The stock in a corporation 
is personal property, or a chose in action, according to some 
authorities, and I find no authority for putting the sale of 
stock upon grounds differing in any essential particular from 
the sale of a chattel. Fraud may exist by reason of false 
representations made by the seller to induce a purchaser to 
buy, as well in the sale of shares of stock, as in the sale of a 
horse. If A, B, and C own a horse, they may combine to 
make false representations as to his qualities and value, in 
order to induce some one to buy. If they do so, and thus 
induce some one to purchase, they will be liable for the 
fraud. If the purchaser is not moved to make the purchase 
by the false representations, or if the false representations 
are not made at all, he can not recover, simply because there 
was a combination, and intention to commit the fraud. 
There is a large class of cases where directors, and managers of 
corporations have been held liable for deceit in the sale of 
shares. In all of them there was a combination, a purpose 
formed to put the shares on the market, and dispose of them 
for a value they did not possess. But as far as my investi- 
gations have extended, and I have examined nearly all the 



260 SUPERIOR COURT REPORTS. 

Smock 9, Henderson §i oL 

cases reported on this subject, the shares were put upon the 
market accohipanied with false representations as to the 
business alliairs of the corporation. False representations of 
the value of the property owned, the profits certainly to be 
realized, dividends already made, false entries upon the books 
of the corporation showing money, or property on hand, or 
false entries of subscriptions. In fact the cases present 
almost an endless list of means devised to deceive the public 
as to the value of shares. Such was the character of the 
case of Cross v. Sackettj 2 Bosw., 617, cited by the plaintiflT. 
It is more nearly allied to the present case than any I have 
met with. There property was taken, and shares issued for 
it greatly in excess of its vcdue. The corporation was known 
as the ^^ Gold Hill Mining Company." The shares were 
accompanied in the market with false statements of the 
value of the property upon which the shares were based, as 
well as false statements of the dividends already earned, by 
reason of which statements the plaintiff had been induced to 
purchase stock, to his great damage. It was held that he 
could recover. Bagshato v. Seymour^ 93 Eng., C. L., 873; 
BaWs case, 22 Beav,, 35 ; Ayer^s casCy 25 Beav., 515 ; Dw- 
ranty^s case, 26 Beav., 273 ; Ross v. Estates Investment Co., L. 
R. 3 Eq. C, 122 ; Worth's case, 4 Drew, 529 ; Gohard v. Bates, 
2 El. & Bl., 490; Smith's case, L. R., 2 Ch. App., 604; 
C/ark V. Dickson, 6 C. B. n. s., 453 ; Webster* s case, L. R., 
2 Eq. Cases, 741 ; Stewa, Cs case, L. R., 1 Ch. App., 574 ; 
Henderson v. Lacon, L. R., 5 Eq. Ca., 249, are English cases 
to the same purport, in all of which the offer of the shares 
for sale was accompanied with false representations. 

Of American cases may be cited in the same connection, 
and the list might be almost indefinitely extended, are the 
following : Robinson v. Smith et at, 3 Paige, 221 ; Cunning- 
ham V. Peli, 5 Paige, 606 ; Cazeaux v. Mali et at, 25 Barb., 
578 ; Mayne v. Griswold, 3 Sandf., 463 ; Kimmel v. Stoner^ 
18 Penn. St R., 155 ; Gifford v. Cartnll, 29 Cal., 589. 



IN SPECIAL TERM, 1872. 261 



Smock V, Henderson et al. 



In this case there is an entire absence of any false state- 
ment as to the amount of property held by the corporation, 
or the business affairs of the company. The shares bought 
by the plaintiff were offered in the market, and purchased by 
the plaintiff for fifty cents on the dollar. At the time of the 
purchase the plaintiff asked the President of the Company 
where the money was to come from that they proposed 
expending in laying down the pipes, and he was informed 
that they had borrowed 9100,000 to expend in laying down 
the mains. This was after the completion of the fraud, if 
any had been perpetrated by the directors, and the case of 
Mabey v. Adams^ 3 Bosworth, 346, is directly applicable. 
The complaint in that case was for false statements con- 
tained in the articles of association, and misrepresentations 
of the value of the stock made by the defendant, by which 
the purchaser was induced to buy. It was held he could not 
recover by reason of false statements in the articles of asso- 
ciation, and as the other causes of complaint grew out of 
violations on the part of the defendant, as a director, of cer- 
tain provisions of the statute, by which the value of the 
stock was depreciated, all of which occurred prior to the 
purchase of the stock by the plaintiff, and it was held he 
could not recover, having become a purchaser after the 
offence was committed which depreciated the stock, and no 
fraudulent inducements having been held out to him to pur- 
chase. 

The Court says : " The fact that the stock which he pur- 
chased is less valuable than it otherwise would have been, 
constitutes no loss to him, since he must be presumed in the 
absence of any fraudulent inducement held out to him to 
purchase, to have given only what the stock was worth at 
the time. If a man purchase a horse which has been injured 
in the hands of its owner, he certainly does not acquire by 
the purchase a right of action against the wrong-doer. Such 
right belongs to him who owned the horse when the wrong 
10 



262 SUPERIOR COURT REPORTa 

Smock 9, HeodenoB ti oL 

was committed, and does not pass with the horse to the 
purchaser. A man boys stock as he does every other kind 
of personal property, (under certain qualifications not neces- 
sary here to be stated,) at his own risk as to the quality." 

In the same connection, I would call attention to the case 
of Moffat Sf OurHs v. Winslaw eialj7 Paige, 124. 

In the absence, therefore, of any false representations by 
which the plaintiff was induced to make the purchase, after 
the stock had already been depreciated by the acts of the 
defendants, the demurrer is well taken to the evidence, and 
must be sustained. 



NoTi. — This case was affirmed bj the Court %i General Term, March, 
1873, without anj opinion being filed. — [Rbporto 



IN GENERAL TERM, 1873, 263 



Crane et al. v. Lord. 



IN GENERAL TERM, 1873. 



Martin H. Crane et al., Appellants v. John M. Lord. 
Warranty — implied. 

Where a manufacturer agrees to manufacture and furnish any article for a 
special purpose, and it is supplied and sold for that purpose, the law 
implies a warranty that it is reasonably fit for that purpose. 

Taylors, for appellants. 

HenilrickSj JBord if Hendricks^ for appellee. 

Rand, J. — This is a sait apon an account for a furnace 
put in defendant's house by pbintiflfs for the purpose of heat- 
ing the same. 

Defendant answers in three paragraphs. The two first 
set up that plaintiffs expressly warranted that the furnace 
would sufficiently heat two halls, seven rooms and a con- 
servatory attached to the house, and would require less fuel 
than the furnace already in the house ; and it is alleged that 
the plaintiffs' furnace put into defendant's house required 
more fuel than the one before used, and that it would not 
sufficiently heat said two halls, seven rooms and conserva- 
tory, and as soon as defendant discovered that to be the 
case he immediately notified plaintiffs and requested them 
to take the furnace out The second paragraph, in addition, 
avers that the furnace was worthless. The third paragraph is 
in effect upon an implied warrantee. It alleges that the plain- 
tiffs were manufacturers of furnaces, and knowing that 
defendant wished a furnace for the special purpose of 
heating his house, they undertook to furnish one for that 
purpose, but the one furnished did not reasonably fulfill the 



264 SUPERIOR COURT REPORTS. 

Crane et al, v. Lord. 

purposes for which it was intended, and by reason thereof the 
defendant had sustained damages in the sum of 9500.. 

There were demurrers to each paragraph of this answer 
which were overruled and excepted to. No defects have 
been pointed out in either of them, and we discover none« 
If, however, the first and second are bad, the plainti& are 
not injured, because the Court trying the case expressly 
found there was no express warrantee. Issues were formed 
on these paragraphs, and the Court found under the third 
paragraph that there was an implied warrantee, and allowed 
defendant damages for the breach thereof. 

If there was no error in this then the case must be 
affirmed. 

Section 371, in Story on SaleSj reads as follows: 

Thirdly. Upon an executory contract to manufacture an 
article, or to furnish it for a particular use or purpose, a war- 
ranty will be implied, that it is reasonably fit and proper for 
such purpose and use, as far as an article of such a kind 
can be. * * * * * Thus, when copper sheathing was 
ordered for the purpose of sheathing a vessel and the sellers 
were to manufacture it, and it proved to be wholly worth- 
less for such a use, it was held that, although no fraud was 
imputable to the vendors, yet as the vendors knew that it 
was to be applied to the purposes of sheathing a vessel, a 
warranty was implied on their part, that it was fit for such 
purpose." 

Parsons, in his works on contracts, vol. 1st, page 448, says: 
*^ If a thing be ordered of the manufacturer for a special pur- 
pose, and it be supplied and sold for that purpose, there is 
an implied warranty that it is fit for that purpose. This 
principle has been carried very far. it must, however, be 
limited to cases where a thing is ordered for special purposes, 
and not applied to those where a special thing is ordered, 
although this be intended for a special purpose." 



IN GENERAL TERM, 1873. 265 

Crane et al, v. Lord. 

In the case of BretUan v. DaviSy 8 Ind. 317, our Supreme 
Court has fully recognized the doctrine, that where a manu- 
facturer undertakes to furnish a manufactured article for a 
particular purpose, the law implies a watrantee that it is 
reasonably fit for that purpose. 

In the case at the bar the evidence shows that plaintiffs 
were manufacturers of furnaces^ and that the defendant 
wanted one suitable to heat two h&lls, seven rooms, and a 
conservatory attached thereto ; that the plaintiffs first exam- 
ined the house, and with a full knowledge of what defendant 
wanted, undertook to furnish a furnace for that purpose — that 
they furnished one ; and that it did not reasonably fulfill that 
purpose. 

It is true there is some conflict in the evidence on some 
of these points, but the Judge trying the case had the wit- 
nesses before him, and could best judge of their credibility. 
We cannot disturb that finding, and we may add that we 
concur in the conclusions he came to on the evidence. 

It is contended that the last clause of the paragraph 
quoted from Parsons' SuprOy '< where a special thing' is 
ordered, although this be intended for a special purpose, 
there is no implied warranteey^ is applicable to this case. We 
do not so understand it If the defendant had gone to the 
plaintiffs and selected one of their furnaces already manufac' 
turedy then that principle would be applicable. But that 
was not the case, as we have already shown. 

The judgment at Special Term is affirmed. 



KoTX. — ^e law implies in sales of articles by the manufacturer of them 
that they should be of merchantable quality. Laing v. Fidgeon, 6 Tkiunt 
108; Gardner v. Oraif, 4 Camp 144, 169. 

This rule is based on the manufacturer's means of knowledge, and the 
presumption of his actual knowledge of any defect, and is interpreted to 
include sales of other articles to be furnished, or which the purchaser had 



266 SUPERIOR COURT RBPORT& 

CrmiM et oL 9, Lord. 

no opportQuity to iofpect. Wtarmg t. Mmmm, 18 Wmtd, 43ft ; FUk t. JbM- 

berry, 22 lU , 2»iL 

Another, or teoond exceptional rule in law, requires tbnt the thing lold 
should he reeeonahly fit for the purpoee for which the Tender knew it wit 
intended hy the yendee, although inch purpose wm not named In the war- 
ranty. 

This rule is now ettahlished in England, and it ftiUy recognised in New 
York, and other States. Sedf^wick on Meatmrt of DamagtSy 828^ H. 

See, also, cases there cited, holding that the " djsmages, flowing h^yond 
the hounds which limit the responsihility for any ordinary breach of war- 
ranty, include compensation for the mischief resulting from the fiulure of 
the article warranted, to answer the special purpose to which it is applied." 

A ftimace having been deliyered and put up on the following order: 
**Send me your patent hopper, and apparatus to fit up my brewing copper 
with your smoke-consuming ftimace," was found not to answer the purpose 
of a brewer. " Held^'^ there was no implied warranty it should be fit for 
the purposes of a brewery, and that the defendant having defined the par- 
ticular machine wanted, the plaintiff fulfilled his contract in sending it" 
ChanUr ▼. Hopkins, 4 Mteaon ^ WeUtnfs lUparta, Ex. 899. 

Upon all Miles of personal property by one in possession, the law gener- 
ally implies a warranty. See Chiity on (hntraeiSj p. 447, ». 1. 

A machinist soiling n worthless machine for a good one^ Is liable whether 
aware of the defect or not. 1 Meigs, 156. 

*' In case of an executory contract to Aimish an article for a certain pur- 
pose, the article may be returned within a reasonable time after it has been 
found not to satisfy the contract, although the contract contains no stipula- 
tion for such return." Freeman v. Cluie, 8 Barb, 424, and in case of articles 
manufaetured for particular purposes, an implied warranty exists that they 
are reasonably fit and proper for such purpose. 6 Bing, 688, & C 8, 3f . ^ 
P. 155; HouHird ▼. Hoag, 28 WendeO, 850; Moses ▼. Afeod; 1 Demo, 878; 
Bluett V. Osbfrme^ 1 Stark /2. 884; 4 J^. # C. 115; 1 C. # />. 184 ; Ckitty on 
Contracts, p. 461, et seq; 2 Camp. 891 ; 8 Camp 226 ; Beals ▼. Olmstead, 24 
Vermont, 114 ; Gray v. Cox, 6 Dowling, and Rylands K, B. Reports, 200; 8 
do^ 220; 4 Barnwell j* Cresstoell Reports, 108; 6 c^., 458; 1 Oarrington # 
Paynes Reports, 184; 8 Maude ^ PoUoeks Law of Shipping, 166; 2 Scott, 
(New Reports) 496; 2 Manning ^ Granger's Reports, 279; Smithes Merean^ 
tile Law, 680 and n. 

If the buyer relies upon the seller's judgment, the latter impliedly war- 
rants that the thing furnished shall bo reasonably fit and proper for the 
purpose for which it is required — Chitty on Qmtraets, p. 461, and note x, — 
whether he is the manufacturer of the article or not Same — Note 8. 

The burthen of proof is on the purchaser, in all cases, to prove the breach 
of warranty, in reduction of the damages — to show that the quality of the 



IN GENERAL TERM, 1873. 267 

Crane eioLv. Lord. 

article does not correspond with the warranty. Dorr v. Fisher^ 1 Cfushing, 
274. 

The defendant's knowledge of the defect, or bad quality of the goods, 
need not be proved — WiUiamaon j- AUiton^ 2 E<ut^ 466— «nd in an action 
for fraud in the sale, the knowledge of defect and bad quality must be 
brought home to the vendor. Bartholomew v. Buthnellf 20 Oonn^ 271 ; Vail 
T. Strong, 10 Vermont^ 467; Kmg$hwy v. TdyUr, 29 Afotfis, 508. See, alio, 18- 
rMiItU, 449. 

The rule' of damages for not furnishing manufactured articles according 
to contract, is the difference in value between those actually furnished and 
such as should have been, unless they were to have been furnished for a 
particular use. 18 G^ay, 429. See 27 Vermont, 227—282; 9 Wend^ 20; 9 
OmA., 89 

A purchaser, when sued for price of goods, may set up breach of warranty 
as a defense, by way of recompense, or counter claim, yet he is not bound 
to do so. He may, after recovery o2 a judgment for the price, bring an 
action against the vendor for the price. Barth v. Burt, 48 Barb* 
£Bkpobte&. 



IN GENERAL TERM, 1873. 



Sophia Kirtz v. Robert Spauoh bt al.. Appellants. 
Phagticb — 

SURBTY — 

Witness — 

Sustaining a demurrer to a paragraph of answer is not available as error, 

if the same facts are set up in another paragraph, upon which issue is 

joined and the cause tried. 
A plaintiff is not compelled by the provisions of Section 41 of the code, to 

take a several judgement against one of the defendants before the 

rights of all are tried. 
In a suit upon a joint and several promise, while a defendant, who claims to 

be a surety of the other defendant, is resisting a recovery by setting up 



268 SUPERIOR COURT REPOBTa 

Kirtz V. Sp«ugh ei oL 

defenset going to the merits of the whole ease, he cannot oompUun 
because the proceeding ia not more diligently proeeonted against his 
co-defendant. 

Where a witness is called to prove facts supposed to be CsTorable to the 
party calling him, and the witness having testified that thej did not 
exist, the party calling him cannot then introduce testimony to show 
that the witness had previously made statements tending to show that 
the facts did exist. The party calling such witness is not prednded 
fh>m calling other witnesses to prove that such £scte do exist. 

K T. JohnsoHy for appellants. 
MUchel if Ketchamy for appellee. 

Blair, J. — This is a suit by Sophia Kirtz against Robert 
Spangh, and Charles S. Boynton, on a promissory note, 
made by the defendants to the plaintiff, dated January 12, 
1870, dne one day after date. 

The defendant Spaugh suffered a default Defendant 
Boynton filed an answer in eight paragraphs. 

The first was a general denial. The second, payment by 
his co-defendant, Spaugh. Third, that he (Boynton) execu- 
ted the note without any consideration. Fourth, that the 
consideration of the note moved entirely to his co-defendant, 
Spaugh, and he signed it only as surety for Spaugh, as was 
well known to the plaintiff, and that afterwards, on the first 
day of January, 1871, the defendant Spaugh paid the plain- 
tiff $31, being the interest in full to that date, and the plain- 
tiff then agreed to, and with the defendant Spaugh, without 
the knowledge, or consent of the defendant Boynton, in con- 
sideration of Spaugh agreeing to pay the plaintiff ten per 
cent interest on the note for the next six months, and pay 
the principal at the end of that period, that he would extend 
the time of payment for six months, to wit : until the first 
day of July, 1871. The fifth sets up a similiar extension of 
time from the first day of July, 1871. The sixth sets up a 
verbal notice to the plaintiff to proceed to collect the note 




IN GENERAL TERM, 1873. 269 

Kirtz V. Sp«ugh et al, 

and a parol promise of the plaintiff to release the defendant 
Boynton in consideration that Spaugh had agreed to pay 
large interest on the note, and that the plaintiff had 
agreed to, and had extended the time of payment of said 
note, and also in consideration that Boynton would not com- 
pel the plaintiff* to sae Spaugh. 

To this last paragraph a demurrer was sustained by the 
Court, and the proper exception entered by the defendant 

In the first place the notice to sue being only verbal, did 
not place the plaintiff* under any obligation to institute suit 
on the note, (2 6. & H. p. 306. !See 672) and hence the 
defendant Boynton yielded no right he had acquired to have 
suit brought, nor the plaintiff any obligation she was under 
to bring suit against Spaugh, and therefore this did not make 
any consideration for the release claimed. The other alle- 
gations being merely general in their terms, that Spaugh had 
agreed to pay '^ large interest" on the note, and that the 
plaintiff* had extended the time of payment of the note, 
without setting up any valid agreement by which the time 
bad been extended, furnish no consideration to support the 
plea, and the action of the Court in sustaining the demurrer 
was therefore right. 

A seventh paragraph of answer alleges a notice in writ- 
ing, after the maturity of the note, requiring the plaintiff to 
institute a suit on the note, and avers that the plaintiff neg- 
lected for an unreasonable time to institute any suit, &c. 

No question is raised in connection with the eighth para- 
graph of answer. 

Issues were then joined upon the diff*erent paragraphs of 
answer, after which, on the 18th of March, 1872, a supple- 
mental answer was filed by the defendant, alleging notice in 
writing, given the plaintiff in December, 1871, to forthwith 
institute an action against Spaugh, and charging that if the 
plaintiff had diligently pursued her remedy the debt could 



270 SUPERIOR COURT REPORTa 

KirU V. Spaugh et aL 

have been made off Spaagh, but that the plaintiff neglected, 
to bring such suit until the 13th day of January, 1872, when 
suit was instituted, and the defendants Spaugh and Boyn- 
ton each served with process more than ten days before the 
first day of the February term of this Court, and on the 
second day of said term of Court, the defendant Spaugh 
was called, and defaulted, since which time to the I3ih day 
of March, 1872, no further proceedings have been taken 
against said Spaugh, wherefore the defendant daims he is 
discharged, &c. 

A motion of the plaintiff to strike out that part of the 
supplemental answer that alleged the taking of the default 
against the defendant Spaugh, and a failure of the plaintiff 
to proceed against him, was sustained by the Court A 
demurrer was then sustained to the remaining portion of the 
answer. 

These rulings are assigned as errors. There was no error 
of which the defendant can complain in sustaining the 
demurrer, after the motion to strike out had been sustained, 
for the answer was then the same as the seventh paragraph 
upon which issue had already been joined, and upon which 
the question arising upon the notice to sue was tried. 

Was there any error in striking out that part of the answer 
that alleged a failure to proceed to judgment against Spaugh 
after he had made default? 

We think not On the same day that Spaugh was 
defaulted, the defendant Boynton appeared, and was ruled 
to answer. On the next day he filed an answer in eight 
paragraphs presenting defenses in almost every conceivable 
shape, one a general denial, which was not withdrawn until 
after the filing of the supplemental answer, and another that 
the note had been fully paid by Spaugh. 

The argument of the defendant proceeds upon the theory 
that the note being joint and several, the plaintiff was com- 



IN GENERAL TERM, 1873. 271 

Kirtz V. Spaugh et oi. 

pclled, by virtue of the notice, immediately upon the default 
of Spaugh, to proceed to judgment against him. The third 

clause of section forty-one, 2 G.& H. page 66, urged upon our 
attention by the defendant as supporting his position, reads 
as follows: '< If all the defendants have been served, judg- 
ment may be taken against any, or either of them severally 
when the plaintiff would be entitled to judgment against 
such defendant or defendants, if the action had been against 
them, or any of them alone." 

The entire context of the section of which the above is a 
part, shows that its provisions are for the benefit of plain- 
tiffs, and gives them privileges which they may or may not 
avail themselves of, and we do not think that even in a case 
where the rights of other parties may be affected, a plaintiff 
can be compelled to proceed to take a several judgment 
against one of the defendants before the rights of all are 
tried. If the note had been paid by Spaugh as solemnly 
alleged by Boynton in his answer, good faith to all the parties 
would seem to indicate that the issue should be tried before 
proceeding to judgment against Spaugh, for although, under 
the laws, the default of Spaugh admitted the indebtedness 
against him, yet if it should turn out in proof that the debt 
bad been paid by him, judgment ought not to be given 
against him. The plaintiff was not compelled to proceed to 
present her proof, and case until the whole of it could be 
presented at once, and while the defendant was resisting a 
recovery by the plaintiff by setting up and urging defenses 
going to the merits of the whole case, it does not lie in him 
to complain because the same proceeding was not more dili- 
gently prosecuted against his co-defendant 

The overruling of a motion for a new trial is also assigned 
for error. 

A great many reasons are set out in the motion, but as 
the greater portion of them are without force, we will only 



270 SUPERIOR COURT REPORTa 

KirU V. Spaugh et al. 

haye been made off Spaugh, bat that the plaintiff neglected, 
to bring such suit until the 13th day of Janaary, 1872, when 
suit was instituted, and the defendants Spaugh and Boyn- 
ton each served with process more than ten days before the 
first day of the February term of this Court, and on the 
second day of said term of Court, the defendant Spangh 
was called, and defaulted, since which time to the I3ih day 
of March, 1872, no further proceedings have been taken 
against said Spaugh, wherefore the defendant daims be is 
discharged, &c. 

A motion of the plaintiff to strike out that part of the 
supplemental answer that alleged the taking of the default 
against the defendant Spaugh, and a failure of the plaintiff 
to proceed against him, was sustained by the Court A 
demurrer was then sustained to the remaining portion of the 
answer. 

These rulings are assigned as errors. There was no error 
of which the defendant can complain in sustaining the 
demurrer, after the motion to strike out had been sustained^ 
for the answer was then the same as the seventh paragraph 
upon which issue had already been joined, and upon which 
the question arising upon the notice to sue was tried. 

Was there any error in striking out that part of the answer 
that alleged a failure to proceed to judgment against Spaugh 
after he had made default? 

We think not On the same day that Spaugh was 
defaulted, the defendant Boynton appeared, and was ruled 
to answer. On the next day he filed an answer in eight 
paragraphs presenting defenses in almost every conceivable 
shape, one a general denial, which was not withdrawn until 
after the filing of the supplemental answer, and another that 
the note had been fully paid by Spaugh. 

The argument of the defendant proceeds upon the theory 
that the note being joint and several, the plaintiff was com* 



\ 



IN GENERAL TERM, 1873. 271 

— , ' — 

Kirtz V. Spaugh ei al. 

pciled, by virtue of tbe notice, immediately upon the default 
of Spaugh, to proceed to judgment against him. The third 

clause of section forty-one, 2 G.& H. page 66, urged upon our 
attention by the defendant as supporting his position, reads 
as follows: '^ If all the defendants have been served, judg- 
ment may be taken against any, or either of them severally 
when the plaintiff would be entitled to judgment against 
such defendant or defendants, if the action had been against 
them, or any of them alone." 

The entire context of the section of which the above is a 
part, shows that its provisions are for the benefit of plain- 
tiff's, and gives them privileges which they may or may not 
avail themselves of, and we do not think that even in a case 
where the rights of other parties may be affected, a plaintiff* 
can be compelled to proceed to take a several judgment 
against one of the defendants before the rights of all are 
tried. If the note had been paid by Spaugh as solemnly 
alleged by Boynton in his answer, good faith to all the parties 
would seem to indicate that the issue should be tried before 
proceeding to judgment against Spaugh, for although, under 
the laws, the default of Spaugh admitted the indebtedness 
against him, yet if it should turn out in proof that the debt 
bad been paid by him, judgment ought not to be given 
against him. The plaintiff* was not compelled to proceed to 
present her proof, and case until the whole of it could be 
presented at once, and while the defendant was resisting a 
recovery by the plaintiff* by setting up and urging defenses 
going to the merits of the whole case, it does not lie in him 
to complain because the same proceeding was not more dili- 
gently prosecuted against his co-defendant 

The overruling of a motion for a new trial is also assigned 
for error. 

A great many reasons are set out in the motion, but as 
tbe greater portion of them are without force, we will only 



272 SUPERIOR COURT REPORTS 

Kirtz V. SpAUf^h et al. 

notice those embraced in the assignment of errors, and dia- 
cuss«ed in the brief of counsel. 

The bill of exceptions contains some ten or twelve pages 
of matter, setting out an offer to prove statements made on 
a former trial of the cause by the plaintiff, when testifying 
as a witness. 

The first offer was made before the plaintiff was present 
at the trial, but afterwards, her presence having been procured, 
the Court, at the request of the defendant, having given time 
to bring her in, she was examined as a witness for the defend- 
ant Bovnton. 

The bill of exceptions does not state clearly by whom the 
plaintiff was introduced as a witness on the former trial. If 
introduced by the defendant Boynton then it was clearly 
incompetent for him to prove on the last trial what she, as 
his own witness, had testified to on the former trial. In the 
absence of any showing to the contrary, we must prenume 
in favor of the ruling of the Court, that the plaintiff was 
introduced and testified as a witness for the defendant on 
the former trial. On the trial the plaintiff say?, as her evi- 
dence in the bill of exceptions shows, that she was examined 
as a witness for defendant Boynton on the former trial. 

After the plaintiff was introduced by, and examimed as a 
witness for the defendant^ the offer was again renewed and 
a series of questions propounded to the plaintiff. These were 
for the purpose of discrediting her testimony by showing 
that at the former trial the witness had made other, and 
different statements. 

The plaintiff seems to have been called as a witness by 
the defendant to prove that an agreement had been made 
between the plaintiff, and the defendant Spaugh to extend 
the time of payment of the note in suit 

Whether we regard the proof offered as tending to con- 
tradict, or impeach the witness, or as admissions made by 



IN GENERAL TERM, 187a 273 



Kirtz «. SpAOgh et al. 



the piaintiflT, we think the raling of the Court was right. 
The iatroduction of admissions in testiniony must be without 
violating any rules of evidence which apply when a party is 
constituted a witness^ CarUr v Buckner^ 3 Black/. 314; 
Carter v. Edwards, 16 Ind. 238. 

It is urged on behalf of the defendant that a party may 
in the language of the statute, always contradict bis own 
witness, ^by showing that he has made statements different 
from his present testimony.'' 

The witness having been called to prove certain facts sup- 
posed to be favorable to the party calling her, and the wit- 
ness having testified that they did not exist; it has been 
held under a statute almost identical with ours, that the 
case does not fall within the reason or policy of the rule 
which will allow the witness to be contradicted by evidence, 
that she had previously made statements agreeing with the 
proof desired to be made by the party calling her. Camp v. 
The CommanweaUh, 2 Met. (JTra.), 17; McVey v. Blairj7 
Ind. 590. 

The party calling such witness is not precluded from call- 
ing other witnesses to prove that such facts do exist. 1 
Cheenleaf on Evidence, (12 Ed.) p. 491, ^44 a, and authoru 
ties there cited. 

The whole case seems to show an attempt on the part of 
the defendant to make out his entire defense by proof of 
testimony introduced by himself on a former trial. 

We have examined the evidence, and think it fully sup- 
ports the finding and judgment, and cannot believe that the 
evidence offered could in any event have changed the result, 
even if it had been admitted. 

The judgment is affirmed. 



KoTS. — A surety will not be discharged by mere forbearance-- (7oriiif t. 
MdmariU^ 6 Bing, 94 ; 5 Bing, N, P, 728, — unless there be some stipulation in 



276 SUPERIOR COURT REPORT& 

Kirts «. Spaugh €i aL 

the truth of any particalar fkot by any other eompelaot teitiniony in dinel 
contradiction to what hit own witness might haTe teitifled, but whetlMr ha 
can prove that the witness had prcTiously stated the Ikoti in diflhrent man- 
ner ia. according to Qreenlea^ (1 Sec 444) a queatioii upon which thera 
exirts some diversity of opinion." 

** What a witness hath been heard to say, at any tim% may ha gireii in 
evidence^ in order either to invalidate or coniinn the teatimony mbkit ha 
gives in Court."— ^M^tiw 2, CA. 46, Ste. 14- but this haa not always been 
allowed to a party in relation to his own witness. See 1 QtttanUmf tm A^ 
S9C 442, el Mq^ amd notea thereto. Also, in the case of CbmmomoeaUh v. 
Welch, 4 Gray, 586, 687; Holbrook v. Mix, 1 EeL, amUh, 164; AUxamUrY. 
Oibmm, 2 Ocunp^^b^; Lawrence Y. Barker, 6 fFefUt, 806 ; Br«0«|f v. JSseardo, 
8 Bing^ 67; Jaekaon v. Leek, 12 WmtL, 106; S^peiieer v. Wkiie, 1 JHrtieU, R. 
289 ; HaU v. Jlauffhiofi, 87 Maine, 411 ; Leav^ v. Dearborn, 19 N. H^ 861. 

In a recent English case, it was held, that if a witness unexpectedly ffivea 
evidence adverse to the party calling him, the party may ask him if he has 
not, on a particular occasion, made a contrary statement, and the queatioii 
and answer may go to the jury with the rest of the evidence ; the Judge 
cautioning them not to infer from the question alone that the fhot suggested 
in it is true. See Melhunah v. OoUier, 16 AtL i EL, 878; v. a.— [Bkpoi 



IN GENERAL TERM, 1873. 



Lewis W. Habbelman and Oramel F. Watson, Appellants, 
V. Simon Yandes, James H. MoKernan and 

WiNSLow 8. Pierce. 

Record — relation of assignee to — 
Lien — holder of with what chargeable — 
Parties — to proceedings of foreclosure — 
Assignee — known and unknoum to record. 




IN GENERAL TERM, 1873. 277 

Hasselman and Watson v, Tandea, McKeman and Pierce. 

A party holding a secret, or unknown lien, or the unknown assignee of a 
known lien on mortgaged property, is chargeahle with such diligence 
as will bring home notice of his lien to the holder of the older mort- 
g^e, and a purchaser under a senior mortgage will not be effected by 
such lien. 

The rule that all junior incumbrancers must be made parties to the proceed- 
ings of foreclosure, or their rights to redeem will not be barred, 
extends to such incumbrancers as are shown of record, or of which 
the party seeking a foreclosure has notice. 

The assignee of a junior mortgage cannot redeem ft*om a purchaser under 
a senior mortgage, who has had no notice of such assignment, nor is 
such purchaser effected by the fact that such unknown assignee was 
not made a party to the proceedings of foreclosure, for the purchaser is 
chargeable only with notice of what may be shown of record. 

PorteTj Harrison 8f HineSj for appellants. 

Rand, J. — This was a suit in which the plaintiffs seek, as 
holders of a junior mortgage, to redeem certain real estate 
in the complaint described, which is held by defendants under 
a Sheriff's deed, by foreclosure, and sale of the real estate 
under an older mortgage. The Court at Special Term sus- 
tained a demurrer to the complaint, and rendered judgment 
for defendants, and plaintiffs have prosecuted this appeal and 
seek a reversal of the judgment. 

The complaint states that one Matthew B. Tilberry was, 
on the 21st day of January, 1K66, the owner of the real 
estate in controversy, and on that day he mortgaged it to 
the defendants Yandes, McKeman and Pierce, to secure a 
debt to them. Afterwards Tilberry conveyed said real 
estate, and by several mesne conveyances, the title was on 
the 23d day of March, 1867, vested in one Henry Weber, 
and on that day he mortgaged it to one Thomas Brooker to 
secure several notes he owed him ; that on the 15th day of 
April, 1867, said Brooker endorsed said notes and mortgage 
to plaintiffs, and that they ever since have been the owners 
thereof ; that afterwards, to wit : on the 6th day of May, 
1868, said Yandes, McKeman and Pierce, instituted a suit 



276 SUPERIOR COURT REPORTS. 

Kirtz V. Spaugh ei oL 

the truth of any particular fkot by any other compelaot teitimon j in dinel 
contradiction to what his own witneae might have teftiiied, but whether he 
can prove that the witness had previously stated the Ikoti in diflbrent mas- 
ner is. according to Qreenlea^ (1 Sec. 444) a question upon which there 
exists some diversity of opinion." 

** What a witness hath been heard to say, at any time, may be given in 
evidence^ in order either to invalidate or confirm the testimony whidi he 
gives in Court."— ^(twiUiw 2, CA. 46, &e. 14— but this has not always been 
allowed to a party in relation to his own witness. See 1 QtttanUmf tm A^ 
S§c, 442, ei se^, amd notes thereto. Also, in the case of OommomoeaUk v. 
Weieh, 4 Gray, 586, 687; HoU^rook v. Mix, 1 E(L, SmUk, 164; AlexamderY. 
Oihaonf2 09nq>^ 555; Lawrence y. Barker, b Wend^ d05 ; BraO^ y. Beoardo, 
8 Bing,, 67; Jaekaon v. Leek, 12 Wend,, 106; Spencer v. WhiU, 1 JredM^ R. 
289 ; HaU v. Haughion, 87 Maine, 411 ; Leavy v. Dearborn, 19 N. H^ 861. 

In a recent English case, it was hold, that if a witness unexpectedly gfives 
evidence adverse to the party calling him, the party may ask him if he has 
not, on a particular occasion, made a contrary statement, and the questioa 
and answer may go to the jury with the rest of the evidence; the Judge 
cautioning them not to infer from the question alone that the ftct suggested 
in it is true. See Melhuieh v. OoUier, 16 Ad. # El., 878 ; v. s.— [Bkpobtbu 



IN GENERAL TERM, 1873 



Lewis W. Hasbelman and Oramel F. Watson, AppellantSi 
r. Simon Yandes, James H. McKernan and 

WiNSLOw S. Pierce. 

Record — reUUion of assignee to — 
Lien — holder o/, with what chargeable — 
Parties — to proceedings of foreclosure — 
Assignee — known and unknown to record. 




IN GENERAL TERM, 1873. 277 

Hasselman and Watson v. Tandea, McKeman and Pierce. 

A party holding a secret, or unknown lien, or the unknown assignee of a 
known lien on mortgaged property, is chargeahle with such diligence 
as will hring home notice of his lien to the holder of the older mort- 
g^e, and a purchaser under a senior mortgage will not he effected by 
such lien. 

The rule that all junior incumbrancers must be made parties to the proceed- 
ings of foreclosure, or their rights to redeem will not be barred, 
extends to such incumbrancers as are shown of record, or of which 
the party seeking a foreclosure has notice. 

The assignee of a junior mortgage cannot redeem from a purchaser under 
a senior mortgage, who has had no notice of such assignment, nor is 
such purchaser effected by the fact that such unknown assignee was 
not made a party to the proceedings of foreclosure, for the purchaser is 
chargeable only with notice of what may be shown of record. 

Portefj Harrison 8f Hines^ for appellants. 

Rand, J. — This was a suit in which the plaintiffs seek, as 
holders of a junior mortgage, to redeem certain real estate 
in the complaint described, which is held by defendants under 
a SherifTs deed, by foreclosure, and sale of the real estate 
under an older mortgage. The Court at Special Term sus- 
tained a demurrer to the complaint, and rendered judgment 
for defendants, and plaintiffs have prosecuted this appeal and 
seek a reversal of the judgment. 

The complaint states that one Matthew B. Tilberry was, 
on the 21st day of January, 1K66, the owner of the real 
estate in controversy, and on that day he mortgaged it to 
the defendants Yandes, McKernan and Pierce, to secure a 
debt to them. Afterwards Tilberry conveyed said real 
estate, and by several mesne conveyances, the title was on 
the 23d day of March, 1867, vested in one Henry Weber, 
and on that day he mortgaged it to one Thomas Brooker to 
secure several notes he owed him ; that on the 15th day of 
April, 1867, said Brooker endorsed said notes and mortgage 
to plaintiffs and that they ever since have been the owners 
thereof; that afterwards, to wit: on the 6th day of May, 
1868, said Yandes, McKernan and Pierce, instituted a suit 



278 SUPERIOR COURT REPORTS. 



HftMelman and Watton v. Tandes, McKeman and PSeice. 



in the Marion Common Pleas Coart against Matthew B. Til- 
berry and Caroline Tilberry, his wife; Henry Weber and 
Thomas Brooker, seeking to foreclose their said mortgage, and 
sach proceedings were had therein, that a decree of foredosare 
and sale was rendered, and afterwards, to wit: on the 18th 
of June, 1869, the Sherifi of Marion County sold said real 
estate under said decree, and said Yandex, McKernan and 
Pierce became the purchasers thereof for the amount of 
their debt, and have received a SheriflPs deed for said real 
estate. It is further stated that these plaintiflb were not 
made parties to said suit, and had no notice of it. 

It is further alleged that plaintiffs foreclosed the mortgage 
endorsed to them by Brooker, but that they did not make 
Yandes, McKernan and Pierce, parties, because they were 
senior incumbrancers and not necessary parties ; and that said 
real estate was sold by the Sheriff under this decree, and 
they purchased the same in satisfaction of their said mort- 
gage debt, and that they now hold this Sheriff's deed there- 
for ; that they tendered to defendants the amount of their 
mortgage, interest and costs, and demanded a redemption of 
said real estate from said Sheriff's sale under Yandes, Mc- 
Kernan and Pierce mortgage and decree, but that said Yan- 
des, McKernan and Pierce denied the plaintiffs' right to 
redeem, and therefore plaintiffs institute this suit and bring 
the money tendered into Court, and pray that they be per- 
mitted to redeem, &c. 

Copies of the notes and mortgage are made part of the 
complaint, but they do not show that they have been en- 
dorsed or assigned. There is no allegation in the complaint 
that the mortgage was assigned on the record in the 
Recorder's office, or that the defendants were notified that 
the plaintiffs were the holders of the notes and mortgage. 

We have statutes authorizing the recording of mortgages 
and when recorded they are notice to all parties interested. 



^ 



IN GENERAL TERM, 1873. 279 

Hewelman and Watson v. Tandet, McKernan and PSeroe. 

We have no statute anthorizing the recording of the assign- 
ment of mortgages, and if recorded, that it shall be notice 
to all interested parties. 

We have a statute which says : '^ The recording of the 
assignment of a mortgage shall not be deemed, of itself, 
notice to a mortgagor, his heirs, or personal representatives, 
so as to invalidate any payment made by them to the mort- 
gagee, or any assignee, before actual notice of such assign- 
ment 2 G. & H., 356. 

The question presented by the record is, can the assignee 

of a junior mortgage, re^em from the purchaser at Sheriff's 

sale, under a decree of foreclosure of an older mortgage, 

when said junior mortgage has been assigned before the 

institution of the suit to foreclose the older mortgage, and said 

assignee was not made a party, and when there was no 
assignment of record, and the holder of the senior had no 

notice of the assignment of the junior mortgage ; and where 

the junior mortgagor himself was made a party thereto? 

It is a general rule that all junioiP incumbrancers must be 
made parties to the proceedings of foreclosure, or their rights 
to redeem will not be barred. 

But we apprehend that this rule extends to such incum- 
brances as are shoA^Mi of record, or of which the party, seek- 
ing a foreclosure, has notice. 

There is another general rule that purchasers, without 
notice, shall not be affected by a secret or unknown lien. 

We have been referred to the cases of Godfrey v. Chad- 
well^ 2 Vernon^ 601, and Mount v. Weston^ same^ 663, as^ 
establishing the doctrine that a junior incumbrancer may 
redeem from a forclosure of a prior mortage, if not made 
party, although the party foreclosing had no notice of such 
junior incumbrance. 

In England at that time there were no registry laws, and 
a foreclosure there was not followed by a sale to pay the 



280 SUPERIOR COURT RBPORTa 

HftMelman and Wation 9, Yandes, McKemmn and Pi«ice. 

mortgaged debt, but the party took the whole estate mort- 
gaged in satisfaction of the mortgage debt Cases would 
doubtless Jrequenily arise in which a valuable estate would be 
sacrificed in payment of a debt much less than the true value 
of the estcUe^ and Courts there have extended the rights to 
redeem to its utmost limits. 

We have al^ been referred to the case of Swtft v. Edson^ 
5 Conn^ 531. We find that in Connecticut a foreclosure 
of the mortgage gives the estate to the mortgagee* Indeed 
the practice has always been very liberal in opening decrees 
of foreclosure when such foreclosure vests the estate in the 
mortgagee without sale. 

In this State, in all foreclosures, the property mortgaged 
must be sold by the Sheriff to satisfy the mortgage debt, and 
if such sales were liable to be redeemed by a party holding 
some secret or unknown lien, it would have a serious ten- 
dency to impair the value of mortgage securities, and seri- 
ously injure the mortgagor and mortgagee, as property would 
not sell for its value if liable to be redeemed by parties hold- 
ing secret lien:*. 

Our own Supreme Court seem to have taken this view in 
the case of Harlock v. Bamhizery 30 Ind.y 370. 

In this case Harlock held a. junior unrecorded mortgaige at 
the time Barnhizer instituted his suit to foreclose his senior 
mortgage, but had no notice of Harlock's unrecorded junior 
mortgage. During the pendency of the foreclosure suit, Har- 
lock took a second mortgage on the mortgaged premises. 
After the sale of the mortgaged premises under the decree 
of foreclosure of the senior mortgage, Harlock brings his suit 
asking to be permitted to redeem s, junior incumbrance. (Rep.) 
The Supreme Court say that he has no right to redeem 
under his second mortgage, because he was as lis-pendens pur- 
chaser, and is bound by the decree. As to his^ir^^ mort- 
gage the Court say, '^ the rights of the purchaser of the mort- 



IN GENERAL TERM, 1873. 281 

Hasselman and Watson o. Yandea, McKeman and Pierce. 

gaged premises, under the decree, could not be affected by 
the unrecorded^ mortgage of which he had no notice." 

It would appear that it was Harlock's own neglect in not 
putting his mortgage on record as authorized by the statute. 

In the case at bar we have seen that there is no law author- 
izing the recording of assignment of mortgages so as to 
charge parties interested in the mortgaged premises with 
notice, and it is urged that the rule in Harlock vs. Barnhizer 
suproj does not apply, because there is no way in which con- 
structive notice can be given that plaintiffs were the holders 
of the junior notes and mortgages. 

We think the rule does apply in this case, and the diffi- 
culty is in the defective nature of the security the plaintifis 
have taken, instead of the rule. 

The plaintiffs knew that defendants had a senior mortgage, 
and defendants knew that Bcooker held a junior one, but 
did not know that plaintiffs held it by assignment Plain- 
tiffs must have known that they would not be made parties 
to a suit to foreclose the senior mortgage, unless the holder 
was notified that they held the* junior mortgage. 

One party or the other has to be charged with some dili- 
gence. The holder of the senior mortgage is charged with 
notice of what may be shown of record, but we think 
beyond that he is not properly chargeable except by actual 
notice. 

If he makes the party of record a party to his suit of fore- 
closure, he has done all he ought to be required to do, unless 
he has notice. 

The party holding a secret or unknown lien, or the unknown 
assignee of a known lien on mortgaged property, ought to 
be chargeable with such diligence as will bring home notice 
of his lien to the holder of the older mortgage. 

We think the ruling at Special Term was right, and the 
judgment is affirmed. 



S88 SUPERIOR COURT REPORTS. 



Ckwton «. Shoirtridge «t mL 



IN GENERAL TERM, 4873. 



JosiAH Clawson r. Ambrosr F. Shoktbidob, bt al^ 

Appellants. 

Dbpositions — notice in. 

A notice to take depoeitions requires only thmt reeaonaUe predikm, to 
inform the oppoeite party of the time when, and plaoe wh«ra to W 
taken. 

A notice, therefore, to take depoeitionf at a designated oflloe^ it tafldontlj 
certain if^ by usage it had come to signify the room thai had bean 
occupied by a firm as an office, though it was not then need aa tbo 
office of the parties named in the notice; eipedally is such notice good 
if they occupied no other room, jointly, as an office. 

Young — O. 4* -^9 fo^ appellants* 
Dye 4* Harris, for appellee. 

Pbrkins, Jif — Josiah Clawson soeil Ambrose Shortridge 
and others, on acconnt Trial, finding for plaintiff Motion 
for new trial overruled, and judgment on* the finding. The 
defendants appeal to General Term and assign errorn, the 
first of which is, the overruling of a motion to suppress two 
of plaintifTs depositions. 

The motion to suppress was based on the assumed fiict 
that the notice of taking the depositions, specified a fie* 
titious place at which it alleged they would be taken. 
The notice was given on the Ist day of June, 1872, and aa 
to time and place of taking, was as follows: ^The defend* 
ants in the above entitled cause are hereby notified that on 
the 4th day of June, 1872, at the law office of Knighf Ag 



IN GENERAL TERM, 187a 288 

CUwson V. Shortridge et at. 

Stone, in Brazil, in the Coanty of Clay and State of Indiana, 
between the hours of 8 o'clock a. m., and 6 o'clock p. M., of 
aaid day, before some officer aathorized to take depositions, 
the plaintiff will proceed," &c. 

The certi6cate of the officer to the depositions taken is as 
follows : ^ I, Isaac M. Compton, a Notary Pablic in and 
for the County of Clay, State of Indiana, do hereby cer- 
tify that, etc, and that said depositions were taken at the 
former office of Knight & Stone, now the office of G. A. 
Knight, in Brazil, Clay county, Indiana, on the 4th day of 
June, 1872, between the hours of 8 o'clock a. m. and 6 o'clock 
p. M., of said day, in pursuance, in all respects, to the within 
and annexed notice." 

The affidavit on which the motion to suppress was based, 
reads thus: 

'' John Young, being duly sworn, says that he attended as 
attorney for defendants Shortridge and Brown, on the 4th 
day of June, at Brazil, pursuant to notice ; that there was no 
such office in Brazil as the office of Knight & Stone ; that 
Stone's office was shut up, and Mr. Stone gone to the coun- 
try ; that at Mr. Knight's office deponent was informed by 
the clerk in waiting that the depositions were to be taken 
at the office of Mr. Curtis, attorney, on account of Mr. 
Knight's absence; that Knight was absent; that deponent 
waited at the office of Mr. Curtis till 2i o'clock p. m., and 
no parties appeared during that time, and deponent then 
returned home, believing that no depositions would, or could 
be taken on that day. 

The object of notice of taking depositions is, that the 
opposite party may appear at the taking, if he desire to do 
so, and it should inform him, with reasonable precision, of 
the time and place. 

In this case the time is sufficiently certain ; the question 
is as to the place. 



284 SUPERIOR COURT REPORTS. 



Clawfon V, Shortridge €i oL 



The place was the office of Knight & Stone. The term^ 
office of Knight & Stone, signified a room occapied by those 
gentlemen ; bat by usage it might come to signify the room 
that had been occapied by them as an office, after they had 
ceased to so occapy it, especially if they occapied no other 
room jointly as an office. Sach seems to have been the 
fact in this case ; and the notice thns designating that room^ 
the depositions coald be taken nowhere else ander the notice 
given, witl^oat the consent of the opposite party. The cleric 
of Mr. Knight, as sach, had nothing to do with the matter. 
The room was not a fiction. The affidavit shows that as a 
fact the notice did enable the opposite party, in dae«time, to 
find the room designated as the office of Knight & Stone, 
where the depositions were to be, and were in fact taken, 
within the hoars specified. This establishes, as matter of 
fact, that the notice proved safficient, and this being so, 
removes all groand for the motion to suppress in this case^ 
however it might have been, had the fact been otherwise. 

All the other errors complained of depended on the ques- 
tion of error in overruling the motion to suppress the deposi- 
tions. That motion having been rightly overruled, the depo- 
sitions were correctly admitted in evidence, and being in 
evidence, they, with the other testimony, tended to prove the 
plaintiff's case; and the jury, or Coutt, sitting as such, hav* 
ing found for the plaintiff, the judgment is affirmed. 



IN GENERAL TERM, 1878. 286 



Hillman o. Stumph et al. 



IN GENERAL TERM. 1873. 



Levi C. Hillman, Appellant, v. John Stumph, bt al* 

Mortgage — assignment of — 
Mortgagor — rights of — on record — 
Record— 5a/t5/ac/u>n of mortgage. 

Mortgagors have the right to insist that an entry of satisfaction of their 
mortgage be made on the records in the Recorder's office upon tender- 
ing payment in full, or upon furnishing sufficient evidence of the can- 
cellation of the mortgage, and where the record does not show that the 
interest of the mortgagee has been, by assignment, acquired by an 
assignee, a tender of the amount due to the mortgagee is good, and in 
suit for a judicial satisfaction the mortgagors are entitled to costs 
against the assignee, which were occasioned by his own negligence in 
not providing himself with authority to satisfy the mortgage record 
on payment of the debt. 

AdaniSy Dye Sf Harris^ for appellants. 

Newcomb, J. — Stumph and Lefever executed three prom- 
issory notes, payable at different periods, and a mortgage on 
real estate to secure the same, to one Gilbert. The mort- 
gage was duly recorded, after which the note last payable 
was assigned by Gilbert to one Jesse Jones, and by the lat- 
ter to the plaintiff. The mortgage was never assigned by 
Gilbert The notes were all paid except the last. When 
that became due, Stumph, one of the mortgagors, offered 
and was ready to pay it to Jesse Jones, plaintiffs attorney in 
fact, but demanded of the latter that on payment being 
made the mortgage should be satisfied of record, and refused 



286 SUPERIOR COURT REPORTS. 

Hillman v. Stamph et al. 

to pay oaless sncb satisfaction were entered at the time of 
payment Thereupon the plaintiff commenced a sait for 
judgment on the note, and a foreclosure of the mortage. 
On entering their appearance Stumph and Lefever answered, 
setting up the prior tender, coupled with the demand for 
rectord satisfaction of the mortgage, and brought the prin- 
cipal and interest due into Court,, to be paid to plaintiff on 
satisfaction of the mortgage being entered of record. The 
Court thereupon rendered judgment of foreclosure, directed 
the money paid in by defendants to be applied, first to the 
discharge of the costs made in the cause, and ordered the 
residue to be paid to plaintiff, and that satisfaction of the 
mortgage should be entered on the margin of the record 
thereof, by the Clerk, and that he should enter satisfaction 
of the judgment. 

The facts and conclusions of law therein, were set out in 
a special finding by the Court, and the plaintiff duly excep- 
ted to the conclusion of law found by the Court., that costs 
should be taxed against the plaintiff. This presents the only 
question in the case. 

The following statutory provisions concerning the satis- 
faction of recorded mortgages, are found in " An Act con- 
cerning mortgages," 2 6. & H. 355, Sec. 5. " Every mort- 
gagee of lands whose mortgage has been recorded, having 
received full payment of the sum or sums of money therein 
specified, from the mortgagor, shall, at the request of such 
mortgagor, enter satisfaction on the margin, or other proper 
place in the record of such mortgage, which shall operate 
as a complete discharge thereof." 

" Sec. VI. Where such mortgage has been paid and satis- 
fied by the mortgagor, be may take a certificate thereof, duly 
acknowledged by the mortgagee, or his lawful agent, as herein 
required for the acknowledgment of conveyances to entitle 
the same to be recorded ; which certificate and acknowledg- 



IN GENERAL TERM, 1873. SS7 

Hillman v. Stumph et al. 

meat shall be recorded by tbe Recorder in whose office such 
mortgage is recorded, with a reference to the book. and page 
containing the record of the mortgage aforesaid ; and sach 
recorded certificate shall forever discharge and release the 
mortgagor from sach mortgage, and forever bar all salts and 
actions thereon." 

By Section I, of the act of March 9, 1S61, 2 G. & H., 294, it 
is provided, ^^that apon the foreclosare of any mortgage," etc., 
'*and upon the payment and satisfaction of sach judgment as 
may be rendered in such proceeding in foreclosure, in said 
Court, the Clerk thereof shall immediately thereafter enter 
satisfaction of said mortgage, on the records of the Record- 
er's office of such coanty, if the same shall have been 
recorded ; Provided^ that the record in foreclosare, and satis- 
faction thereof, shall show that the whole debt secured by 
such mortgage has been paid." 

The assignment of the notes mentioned in the mortgage 
transferred an equitable interest in the mortgage itself to the 
assignee. Gower v. Howe^ 20 Ind,^ 396 ; Sample v. Rowe, 
et aLy 24 Jnd, 208. In the latter case it was held that where 
more than one obligation is secured by the mortgage, each 
is considered a separate mortgage, and the assignment of 
one or more of such obligations will carry with it so much 
of the mortgage. But there is no statutory provision that 
the assignee of an obligation secured by mortgage, may 
enter satisfaction on the record of such mortgage, when 
the record itself does not show that he has acquired an 
interest in the mor gage. The entry of satisfaction in such 
case by the assignee of a note, would not of itself, therefore, 
furnish sufficient evidence of the cancellation of the mortgage. 
The mortgagors were entitled to have such satisfaction of 
the mortgage entered on the record in the Recorder's office, 
on making full payment thereof, and we think they had a 
right to insist upon such entry when tendering payment. 



288 SUPERIOR COURT REPORTS. 



Hillman v. Stumph et al. 



Tbey ought not to be required to pay the debt and after- 
wards be driven to a suit to remove the record evidence of 
an incumbrance on their property which they had already dis- 
charged. It was no fault of theirs that the holder of the 
note had not provided himself with authority from the mort- 
gagee to discbarge the mortgage of record on receiving pay- 
ment of the note. It would be unjust to subject the- mort- 
gagors to the costs of a foreclosure rendered necessary for 
the protection of their title in consequence of the neglect of 
the plaintiff to provide himself with authority to satisfy the 
mortgage record on payment of the debt secured thereby. 
The simple process of taking a properly acknowledged power 
of attorney from the mortgagee when the note was assigned, 
authorizing him to satisfy the record, would have obviated 
the difficulty. Perhaps an assignment of the raortgagCt 
acknowledged before a proper officer, would have entitled the 
assignment to record, and clothed the purchaser of the note 
with authority to discharge the mortgage of record, but as 
that question does not arise, we decide nothing in reference 
to it The facts set out in the special finding, show that 
there were but two methods by which record evidence of 
satisfaction of the mortgage could be obtained ; one by pay- 
ment of the note and a subsequent suit against the mort- 
gagee and his assignee to have a judicial satisfaction decreed ; 
the other, by a foreclosure in which the Court could direct 
the Clerk to enter satisfaction in accordance with the pro- 
visions of the statute above quoted. In our judgment the 
mortgagors might properly elect the latter proceeding, and, 
not being themselves at fault, they were entitled to costs 
against the plaintiff, which were occasioned by his own neg- 
ligence. The judgment at Special Term is therefore affirmed, 
with costs. 



IN GENERAL TERM, 187a 289 



Kendleberger v. YuideaMii. 



IN GENERAL TERM, 1873. 



Tobias Kendlbbbroer v* Cbauncbt Vandbusen, Appellant 

Husband — UabUUy of^ for medical attendance on wife — 
Practice — errors^ assignment of. 

A huaband is liable for reasonable charges for the Mrvioee of a physician 
employed by the wife in her illness ; showing such employment, and 
the necessity of medical aiienHan^ form sufficient evidence to establish 
liability of the husband for such employment. 

Errors not assigned below, cannot be considered on appeal. 

Rand, J. — This is a suit by Kendleberger against Van- 
deosen on an account for medical services rendered by plain- 
tiff to defendant's wife. 

The case was snbmitted to the Coort, and there was a 
finding and judgment for the plaintiff. 

The Court overruled the following motion for a new triaL 

1. The finding and judgment of the Court is not sus- 
tained by the evidence. 

2. That the finding and judgment of the Court is not 
supported by, and is contrary to the evidence. 

3. That the judgment is not sustained by the law and 
the evidence. 

4. That the Court erred in failing to make special find- 
ing upon the defendant's request 

The three first specifications present the question of the 
sufficiency of the evidence to support the finding of the 
Court There was conflicting evidence on some points in 
controversy. 



290 SUPERIOR COURT REPORTS. 

Kendleberger «. Vandeuaen. 

The evidence satisfactorily shows that the services chai^[^ 
were rendered to defendant's wife, and that she needed medi^ 
col atlentian; that no other physician was at the time attend- 
ing upon her, and that the wife employed plaintiff 

We are of opinion that the wife had a right to make sach 
employment, and that the defendant is liable for the reason- 
able charges of plaintiff for such services as he rendered 
under such employment The husband is liable for necea- 
saries furnished his wife. 

Bee 1st, Blackslane^s Commentaries^ side page 443 ; LU- 
son V* Broumj 26 Indj 491. Medical bills are necessaries. 
See Ist, Blackstone's Commentaries^ side page 466, and 
noieSf authorities there cited. 

The fourth specification for a new trial was properly over- 
ruled because the renewal does not show that defendant 
requested the Court to make a special finding, and for its 
failure to do so the defendant objected and excepted. 

It is assigned for error that the Court erred in admitting 
in evidence the conversations, and statements of defendant's 
wife. This error, if such it is, was not assigned as a reason 
for a new trial, and therefore cannot be considered here. 
See Kent v. Lawson^ 12 //?(/., 675; Snodgrass v. Hunt, 15 
BuLj 274 ; Medder v. Hiatty 14 Ind., 406 ; Leach v. Webster, 
present Term Superior Court 

The judgment is affirmed. 



NoTB. — If the husband wrongfully deserts his wife and children, making 
no provision for them, he is answerable for necessaries furnished them upon 
his credit. {Note to Carter v. Hou;ard^ 6 Am. Law Reg^ (m. 8.) 411, and 
supported by Walker v. Ltighton^ 11 Foster^ 111 ; Evana y. FMer^ 6 QiU 
669; Ncfrton y. Fazan, 1 Boaanquet j* PulUt's Reports^ C P., 226; KtmboU'W 
KtytB, 11 WendL^ 88. 

Authorities cited, in the case of Carter v. Hovoard^ being an action of 
omumptit to recover pay for medical services rendered the wife wherein 
it was held^ that a physician who renders professional servicea to a married 
woman at her request, and expressly upon her credit while she is living 



\ 



IN GENERAL TERM, 187a 981 

Kendleberger v. YAndeaien. 

Impart fh>m her hnsband, cannot afterwards recoyer in a99umprii againit 
the hushand, are : 20 Eng^ h, # Eq^ 845; Savayet y. OutUng^ 28 Vt, 486; 
PaiUT9on y. Qandamqm^ 16 Eati^ 62 ; Addiwn y. Same^ 4 Tlnm/ofi, 674 ; 82 
AliLj 227 ; 18 Omn., 417. See, alto, 18 Texas, Black y. Brffan, 468; and 86 

n, 67. 

Of the liability of the husband upon his wife's contracts during coyer- 
tore. See Chitiy <m QmtraeU, 166-186.— [Rspostsb. 



IN GENERAL TERM, 1873. 



Thomas Huooins v. Samubl Tinsman and Susan Tinsman* 

Appellants. 

Promissory Note — externum of payment — 
PoRECLOsuRfe — attorneys fees in — 
Attornbts Fbbs. 

An agreement to forbear to sue, or to extend the time of payment of an 
obligation for a limited time, though founded on a sufficient consider- 
ation, cannot be pleaded as a release or ba» of an action on such obliga- 
tion, brought within the time limited. In such case the defendant is 
left to his action for a breach of the agreement. 

Where an agreement to extend the time of payment of a note is stipulated 
for an interest thereon that is usurious, such agreement cannot be 
enforced, nor does it constitute a sufficient consideration unless the 
interest had been paid for the extension. 

In a suit for foreclosure, the plaintiff is not entitled as a matter of right to 
recoyer attorney's fees on notes not due. 

& J. PeeUj for appellee. 

Blair, J. — This is an action by the plaintifi to foreclose a 
mortgage given to secure the payment of two promissory 
notes made by the defendant Samuel Tinsman to the plain- 



292 SUPERIOR COURT REPORTa 

Huggins r. Tinsman. 

tiff, each for 91)250, dated November 17th, 1870, one dae in 
one year from date, and the other two years from date. The 
suit was commenced March 22, 1872. 

Judgment and decree of foreclosure was rendered at Spe- 
cial Term for the plaintiff, from which the defendants appealed 
to General Term. 

Errors in the action of the Court at Special Term an*. 
assigned in several particulars, but the appellants say they 
rely upon the question presented by the plaintifTs demurrer 
to the third paragraph of the defendant's answer. 

In the third paragraph of answer the defendants admit 
the execution of the notes and mortgage, but say that on 
the first day of November, 1871, the plaintiff and defendant 
Samuel Tinsman fnade a verbal agreement whereby the 
defendant agreed to pay interest on the note first falling due 
at the rate of twelve per cent, per annum from the date of 
the note until the maturity of the second note falling due on 
November 17th, 1872, and in consideration of which agree- 
ment the plaintiff agreed to extend the tiioe of payment 
until the 17th day of November 1872, that afterwards on the 
9th of February, 1872, the defendant Samuel Tinsman, paid 
to the plaintiff on the interest fifty dollars, and on the 7th day 
of March, 1872, he paid thereon seventy dollars, wherefore 
Samuel Tinsman says the action has been prematurely 
brought, ancf the defendant Susan says that the above agree- 
ment was made without her knowledge and consent, and 
that as to her the mortgage ought not to be foreclosed. 

A demurrer of the plaintiff was sustained to this answer, 
to which ruling the defendant excepted. 

The defendant cites the case of Rigsbee v. Bowler^ 17 
/nd., 167, in support of the above paragraph of answer. 
It was there held that as the payee of the note sued on had 
agreed with the defendant, before the defendant had notice 
of the assignment of the note, that if the defendant would 



"V 



IN GENERAL TERM, 1873. 293 

Hugging V. Tinsman. 

pay him before it become due, another debt of three hundred 
dollars owing from the defendant to the payee, the latter 
would extend the time of payment of the note sued on, the 
agreement constituted a good defense, the debt of three hun- 
dred dollars having been paid as agreed. The Court in that 
case cited Peck v^ Beckwithj 10 Ohio & T. iL, 497, as an 
authbrity, and the case seems to sustain the ruling. In 
deciding the case a general statement is given that a subse- 
quent verbal agreement changing the terms of a written 
contract may be valid, and may be proved by parol, in a case 
where the original contract might have been made by parol, 
and beyond the support of this principle no reference is made 
to the numerous authorities in our State that distinctly assert 
the rule to be otherwise, and hold that an agreement to for- 
bear to sue, or to extend the time of payment of an obliga- 
tion for a limited time, though founded on a sufficient con- 
sideration, cannot be pleaded as a release, or in bar of an 
action on such obligation brought within the time limited. 
In such case' the defendant sued is left to his action for a 
breach of the agreement. 

Irons et al. v. WoodfiU et aL, 32 IfuL^ 40 ; Thalman et oL v. 
Barbour et al., 5 Ind., 178 ; Harbert v. Dwmont et oLj 3 Ind,j 
346 ; Clark et al v. Snellingyl lb., 382 ; Lowe et oL v. Blair 
et aL, 6 Block/., 282 ; Mendenhall et al. v. LenweU, 5 lb., 125 ; 
Berrt^ v. Bates, 2 lb., 118 ; Reed v. Shaw, 1 lb., 245. See, 
also, Thinblely v. Barron. Z M. Sf W., 210 ; 2 Saunders, 48, 
note 1 ; Chandler v. Herrick, 19 John., 129. 

In view of these authorities, the first referred to being a 
later case than the one in 17 Ind., we cannot follow the rule 
announced in 17 Ind., and must bold that there was no error in 
sustaining the demurrer to the third paragraph of answer. In 
addition to the above, the answer does not show that the 
interest agreed to be paid, was paid, except a portion of it, 
and further, the alleged agreement was to pay usurius inters 



394 SUPERIOR COURT REPORTS. 

Huggini V. Tinunan. 

est, hence was an agreement that could not have been 
enforced, and did not constitute a sufficient consideration 
for the extension unless the interest had been paid. See on 
this point, Shaw et oL v. Binkatdj 10 LuL^ 237; Ooodkue v. 
Palmery 13 LuL^ 457 ; Beauchamp v. Leagw^t 14 ImL, 40i. 

We think, in a suit for foreclosure, the plaintiff is not entitled 
as a matter of right to recover attorney's fees on notes not 
due, providing for such fees. 

The recovery on such notes follows as an incident to a 
recovery upon amounts due. and the notes not due do not 
constitute the cause of action, and a payment of the amount 
due, even after judgment and before sale, relieves the defend- 
ant from any default in regard to notes that have not ma- 
tured. 

We do not, therefore, regard the cross error assigned by 
the plaintiff as well taken. 

The judgment is therefore affirmed. 



IN GENERAL TERM, 1873. 295 



John Hurley v. Railroads. 



IN GENERAL TERM, 1873. 



John Hurley v* The Jefpersonville, Madison and Indian- 
AFOLis Railroad Company: The Tbrrb Haute & Indian- 
apolis Railway Company, The Cleveland, Cin- 
cinnati & Indianapolis Railway Ck>MPANY; 
The Indiana Central Railway Company; 
AND The Indianapolis, Cincinnati Sc 
Lafayette Railroad Company. 
Appellants. 

Railroad Crossing — 
Evidence — 
Instructions by Court. 

A railroad corporation is not only required to construct its tracks at a pub- 
lic crossing, so that they may be reasonably safe to persons driving 
across the same, but to maintain them in a reasonably safe condition. 

In such construction, as well as in maintaining them in a safe condition, 
they are bound only to ordinary care and skill, the rights and duties 
of corporation and individual being mutual. 

Evidence of the manner in which said crossings are generally constructed, 
is proper, as showing proper care and skill, but evidence of a cu$tom 
of railroad companies in constructing street crossings, will not preclude 
the inquiry into the fact whether or not a particular crossing was prop- 
erly constructed, or kept in sufficient repair to make a safe passage 
way over the railroad. 

It is not error to refuse any particular instruction, if the substance thereof 
has been given, or included in instructions given by the Court. 

HendrickSj Hard Jjp Hendricks^ for appellants. 
Nichol 4* Jordan^ for appellee. 



296 SUPERIOR COURT REPORTS. 

Hurley v. Railroads. 

Newcomb, J. — The eompiaiot in this case alleges that the 
several corporations defendant are a partnership, under the 
name and description of the Union Railway Company, and 
as such partners own and control a railroad track in the city 
of Indianapolis, that said track extends upon and across 
Meridian street in said city, and that it was, and is the daty 
of the defendants to constmct, keep and maintain said cross-' 
ing in a safe, and proper condition. 

The first paragraph charges that the defendants neglceted 
to keep, and maintain said crossing in good and proper con- 
dition, bot soifered the same to become, &C4 that plaintiff^ 
on, &c, was driving along said street across said railroad 
track, using proper c^re and diligence, and by reason of the 
improper condition in which defendants had wrongfully, 
and negligently suffered said crossing to get, the plaintiff's 
horse was thrown violently to the ground by reason of his 
foot becoming fastened in the planking of the crossing, and 
was so injured thereby as to render him worthless. 

The second paragraph alleges that the crossing was im- 
properly constructed by the defendants, too wide a space 
having been left between the iron rail and the planking on 
each side thereof, whereby the injury complained of was 
caused, See, 

A demurrer to the complaint was overruled, we think,. cor- 
rectly. The defendants then filed a general denial. The 
cause was tried by a jury, who found for the plaintifi^ assess- 
ing bis damages at $150. A motion for a new trial was 
overruled, and judgment rendered in accordance with the 
finding, from which the defendants have appealed to the 
General Term. 

At the proper time defendants' attorneys submitted five 
written instructions to the Court, three of which were given 
to the jury ; the others, the third and fifth, were refused, and 
defendants excepted. 



IN GENERAL TERM, 1873. 297 

Hurley v, Bailroadt. 

The instructions so refused were as follows : 

*'3. If the defendant's tracks, at the place where the 
plaintiff's horse was injured, were constructed and main- 
tained in the customary and usual manner in which such 
crossings are constructed and maintained, then the defend- 
ants had performed all the duty they owed the plaintiff, and 
are not liable." 

^ 5. The burden of the proof as to every fact entitling the 
plaintiff to recover is upon the plaintiff, and he must make 
out his case by a preponderance of the evidence, or he can- 
not recover," 

The fifth instruction was correct as a legal proposition, 
and ought to have been given unless substantially included 
in the instructions the Judge did give to the jury. 

Among other charges the Judge gave the following: 

^ 1. The plaintiff is bound to make out his case by a 
preponderance of the evidence." 

^ 2k It was the duty of the defendants to so construct 
th^ir track across Meridian street that it would be reason- 
ably safe to persons driving their horses across the same; 
and after they had so constructed the track it was their duty 
to maintain the same in a reasonably safe condition, taking 
into consideration the rights of such passers along the street, 
and the rights of the defendants to use their tracks to run 
cars over the same." 

*< 3. If the defendailts both constructed and maintained 
said Union railroad track across Meridian street, so that it 
was reasonably safe for persons driving across the same, 
then the law is for the defendants." 

^4. The jury are not authorized to infer that the cross- 
ing was negligently constructed or maintained, from the fact 
that the plaintiff's horse was caught and injured. It must 
appear from the evidence that the injury was caused by the 
improper manner in which the track was constructed or 
maintained." 



298 SUPERIOR COURT REPORTS. 



Harley v. BaUfondi. 



^5. The law does not impose upon tbe defendants the 
duty of so constructing and maintaining their trecks tbat it 
is impossible for a horde's foot to be caiigbt and injured. 
They are only bound to use ordinary care in tke construo- 
tion and maintenance of their tracks." 

The above instructions, as giren in eonnection with 
instructions on other branches of the case, informed the 
jury as to the facts necessary to be established by the 
plaintiff, and that those facts must be proven by prepon- 
derance of tbe evidence, in order to justify a veidiet in plain- 
tiff's favor. 

We think, therefore, that no error was eonimitted in lefus^ 
ing tbe fifth instruction asked by the defendants^ as it was 
in effect included in the instructions as given. 

As we understand tbe third instruction asked by tbe 
defendants, it proposed to take from tbe consideration of 
the jury the question whether tbe street crossing in contro- 
troversy had, in fact, been properly constructed, or if so con- 
structed, whether it bad been maintained in a reasonably 
proper manner ; and that, as a matter of law, tbe jury were 
to find for tbe defendants if they constructed and maintained 
tbe crossing in the usual manner in which sucb cvossings are 
constructed and maintained* 

Evidence of tbe manner in which sucb crossings are gener- 
ally constructed by railroad builders was proper as tending 
to show proper care and skill in the construction of the track 
in controversy, if built in the usual and customary manner ; 
and evidence on that point was introduced without objec- 
tion, on the trial ; but we cannot assent to tbe doctrine that 
the custom of railroad companies in constructing street cross- 
ings precludes inquiry into the fact whether or not a particu- 
lar crossing was properly constructed, or kept in sufficient 
repair to make a safe passage way over the railroad. 

In Sfiearman 8f Reclfieldy on Neglig^encCy §444-446, it ia 



IN GENERAL TERM, 187a 299 

Hurley 9. Railroads. 

said: ^ A railroad company is boand to lay its track and 
road bed in each a manner, and keep them in such condition 
as to make the road safe for the use of its passengers, and 
of all persons having a right to pass over it, or be apon it, or 
to have their property thereon. * * In laying down a 
railroad apon a public highway, ordinary care and skill mast 
be ased to make the track harmless to persons, animals, or 
▼chicles passing along the highway* And, as in other cases^ 
the degree of care and skill required is to be estimated in 
view of the whole eireomstances, taking into account the 
obvious risk of danger to travelers, and the necessity of cau- 
tion to avoid numerous injuries. That the rails ought not to 
be so laid as to entangle horses' feet, if by ordinary skill such 
a result could be avoided." 

In the case of The Toledo 4- WaboMk Railroad Compang 
v« Ooddardf 25 £u2., 186, our Supreme Court lays down the 
rule as follows : 

^ The rights and duties of a railroad company and of per- 
sons traveling on a public highway, crossing the track of the 
railroad, are mutual. Both have the right to pass, and both 
are bound to use ordinary care and diligence ia doing so to 
avoid injury. 

^Ordinary care in that degree of care which a person of 
ordinary prudence is presumed to use, under the particular 
circumstances, to avoid injury. It must be in proportion to 
the danger to be avoided, and the fatal consequences involved 
in its neglecf 

Perhaps a more stringent rule as to the construction of 
railroad crossings is laid down in the fifth clause of Section 
XIII of the general railroad law of thb State. 1 G. & EL, 
S09. That clause of the act empoweiB railroad companies, 
^ to coastmct their road upon or across any stream of water, 
water-course, road, highway, railroad or canal, so as not to 
interfere with the free use of the same, which the route of its 



300 SUPERIOR COURT REPORTS. 

Hurley v. Railroftds. 

road shonld intersect, in such matmer as to afford securii 
Itfe and property ; but the corporation shall restore the stream 
OF water-coarse, road, or highway, thus intersected, to its 
former state, or in a sufficient manner not to have vmneceM^ 
earUy impaired its usefulnessj or injured its franchises. 

At all events, we think it was the province of the jury to 
determine, under the evidence, whether the crossing in quea- 
tion had been constructed with reasonable care and skill, 
and whether, if so constructed, it was, at the time of the 
injury complained of, in reasonably safe repair. 

The instructions given on these points were, in our opin- 
ion, correct, and the third instruction asked by the defendanta 
was properly refused. 

The judgment at Special Term is affirmed at the costs ot 
the appellants. 



NoTK. — The lawful maintenance of its track in a street or highway, gives 
a railroad corporation no exclusive right of use of the portion of the high- 
way on which the track is laid, and the law of the road, requiring the 
drivers of carriages, on meeting, to turn seasonahly to the right, does not 
apply to the meeting of a railroad car, and a common carriage. 1 Smiiht 
880, (Hegan v. Eighth Avenue Railrocul), 

A railroad company is not liable for every accident which occurs by 
reason of its track being lawfully laid in the street of a city. M's horso 
in being driven across such a track got one of his hoofs between the raila^ 
and was lamed. Held^ that the burden lay upon him to prove negligtooe 
in the construction, or maintenance of the track, as the cause of the injury. 
Mateiti v. New Vork ^ Harlem Railroad, 8 E. D, Smith, 98. 

A person lawfully using a street traversed by a railroad track, is bound 
only to use ordinary care. 

Authority to occupy and use streets, privileges and liabilities incident 
thereto. See Dillon on Municipal Corporation, Sec. 560, et seq. 

Liability of Railroad Companies for negligencCi discussed. 7 Am, 
Beg,^ (n. 8.) 449w— [Reportwu 





IN GENERAL TERM, 1873. 301 



Leas Mid France e. Grubbs and Kline. 



IN GENERAL TERM, 1873. 



Isaac Leab and William H. France t;« Robert M. Grubbs 

AND Joseph Kline, Appellants. 

Witness — testimony of^ to eontrtict — 
Contract — instructions of Court on. 

Where an iiiue k preeented that depends upon tlie making or revocation 
of a contract, between one of the parties to a suit, and a third person, 
a competent witness may testify to what was done and aaid between 
the parties to a contract, with reference to the making, or revoking th^ 
same, although the other party to the suit may not have been present 
at the transaction and conversation. 

It is proper for the Court to instruct the Jury as to the terms and legal 
effect of a written contract which is in evidence. 

E. A. Parkery for appellant 
Bloomer 8f Bradbwry^ for appellees. 

BlaiRi J. — This is a suit by the* plaintifei Isaac Leas and 
Wm. H. France against Robert M. Grnbbs and Joseph Kline, 
on a promissory note made by the defendants to the plain- 
tiffs, on the 26th day of January, 1872. 

The defendant, Grubbs, suffered a default 

The defendant, Kline, answered that the note was given 
for a certain patent right, which the plaintiffs represented 
they were the sole owners of^ when in fact they had before 
that time conveyed a one-half inteiest in the patent to one 
A. C. Ball 

To this answer it was replied that a contract was made 
granting to Ball a one-half interest, but that in the contract 



302 SUPERIOR COURT REPORTS. 

LeM and Frasoe v. GnibW and KUsei. 

the plaintiffs reserved a right to reToke tW same €Ni eertain 
contingencies, and that it was revoked before tke sale to the 
defendants. 

The cause was tried at Special Term before a jbrj, lesidt- 
ing in a verdict and judgment for the pUdntifib for tbe fidl 
amount due upon the note. 

The defendant Kline made a motion for a new trial, whieli 
motion was overruled and excepted to by tbe defendant* 

The first error complained of is the admission over tbe 
objection of tbe defendant Kline, of certain testimony of 
Leas, one of the plaintiffs, of a conversation and agieement 
with Ball touching the rescision of the contract between the 
plaintiffs and Ball. It was objected that the plaintiff Leas 
could not testify as to what occurred, or was said between 
himself and Ball touching this matter, because the defendant 
Kline was not present at the conversation. 

It was a question presented by the issues whether the con- 
tract with Ball had been revoked or not, before the sale to 
the defendants and the making of the note. 

The question of revocation depended entirely upon what 
transpired between the plaintiffs and Ball, it was a matter in 
which they alone were concerned, and about which they 
alone could make an agreement From what was done and 
said between the plaintiff and Ball, the Court and jury were 
to determine whether or not the contract was revoked. The 
plaintiff Leas was a competent witness, and it was proper 
for him to state the transaction and negotiation about the 
rescision just as it occurred. Where an issue is presented 
that depends upon the making of a contract, or revoking a 
contract between one of the parties to a suit and a third 
person, a competent witness may testify to what was done 
and said between the parties to the contmct with reference 
to making or revoking the contract, although the other party 
to the suit may not have been present at the transaction and 
conversation. 



IN GENERAL TERM, 1873. 303 

Leas and France v. Gcubba and Kline. 

The next error is that the verdict of the jury was contrary 
to law and the evidence. 

We have examined the evidence and think the verdict is 
folly sustained, even by the evidence introduced by the 
defendant himself. 

A general assignment of error i» made to the instructions 
given by the Court, but our attention is only called to the 
second instruction* 

It is objected that in this instruction the Court presumed 
to decide upon £acts which should be left to- the jury. The 
written contract between the plaintiffs and Ball was in evih 
dence, and its proper construction and legal effect was impor- 
tant to be made known to the jury. 

It is certainly unnecessary to cite authorities to support 
the proposition that the construction of a written contract is 
a question for the Court It is proper for the Court to 
instruct the jury as to the terms, and legal effect of a written 
contract which is in evidence. This is all the Court did in 
the second instruction^ and it is, therefore, not open to the 
objection made by the defendant* 

Judgment affirmed. 



a04 SUPERIOR COURT REPORTS. 



Stiohinier «. Stunph. 



IN GENERAL TERM, 1873. 



Edward Strohmibr, AppeUant, v. John Stumph. 

TRANscRiPT^/foin JusHcef requirev^enU of— 
Jurisdiction — of Inferior Court 

The «ixmmonfly and officers retoi* tberelo^ are sot required to be copied aft 
length on the Justice's docket It is sufficient if such transcript showa 
iSie fact, that these, inter aliei, statutory requirements, giving the Justioe 
Jurisdiction oTer the persons of the parties have beea Judicially pasiMMl 
upon by him. — Newcomh, J. 

^ Where the jurisdiction of tm inferior oourt depe&ds upon a Ud, which 
such court is required to ascertain and eettle by its decision, euch deeia- 
ioB is conclusive. 

Whern it appears from the record that the evidenee of certain &oli| 
requisite to give an inferior court Jurisdiction, have been adjudged 
sufficient, a finding and judgment upon such Jurisdictional facts can- 
not be impeached collaterally, hence an answer to a suit on such judg- 
ment, that the process was not served by the proper officer, is bad. — 
PerkinSf J, 

Seidensticker — Taylor^ Rand 8f Ta§hr^ for appellee* 
Oyler 4* Howe — Voss^ Davis 4* Holmanj for appellant 

Newcomb, J. — The appellant sued Sturaph and William 
Strohmier, before a Justice of the Peace of Marion coanty, 
on a judgment rendered against them in appellant's favor 
by a Justice of the Peace of Johnson county, Indiana. Pio- 
cess was returned ^' not found," as to the defendant Stroh- 
mier. Stumph was served, appeared to the action, and judg- 
ment was rendered against him, from which an appeal was 
taken to the Superior Court 



IN GENERAL TERM, 1878. 305 

Strohmicr v. Stumph. 

The trial at Special Term resulted in a finding for Stumph, 
and a judgment in his favor over plaintiif 'a motion for a new 
trial. 

The only question in the case arises on the ruling of the 
Judge at Special Term, in rejecting as evidence a duly cer- 
tified transcript of the Johnson county judgment, on which 
the suit was founded. 

That transcript, after reciting the filing of the complaint 
and bill of particulars, shows the issuing of a summons and 
a delivery of the same to " Wm. Snyder, Marshal." The 
entry of the proceedings had on the return day of the sum- 
mons, shows an appearance by the plaintiff, and adds '^and 
the defendants William Strohmier, and John Stumph being 
called, came not, and it appearing that the summons in this 
case was duly served on each of them more than three days 
before the time set for trial, whereupon the witnesses were 
sworn and trial had," &c. 

Does this transcript show that the Johnson county Justice 
had acquired jurisdiction of the defendants before hearing 
the cause and rendering his judgment ? Neither the sum- 
mons or return are set out in the transcript nor was it neces- 
sary that the Justice should copy them in his docket entry. 
Taylor v. Mc Clure et aL^ 28 iwrf., 39. We must therefore 
look to the docket entries of which the transcript is a copy, 
in deciding this question. 

Had the Justice stated in his docket entry that the person 
to whom the summons was delivered was a Constable, the 
case would have been precisely like that of Taylor v. Me^ 
Clure, mpra, but in the absence of that statement, it was 
held at Special Term that the transcript failed to show that 
the Justice had acquired jurisdiction of the persons of the 
defendants, wherefore the judgment was void. On the other 
hand, appellant's counsel assume that as the Justice found 
that the summons had been duly served the statutory period 



306 SUPERIOR COURT REPORTa 

Strohmier •. Stumph. 

prior to the trial, jnrisdiction is shown, and the jadgment 
cannot be attacked collaterally. 

The Justices' Act, 2 6. IL, 582, contains these provisions : 

^ Sec. XX. Baits may be instituted before Justices by 
agreement or process, and the delivery of the process to the 
officer authorized to receive the same, if by process, and the 
entry of the fact upon the docket, if by agreement, shall be 
deemed such commencement; and it shall be the duty of 
such officer to write on such process the date when it came 
to his hands." 

^ Sec XXI. Except in cases otherwise provided, such pro* 
cess shall be a summons, specifying a time not less than three 
nor more than thirty days from the date, and a place at which 
the defendant shall appear," &c. 

^Sbc. XXIL Such summons shall be served at least 
three days before trial by reading the same to defendant, or 
or leaving a copy thereof at his last usual place of residence^ 
and if not so served, such cause shall be continued for a 
reasonable time." 

** Sec. LXI. If the defendant, being legally notified, fail 
to appear, judgment may be rendered against him by default, 
upon proof heard, for the amount of the plaintiff's demand." 

These sections of the statute require a Justice of the Peace, 
before he can hear a cause and render judgment against a 
defendant who does not appear, to find that the process went 
into the hands of a proper officer, and was served on the 
defendant by him, at least three days before the day fixed 
for the trial, in one of the methods prescribed. If the sum- 
mons has been so served, the Justice may proceed to a hear- 
ing in the absence of the defendant; if there has been no 
service, he must issue an cUias process, and continue the 
cause for service, and if the process has been served, but not 
three days before the day set for the trial, he must continue 
the case for a reasonable time. These are facts that must 



IN GENERAL TERM, 1873. 807 

Strohmier v» Stumph. 

be jadicially passed upon by the Justice. In the case under 
consideration the transcript shows that they were passed 
upon, and the finding was that the summons was duly served 
on the defendants, more than three days before the day set 
for trial. 

In the EvansviUey Sfc.^ Railroad Company v. The City of 
EvansvUle^ 15 iii^f., 395, our Supreme Court say : *' It is a 
well settled principle, that where the jurisdiction of an infe- 
rior court depends upon a fact which such Court is required 
to ascertain and settle by its decision, such decision is con* 
clusiv^." 

In Sheldon v. Wright^ 1 Selden^ 497, it was held that when 
certain facts are requisite to give an inferior court jurisdic- 
tion over the persons of parties, and it appears from the 
record of its judgment that there was evidence tending to 
prove such facts, and that such evidence was adjudged to be 
sufficient, such judgment cannot be collaterally impeached 
or contradicted. See, also, 2 SmitK$ Leadings Casesj 832. 

In the light of these authorities the judicial decision of 
the Justice that process had been duly served on the defend- 
ants, more than three days before the day set for hearing the 
cause, is one that must be respected by other courts when 
brought collaterally in question. There was nothing on the 
face of the transcript to a want of jurisdiction ; on the con- 
trary it shows that everything necessary to be done to give 
the Justice jurisdiction of the persons of the defendants had 
been done. The transcript should, therefore, have been 
admitted as evidence. 

The judgment at Special Term is reversed, with costs, 
and the cause remanded with instructions to grant the plain- 
tiff a new trial. 



An appeal was again taken in this case upon another issue, when in the 
December Term, General Session, the former ruling of Judge Newcomb 
was adhered to in the following opinion by Judge Perkins : 

Strohmier sued Stumph and another on a judgment ren- 



808 SUPERIOR COURT REPORTS. 

Strohmier v. Btomph. 

dered by a Jostice of the Peace of the County of Johnson, 
Indiana. 

The judgment wad rendered opon default of appearance 
by the defendants. The transcript of the judgment recites 
the filing of the complaint and bill of particulars, the issae 
of a summons to the defendants, and its delivery to Win« 
Snyder, Marshal. 

On the return day of the summons the following entry 
was made by the Justice, ^January 17th, 1871, time set 
for trial. The plaintiff in person, and by Oyler & Howe, his 
attorneys, appeared, and the defendants William Strohmier 
and John Stumph, being called, come not; and it appearing 
that the summons in this case was duly served on each of 
them more than three days before the time set for trial,'' and 
thereupon the Justice proceeded to hear proof of the claim, 
&c, and rendered final judgment for the plaintiff for one 
hundred and ninety-one dollars and costs. 

The words '* duly served " are required only to a statement 
that the summons was served on the defendants, by a proper 
officer, at proper times, and places, and in a proper manuer, 
^ more than three days," &c.; in short, that by what had been 
done, the Court had acquired jurisdiction of the persons of 
the defendants — that previous clerical entries as to the officer 
to whom process issued, inconsistent with this conclusion, 
were mistakes, or that the process, if issued to, and in a 
proper person, had been subsequently delivered to, and served 
by a proper officer. 

It was accordingly decided in this case, when before this 
Court at a former term, that the above entry of the Justice 
showed a judgment of the Court, that service of process 
had been legally made, and that the Court had acquired 
jurisdiction of the persons of the defendants, and brought 
the case within the rule of law thus stated : '' Where the 
jurisdiction of an inferior court depends upon a fact which 



IN GENERAL TERM, 1873. 309 

Strohmier v, Sturopb, 

Boch court is required to ascertain and settle by its decision, 
such decision is conclusive, when it comes collaterally in 
question." (See the opinion at the former term by Judge 
Newcomb). The simple question that we have to decide iu 
the case now, is this : Is an answer to a suit on a judgment 
showing such a finding as above stated on tbe fact of per- 
sonal jurisdiction, avering that process was not served by a 
proper officer, good ? 

This Court was right in its former ruling that tbe entry of 
the Justice quoted above, was a finding and judgment upon 
a jurisdictional fact, not impeachable collaterally, then such 
an answer as that mentioned is bad. The Court adheres to 
the former ruling. 

Judgment affirmed. 

Council for appellant j cited. • • • • 

The transcript in this case does not show a copy of the 
summons and return, nor does it show affirmatively who 
served the summons, but it does appear that summons was 
duly served more than three days before the judgment 

It was decided in 4 Blackford^ 169, that such a judgment 
was a nullity. 

In 5 Blackfordt 332, it was decided to be erroneouB merelyi 
and not void. 

In 7 Blackford all these decisions are overruled. 

In 9 Ind., 479, it is held under the statute, 2 vol. 1852, p. 
159, that such judgment, in a particular case in Court of 
Record, was erroneous. 

Again, in 28 Ind.^ 39, that such judgment before a Justice 
of Peace is not void. 

If it is only voidable on account of some irregularity of 
service, that irregularity is not available here and now^ as 
there was another mode of correcting an irreguiarity^ and 
having failed to avail himself of that mode, he cannot now 
attack the judgment as void. 

But suppose the summons was served by a person not a 
Constable, may not any one serve a summons, and append 
an affidavit of service, and would a judgment by default be 



810 SUPERIOR COURT REPORTS. 



i^trohaiier c^ Stmnph. 



regular} or woaM it be irreffolar and voidale ooly? or 
wookl it be void ? In New York it would be n^gukur^ and 
only irregular and voidable if served by plaintiff bimaelf. 

8ee2^ot^:Y.lVaellce,(31^My4-5^ How 

tmicfa of this anthority rests on the code and ndes of prato 
tice of N. Vo we cannot say, bat we have no aathority {ocal 
to our State to the contrary. 

These remarks are made upon the theory that by proper 
plea or evidence, under the general issue the service^ waa 
properly before the Court 

On the same theory we may speculate a Ittde on the law 
governing Mayors and Mhirshals of cities, to determine, if 
the qaesiiou had been raised by plea or evidence, whethcsr 
the service had been made by the City Marshal, or not, and 
whether if so made, it was r^gulafj or irregular and voidable, 
or absolutely void ? The Court will see by Chap. 11, §17, 
p. 68, 3 Vol. Statutes (bv Davis,) that the Mayor has some 
jurisdiction as Justice of Peace ^in all matters, civil and 
criminal,** and that §18 of the same, the Mayor may for oer* 
tain reasons deposit his Docket with a Justice, Sicj; and that 
by Chap. 5, p. 75, §29, it is the Marshal's duty to attend upoa 
and execute all process in Mayor's and Justices' Courts, and 
preserve order in all cases where he has served process to 
bring a party into Court — which means of course, in cases 
where the Justice is acting as Mayor — and when so acting 
as Mayor, may he not direct process to the Marshal ? Or 
whether we regard the Justice as acting as Mayor, or as 
Justice, may be not under these provisions issue to a Mar- 
shal, and may not the Marshal make good service? and if 
fiot g^oody is it merely irregular, or i^ it void ? 

We find a strong confirmation of this view of the author* 
ity and duty of City Marshal by reference to 1. O. & H. 221, 
§23, where the Marshal is given all the power that is required 
in this case; under one rule of interpretation, we are to look 
to old law for light 



NoTX. — The jurisdiction of the Justice is to be determined is the appel- 
late Court, not by the amount of the recovery, but by the amount legally 
due or actually claimed at the time Judi^meat was rendered. OrabtrM v 
CUatt, 22 Ala^ 181. 



IN GBNEBAL TERM, 1873. 311 

Strohmier v. Stamph. 

*^ Th« error coin{>Uined of muat appear upon the record^ and onleM points 
intended to be raised for revision, are s^t out in the record with reasonable 
certainty, so as to enable the Court to decide without danger of mistake, 
the exception, or point reserved will be disregarded.'' See HUUard on New 
JHaUf p, 600, See 68, and note 8. 

The general rule is, that the proceedings in the Court below are/>re- 
eumed to he right. Same 605, See, 68, and notes. 

The Court is confined to adjudication of errors of law upon the record, 
and cannot look beyond them. Oatheart v. Obm., 87 Ptfiin., 108. See JSil' 
hard an New Trials, p. 607, See. 66, 661, 24. 

A defect in a summons in a case before a Justice of the Peace cannot be 
taken advantage of in an appeal. 3£etz v. Eddy^ "21 Mies., 18. 

The transcript must show jurisdiction in the Court from which it is sent. 
Bee mUxard on New Trials, 686, Sees. 62-68 ; and the Court above has juris- 
diction on appeal from a Justice of the Peace where the Justice had juris- 
diction, however defective the service may have been, and by taking an 
appeal the appellant gives jurisdiction, even where there was not service. 
Same, 64, and Swingley v. Hojfnes, 22 Illinois, 214. 

Where a limited tribunal exercises jurisdiction which does not belong to 
it, its decision amounts to nothing, and requires no appeal. See Osgood v. 
Thurstef^ 28 Piek., 110 ; Baltimore v. Porter, 18 Md., 284. 

On ^peal firom a Justice, his rulings cannot be revised; Harper v. Baker, 
9 Htst., 116 ; the case must be retried on its merits^ in the Court above. 

" A case will not be dismissed on appeal because the amount of damages 
awarded by the Justice exceeds his jurisdiction, nor because it exceeds the 
ad damnum of the writ. See Wallace v. Brown, 6 Foster, 216; Spear v. 
Place, 11 Howard, 622; Prettyman v. Waples, 4 Harring, 299; McKinly y. 
MeCalla, 6 Binney, 600. See, also, HUUard on New Trials, 604, See. 119. 

As to statutory requirements, as to a return of the proper paper; see 
HUUard on N€w TriiUs, 607, Sec. 133, et seq. See 1 Cheenleaf on Endenee, 
bl^andnote. Also, 6 Mass., 260; 6 N. H., 217; 8 Ihid, 108; 16 John., 146; 
6 Mass., 899; 2 Day, 122; 6 Blackford, 646; 4 <ib., 12, 176.— [RiPOBTn. 



312 SUPERIOR COURT REPORTS. 



Bttd «. Brown. 



IN GENERAL TERM, 1873. 



John B. E. Rbid v. William J., and Mart M. Brown, 

Appellants. 

Practice — answer. 
Fravj)— answer of. 

An mnswer of fhuid withoat ATering pftiticalan amountiag to ftmud is 

bud. 
A general answer of tnad is not g^ood nnder the code. 
An alleged fraudulent grantee of a debtor cannot attack the judgment d 

his creditor, except for ftmud. 

Barbour Sf Jacobs^ for appellant. 
Nichol Sf Jordan^ for appellee. 

Perkins, J. — The plaintiff^ Reid, on the 30th of Septem- 
ber, 1871, obtained a jcfdgment in the Superior Court of 
Marion county, Indiana, against Wm. J. Brown, for the sum 
of two hundred dollars and costs of suit 

Execution was duly issued on the judgment, and returned 
no property found, &c 

The plaintiff, Reid, then instituted suit in the same Supe- 
rior Court, against said Wm. J. Brown and Mary M. Brown, 
his wife, alleging in his complaint that the defendant, Wtn. 
J. Brown, had caused certain property, described in the coiq- 
plaint^ to be conveyed, without consideration, to his wifei 
said Mary M. Brown, with intent to defraud his creditors' 



IN GENERAL TERM, 1873. 313 



Reid V. Brown. 



and particalarly the plaintiff, Reid, who had obtained jodg- 
ment, as above stated, against him. 
The defendant, Mary, answered : 

1. The general denial. 

2. That the judgment against Wm. J. Brown was with- 
out consideration, and obtained through fraud. 

3. That the judgment was except as to fifty dollars, with- 
out consideration, and obtained through fraud. 

A demurrer to the second, and third paragraphs of the 
answer was sustained. 

This ruling was correct : 

An answer of fraud that fails to aver particulars amonnt- 
log to fraud is bad. The simple fact that the judgment was 
not upon a valid consideration, did not necessarily constitute 
it. A general answer of fraud is not good under the code. 
Jenkins v. Longj 19 Lul,j 28 ; Honeywell v. Holmesj IncLy 321. 

The plaintiff recovered judgment against Mary M. Brown. 

She moved for a new trial ; her motion was overruled, and 
final judgment rendered. Alleged erroneous admissions, and 
rejections of evidence was the ground of the motion for a 
new trial. On the trial the Court permitted the judgment 
for two hundred dollars, in favor of Reid against Wm. J. 
Brown, to be given in evidence against Mary M. Brown, 
a stranger to it, and refused to permit said Mary M. to intro- 
duce testimony tending to show simply want of a valid 
consideration for that judgment. 

In thus ruling, the Court did not err. That judgment, (the 
Court rendering it having had jurisdiction,) was admissible 
in evidence to prove the indebtedness of Wm. J. Brown, and 
could be impeached by Mary M. Brown, the alleged fraudu- 
lent grantee, only for fraud, notwithstanding she was not a 
party to the judgment. Sumner v. Coleman^ 20 inrf., 486, 
and cases cited ; Burgess v. Simonson, 45 iV] Y. Court of 
Appeals, 225. This latter case, is, in its facts, much like the 



814 SUPBRIOR COURT REPORTS. 

Reid V. Blown. 

ease at bar, and is a direct authority iD point c^ law, in sop- 
port of the decision in Special Term* In Camdee ▼• Lord^ 
2'N. Y. (hurt of Appeals^ 269, (2 Chnutode) the reasons why 
an alleged fraadulent grantee of a debtor cannol attack the 
judgment of his creditor, except for firaod, are stated. Id 
that case it was not permitted to be shown that the jndg-' 
ment was rendered upon a forged indorsement of a promis- 
sory note. See Stockwell v. Byme^ 22 .fiid, 6. 

^ For the same reasons [say appellant's cooosd, that we 
asked a new trial] we object to the instruction^ of the Court 
numbered five, six, seven and eight, as they are all based 
upon the hypothesis that the wife was estopped from inqair* 
ing what was equitably due to Reid, and was held by the 
Court as concluded by the judgment against her husband.^ 

That she was so concluded, on the points specified, we 
have already shown ; and as these are the only objectiona 
urged against the instructions, we have examined them witb 
a view to no other. 

The judgment b affirmed. 



IN GENERAL TERM, 187a 315 



Farmaa v. The Board of Commissioners of Marion County ei aL 



IN GENERAL TERM, 1873. 



Francis L. Farman, Appellant v. The Board op Commis- 
sioners OF Marion County, Adam Scott 
AND David Nicholson. 

Appeal— /rom Board of Commissioners^ token m>ay he taken. 

Section 81 of the Act creating Boards of Commissioners, is not to be con- 
strued as covering all orders, or entries made by the Board on its 
Records. An appeal under this section is allowed only from such 
decisions of the Board as in their nature are judicial, and not where 
they are purely adminiatraiive. 

An appeal does not lie to this Court from an order of the Board of County 
Commissioners accepting a bid for stone work on the County Court 
House, taken by a rival, and unsuccessful bidder. 

OordoUy Broume if Lamby for appellant. 
Barbour ^ Jacobs — Hendricks, Hord Sf Hendricks, for 
appellee. 

Newcomb, J. — The Board of Commissioners of Marion 
county, having previously determined to build a Court House, 
on the 6th day of November, 1871, ordered their architect 
to advertise for sealed proposals, or bids to do the stone 
work on the Court House, and in obedience to said order 
the architect gave such notice. On the 2d day of January, 
1872, said Commissioners opened the bids and awarded the 
contract to Scott & Nicholson, who were bidders. Farman 
was also a bidder, and upon the contract being awarded to 
Scott & Nicholson, he appealed from said award to this 



316 SUPERIOR COURT REPORTS. 



Farmaa v. The Board of Commissioners of Marion County et aL 



Court, and made the Board of Commissioners and Scott & 
Nicholson parties to the appeal. At Special Term the 
appellees each moved to dismiss the appeal apon the follow- 
lowing grounds : 

1st Because this Court has no jurisdiction of the subject 
of the appeal. 

2d. Because the appeal shows ao cause of action against 
defendants. 

3d. Because said Farman has no interest in the subject 
of the appeal. 

4th. Because no appeal has been taken from the action 
of Board of Commissioners. 

5th. Because the action of the Board of Commissioners 
was one from which no appeal lies. 

The Court entertained the motion, and Farman has ap- 
pealed to General Term, and asks that the order of dismis- 
sal be set aside, and the case tried on its merits* 

There are two questions raised by the record : 

1st. Does an appeal lie from an order awarding this con- 
tract to Scott and Nicholson ? 

2d. If an appeal lies, does the record show that Farman 
had such an interest as to entitle him to take and maintain 
an appeal. ? 

It is claimed that the appeal from the award of the Board 
of Commissioners is allowed under Sec 31, of the act creat- 
ing said Board and defining its powers and duties, which 
reads as follows : 

^ From all decisions of such Commissioners there shall be 
allowed an appeal to the Circuit, or Common Pleas Conrti 
by any person aggrieved; but if such |>erson shall not be a 
party to the proceedings, such appeal shall not be allowed 
unless he shall file in the office of the County Auditor his 
affidavit, setting forth that he has an interest in the matter 




IN GENERAL TERM, 1873. 317 

Parman v. The Board Commissioners of Marion County et al, 

decided, and that he is aggrieved by such decision, alleging 
explicitly hia interest." 

Farman filed an affidavit before the Board of Commis- 
sioners, stating that he had an interest in the matter of let^ 
ting the contract to Scott & Nicholson, that he had made a 
bid for the said stone work which was more than nine thou- 
sand dollars less than the bid of Scott & Nicholson, while 
said Board accepted their's and rejected his, and that he was 
entitled to be awarded the contract, because his was the 
lowest responsible bid for said work. It is urged by counsel 
for Farman that the section of the statute above cited is 
broad enough, and was intended, to cover all orders, or 
entries made by the Board of Commissioners on its records, 
whether such orders should be what are technically called 
Judicial decisions, or the awarding, or making contracts. 
The counsel for appellees urge that the words *' From all 
decisions of such Commissioners there shall be allowed aD 
appeal," &c., means only from such decisions as in their 
nature are judicialt and does not include such as are purely 
administrative. We have been referred to the case of Hanna 
V. The Board of Commissioners of Putnam county^ 29 Ind^ 
170, as sustaining the position that appeals lie from all 
orders of the Board, except such as are purely legiskUive; 
That case was one in which the Board had made an order to 
purchase a piece of land for a poor farm, the county already 
having one, and a tax payer appealed from that order, and 
the Court held that, although the order was a legislative on&, 
an appeal would lie because the Board had no power to 
make such order, as it had already been exhausted by the 
purchase of a poor farm, and the law did not contemplate 
the purchase, and maintaining of more than one poor farm 
by the county. That case is not in point The order of 
Board to construct a Court House, would be similar in prin- 
ciple to the order to buy a poor farm, if the county already 



318 SUPERIOR COURT REPORTS. 

Fnrman v. The Board of Cominissioners of Marion Coanty ei oZ. 

had a suitable Court House, and the Commissioners proposed 
to build another, and maintain both. In that case, accord- 
ing to the above decision, an appeal would lie by a tax- 
payer. 

If that case had been an appeal from an order to con- 
struct a house, or making other improvements on the poor 
farm it would have been nearer in principle to this. 

If an appeal lies from an order making this contract with 
Scott & Nicholson, one will also lie from every contract the 
Commissioners may make in relation to the construction of 
the Court House, and we can not see why not from every order 
made for the employment of a party to do the smallest job 
for the county. This would virtually place the admimstraiive 
business in the hands of the Courts, instead of the Board of 
Commissioners, where the law places it 

We think that the word ^^legislativej^ as used in the case 
of Hanna v. The Board of ChmmissionerSy supraj was used 
inadvertantly for administrative, and according to that opin- 
ion an appeal lies only from administrative orders where the 
Board of Commissioners has already exhausted its powers 
on the subject appealed from. 

We are therefore of opinion that no appeal lies from the 
order of the Board of Commissioners in this case, and the 
Court at Special Term committed no error in dismissing the 
appeal. 

If this appeal can be maintained then it follows, that we 
must reverse the judgment and send the case back to Special 
Term with instructions to try it, and if Farman^s bid was 
the lowest, award the contract to him, thus virtually taking 
the business of the Board of Commissioners into our own 
hands ; or direct them not to contract with Scott & Nichol- 
son on their bid, and leave them to contract with another 
party, or parties, and on such terms a§ they may think best; 
and if any competing contractor is not satisfied he may 
appeal from that award also. 



IN GENERAL TERM, 1873. 319 

Parman v. The Board of CoromisBioners of Marion County et al. 

It cannot be successfally contended that Farman's bid, if 
the lowest, was a contract, until it was accepted by the 
Board. Here we are not called upon to specifically execute 
a contract already made^ but to make one. If it was already 
made, is it not of that class which Courts will specifically 
execute? We do not believe we have the authority on 
appeal to require the Board to accept one offer in preference 
to another. This is a matter that must necessarily be left 
to the discretion of the Commissioners, and for an abuse of 
that discretion an appeal is not the remedy. We do not 
desire to be understood as intimating that there is any abuse, 
as that could only be inquired into on the trial of the merits, 
and this Court having no such jurisdiction, could make no 
such inquiry. 

The conclusion we have come to on the first proposition 
renders it unnecessary to dispose of the second. 

We will, however, say that we do not think Farman shows 
in his affidavit such facts as would entitle him to maintain an 
appeal. 

The judgment at Special Term is affirmed. 



320 SUPERIOR COURT REPORTS. 



Quwack V. Cruse, and the Cabinet Makers' Union. 



IN GENERAL TERM, 1873. 




Charles Quwack v. John P. Cruse, and The Cabinet 

Makers' Union, Appellants. 

Pleading — reply y demurrer — 

Practice — objections, exceptions — special finding, judgment on. 

Evidence — contract. 

Where two paragraphs of a reply are the same in legal effect, and no objeo- 
tion is taken to one of thoin, the defendant is not injured by ovemil- 
ing a demurrer to the other. 

If the Court, at the request of one of the parties makes a special finding of 
facts and conclusions of law thereon, the statute requires judgment to 
be entered in accordance with the conclusions of law, and the only 
mode of saving objections to the conclusions of law is by entering 
exceptions to the same. A motion for judgment on the special finding 
will not present the question ; nor will a motion for n now trial. 

Where A contracted to sell to B all the brick he should make and burn 
except the last kiln, at certain prices for each kiln, and deliver the 
same wherever in the city of Indianapolis, B should direct, and after 
A had burned one kiln he delivered the same to B, who accepted 
them on the contract, and before the second kiln was ready for delivery 
B informed A that if the second kiln had more lime in it than the 
first, he must get another purchaser for it, but that he wanted to see it 
before it was sold, that he wanted the good portions of it, but A must 
get another purchaser for the portion having too much lime, and the 
second kiln had in fact more lime in it than the first, and that it was 
not from any fault or fraud of A that the lime was in the kiln, the 
lime being in the clay, and B. knowing at the time of the contract the 
place where the clay to be used was to be obtained, and before B saw 
the second kiln A sold it to another. 

Held: That the lime in the brick of the second kiln did not justify the 
defendant in refusing to take any portion of the brick. 



IN GENERAL TERM, 1873. 321 

Quwack V. CruBe, and the Cabinet Makers' Union. 

Held: That A after having^ received notice from B, that if the second kiln 
had more lime in it than the first, he would not take it or that he would 
only take the good portions of it, might treat the contract as broken 
by B, and if A chose to waive his right of action against B for the 
breach, and protect himself from loss by selling to another, he bad a 
right to do so, and B, having thus broken the contract cannot complain 

Held: That B having given notice that he would not comply with the 
contract as a whole, he could not, without the consent of A, acquire 
any rights under the contract by offering to examine the kiln and take 

the good portions of the brick. 

• 

MUchel Sf Ketcham, for appellants. 
Taylor J Rand Sf Taylor j for appellee. 

Blair, J. — The complaint in this case is for brick sold to 
the defendant Cruse and ased by Cruse in the erection of a 
building for the defendant, The Cabinet Makers' Union, the 
complaint alleging notice to the Cabinet Makers' Union^ 
under Sec 649 of the Practice Act, and avering that the 
Cabinet Makers' Union was indebted to Cruse at the time 
the notice was given. 

The Cabinet Makers' Union answered in general denial. 

The defendant. Cruse, answered in three paragraphs. 

The first, a general denial ; the second is a counter claim 
alleging that the plaintiff agreed to sell the defendant Cruse 
all the brick he should make and burn except the last kiln, 
at certain prices for each kiln, and deliver the same wherever 
in the city of Indianapolis the defendant should direct ; that 
the first kiln burned by the plaintiff* was delivered, that after- 
wards other kilns were made and burned by the plaintiff, but 
the price having advanced, he failed and refused to deliver 
them as ordered, by reason of which the defendant was 
damaged. The third paragraph of answer was substan- 
tially the same, except that it set out a written contract for 
the sale of the brick. The written contract set out, is sub- 
stantially the same as the contract alleged in the second 
paragraph* 



322 SUPERIOR COURT REPORTS. 

Quwack 9. Cruee, and the Cabinet Makers' Union. 

The plaintiff replied in five paragraphs, all of which except 
the first, which is a general denial, are sahstantially the same, 
and set up a rescision, and abandonment of the contract after 
the making, and delivery of the first kiln of brick. 

There was a trial by tfae Court, and a special finding of 
facts and conclusions of law, upon which the Court rendered 
a judgment in favor of the plaintiff, and against the Cabinet 
Makers' Union, for $281.35, and against defendant Cruse for 
costs. A general exception was entered to the finding; -and 
while it may be a question whether it is sufficiently specific to 
some questions of law under Sec. 341 of the code, we have 
chosen to treat it as though it was in proper form. The 
defendants each filed separate motions for a new trial, which 
were overruled and excepted to. 

The defendant. Cruse, then filed a motion for judgment 
against the plaintiff on the special finding of the Court, not- 
withstanding the conclusions of law, ^'for the reason that 
the conclusions of law are erroneous.*' 

This motion was, likewise, overruled by the Court, to 
which the defendant excepted. 

An appeal was then taken to the General Term. 
The first error assigned is the overruling of the demurrer 
to the amended fifth paragraph of the reply. The plaintiff 
avers in this paragraph that the only agreement between the 
plaintiff, and the defendant was in writing, and is the same 
set out in the third paragraph of answer, and it avers that 
after the brick in the complaint set out were delivered to the 
defendant and were received by him, the said contract was 
Rescinded and abandoned. 

The defendant insists that the reply was bad because it 
did not show that the contract was rescinded before any 
rights had accrued to the defendant under the contract. 

As the defendant admits in his counter-claim that he 
received the first kiln of brick under the contract, and only 



IN GENERAL TERM, 1873. 323 

Qawack v. CruMy and the Cabinet Makers' Union. 

"templains becaa»e other kilns were not delivered, we think 
it safficiently clear, from the reply, that the recision 
therein pleaded, was made before the time for the deliv- 
ery of the brick contained in the other kilns burned by the 
plaintiff, and hence before the rights of the defendant had 
accrued. 

In any event the defendant could not have been injured 
by the ruling, for the fourth paragraph of reply is precisely 
the same in legal effect as the fifth, and to it no objection is 
made. 

The second alleged error is the overruling of the motion 
of the defendant Cruse for judgment in his favor ^on the 
.special finding, notwithstanding the conclusions of law, for 
the reason that the conclusions of law are erroneous." 

If the Court, at the request of one of the parties, makes a 
special finding of facts and conclusions of law thereon, the 
terms of the statute, {Sec. 341 of the code, 2 O. Sf fll, page 
207) require judgment to be entered in accordance with the 
conclusions of law, and the only mode of saving objections 
to the conclusions of law is by entering exceptions to the 
same. A motion for judgment on the special finding will 
not present the question. Neither will a motion for a new 
trial. Pedensj administrator , v. Kir^ et aL, 30 Ind., 18 L ; 
Rathbum v. Wheeler, 29 Ind., 601 ; Luirance et oL, v. Luir- 
once, 32 Ind., 198. See, also, Carter v. The Augusta Oravel 
Road Company. WUson^s Superior Court Reports, 1, 14. 

There was, therefore, no error in overruling the motion. 

Exceptions were, however, taken to the conclusions of law, 
and the next error assigned is the alleged error in the con- 
clusions of law upon the fact« in the special finding. 

The Court found that the contract set out in the 
pleadings was made, and at the time of making the contract, 
the plaintifi was operating a brick yard in the southern por- 
tion of the city of Indianapolis, that he burned one kiln of 



824 SUPERIOR COURT RBPORTa 

Quwock o. Cnue, and the Cabinet Makers' Union. 

brick which was taken by the defendant Cruse on the con-' 
tract, but Crase complained that there was too mach lime 
in them, and that there is dae the plaintiff on the brick so 
taken the sam of 9281.35. That the plaintiff then made 
and barned a second kiln of brick, and the defendant Crase 
before the same was finished, informed the plaintiff that if 
that kiln had more lime in it than the first one bad, he, the 
plaintiff, must get another purchaser for it, bat that he wanted 
to see it before it was sold to another, that he wanted the 
good portion of the kiln, and the plaintiff must get another 
purchaser for the portion having too much lime ; that after 
receiving this information, and before the defendant saw the 
kiln, the plaintiff sold the kiln to one Adams, and after the 
sale the defendant demanded the brick, bat did not state 
where he wanted them delivered. The plaintiff refused to 
deliver them because he had, after receiving the information 
from the defendant^ sold them to another person, and because 
they had more lime in them than there was in the first kiln. 
The Court aUo found that there was more lime in the second 
than there was in the first kiln, and that it was no fault of 
the plaintiff that there was lime in the brick ; that the lime 
was in the clay of which the bricks were made, and that the 
defendant, when he made the contract, was acquainted with 
the place where the clay was to be got Other facts were 
found with reference to the indebtedness of the Cabinet 
Makers' Union to the defendant, notice, &c., under the law 
regulating mechanics liens, &c., which are not necessary to 
be noticed here. 

Upon these facts the Court found as a matter of law that 
the defendant '* Cruse was bound to take the brick under the 
contract as a whole, unconditionally, and not in parcels, and 
that his notice to the plaintiff operated as an abandonment 
of the original contract, and authorized the plaintiff to sell 
the said brick," and that the plaintiff was entitled to recover. 



IN GENERAL TERAf, 187a 325 

Quwack V, Cruse, and the Cabinet Makers' Union. 

As the plaintiflf was not in fault with regard to the lime ia 
the brick, it constituted no valid reason to justify the defend- 
ant in refusing to take any portion of the brick. He con- 
tracted for the brick, knowing the place where they were to 
be made, and the material -of which they were to be com- 
posed, obtained, and no fraud or wrong is imputed to the 
plaintiff. 

The time had not come for the delivery of the second kiln 
of brick, before complaint was made of the lime in the brick 
already delivered, and the defendant was informed by the 
plaintiff, that if the second kiln had more lime in it than the 
first one had, he, the plaintiff, must get another purchaser 
for it ; but that he wanted to see it and would take the good 
portion of the kiln, but the plaintiff must get another pur- 
chaser for the portion having too much lime in it The 
plaintiff is thus informed in advance that the defendant will 
not comply with his contract, for in no event does he propose 
to take all the brick in the kiln. 

The question thus presented is this : was the plaintiff, 
under the circumstances, bound to hold the brick subject to 
the order of the defendant, or might he treat the contract as 
broken, or abandoned by the defendant and dispose of the 
brick to other parties. 

The following principles of law may be considered well 
settled by authority, as well as sustained by good sound 
reason. 

If a party, bound to the performance of a contract at a 
future time, puts it out of his own power to fulfill it, an action 
will at once lie for the breach of the contract, and notice of 
an intended breach of a contract to be performed in future 
has a like effect 

In a recent case in the Exchequer Chamber, Cockburn, C. 
J., on a review of the authorities, says : 

^ The promiisee, if be pleases, may treat the notice of 



326 SUPERIOR COURT REPORTS. 

QawAck o. CroM, and the Cabinet Makers' Union 

intention as inoperative, and await the time when the con- 
tract is to be execated, and then hold the other party respon- 
sible for all the consequences of non-performance; bat in 
that case he keeps the contract alive for the benefit of the 
other party as well as his own ; he remains sabject to all his 
own obligations and liabilities ander it, and enables the other 
party not only to complete the contract, if so advised, notwith- 
standing his previous repudiation of it, but also to take 
advantage of any intervening circumstance which would 
justify him in declining to complete it." 

On the other hand, the promissee may, if he thinks proper, 
treat the repudiation of the other party as a wrongful putting 
an end to the contract, and may at once bring his action as 
on a breach of it ; and in such action he will be entitled to such 
damages as would have arisen from the non-performance of 
the contract at the appointed time, subject, however, to abate* 
ment in respect of any circumstances which may have afforded 
him the means of mitigating his loss." 

Frost V. Knighty Law Reports^ 7 Exchequer 111. See, also, 
Hochster v. De la Tour, 2E^ B., 678; The Danube Sf Black 
Sea Co.j V. Xenos, 13 C. B. (n. s.) 825 ; Averts v. Bowdetij 6 
E. Sf B., 714 ; Reid v. Hoskins, 6 jB. 4* A, 953 ; Barwich v. 
Buba, 2 a B. (n. s.) 563. 

By taking timely measures, on the receipt of notice of an 
intention not to comply with a contract to be performed in 
the future, the injurious effects which would otherwise flow 
from the non-fulfillment of a contract may be averted, or 
materially lessened, and the interests of each party better 
protected. Frost v. Knight, supra. 

In view of these principles of law, we think the plaintiff*, 
after having received notice from the defendant that if the 
second kiln of brick had more lime in it than the first one, he 
would not take it ; or, at least that he would only take the 
good portion of it, might treat the contract as broken by the 



IN GENERAL TERM, 1878. 8S7 

Fox o. Baker. 

defendant, and if he chose to waive his right of action against 
the defendant for the breach, and protect himself from loss 
by selling to other parties, he had a right to do so ; and the 
defendant having thus broken the contract cannot complain. 
Having given notice that he would not comply with the con- 
tract as a whole, he coald not without the consent of the 
plaiiitiff acquire any rights onder the contract by offering to 
examine the kiln, and take the good portions of the brick. 

We see no error, therefore, in the conclusions of law. 

Judgment affirmed. 



IN GENERAL TERM, 1873. 



Henry C. Fox, Appellant, v. Conrad Bakbr, (Governor oi 

the State of Indiana* 

Vacancy — statute construed^ legislative wHL 

JUDOBSHIP. 

On the 14th day of March, 1867, A was appointed Jadge of the Wayne 
Circuit Court, under the act of March 11th, 1867, and commiasioned 
to serve until the general October election, 1867. At the October elec- 
tion, 1867, B was elected Judge of aaid Court, and commiasioned as a 
Cirouit Judge. On the 29th day of April, 1869, B died. On the 4th of 
May, 1869, was appointed by the GoTemor, Judge of said Court, 
and commissioned to serve until the next general election. At the 
next general election in October, 1870, C was elected, and on the 12th 
day of November, 1870, commiasioned to serve for the term of years 

5 



328 SUPERIOR COURT REPORTS. 

Fox 9. Baker. 

to which he may be entitled by virtue of his election, and until hit 
Bucceflsor should be elected, &c. At the October election in 1872, the 
Toters of Wayne county again voted for Judge of said Gourt, and D 
received a majority of the votes. 
Held: That G, who was elected at the general October election in 1870^ 
was entitled to hold the office for the period of four years from the 
date of his commission, and hence there was no vacancy in said ofllce 
at the time of the October election in 1872. 

Bradbury, for appellant. 

Perkins, J. — This cause was commenced by an applica- 
tion for a writ of mandate against the defendant, as Grovemor 
of the State of Indiana, requiring him to show cause wbj 
he should not issue to the plaintiff a commission as Judge of 
the Criminal Court of Wayne county, to which office he 
claims to have been elected at the October election 1872. 

The defendant filed an answer setting out the reasons of 
his refusal to issue the commission. 

An agreed statement of facts was filed, upon which the 
cause was submitted at Special Term, and a finding, and 
judgment rendered thereon for the defendant. 

A motion for a new trial was overruled, and the plaintiff 
appealed to the General Term, the proper exceptions having 
been taken to the rulings at Special Term. 

The facts contained in the agreed statement, as far as 
necessary to the consideration of the question presented, are 
as follows: 

The Wayne Criminal Court was created by the act of the 
General Assembly of March 11th, 1867. On the 14th day 
of March. 1867, the Hon. Wm. A. Peele, was, according to 
the provisions of the act, appointed Judge of said Court to 
serve until the general election in October, 1867. At the 
October election, 1867, the Hon. Nimrod H. Johnson was 
elected Judge, and was commissioned as a Circuit Judge. He 
entered upon the duties of the office, and continued to serve 




IN GENERAL TERM, 187a 329 



Fox V. Baker. 



ms sach antil the 29th day of April, 1839, at which time he 
died. 

On the 4th day of May, 1869, the Hon. George Holland 
was appointed as sach Judge to serve until the next regular 
election thereafter. The next election was in October, 1870, 
at which time the said Holland was elected, and commis- 
sioned on the 1st day of November, 1870, " for the term of 
years to which he may be legally entitled by virtue of said 
election, and until his successor is elected, and qualified." 

At the October election, 1872, the voters of Wayne county 
again voted to elect a Judge of said Court, and the plaintiff 
received a majority of the votes cast at said election for such 
office, all of which was duly certified to the office of the 
Secretary of State, and afterwards the plaintiff demanded of 
the defendant a commission, which was refused. 

The question presented may be briefly stated thus : Was 
the Hon. George Holland, at the time he was commis- 
sioned, after having been elected in October, 1870, entitled 
to hold the office for the term of four years ? If he was, there 
was no vacancy at the time the plaintiff claims to have been 
elected at the October election, 1872, and hence he would 
not be entitled to a commission. 

The question depends upon the construction of certain 
statutes. On the part of the plaintiff it is claimed that the 
commission of the Hon. Nimrod H. Johnson, issued to him 
after his election in October, 1867, entitled him to hold the 
office for four years, which would make his term of office expire 
in October, 1871 ; and that after his death, the election of the 
Hon. George Holland, at the October election, 1870 — and bis 
commission only entitled him to hold the office for the unex- 
pired portion of the term which the Hon. Nimrod H. Johnson 
would have been entitled to hold had he lived ; and hence it 
is claimed there was a vacancy in the office at the October 
election, 1872. 



330 8UPEBIOB COURT REPORTS 



Fox 9. Baker. 



It is conceded, that at the time Johnson was elected and 
commissioned in October, 1867, the impression prevailed that 
the office was that of a Circait Jadge. This impression was* 
however, incorrect, as was afterwards decided by the 8Q|»enie 
Coort in the case of Clem v. The Slaie, 33 JM^ 41& It 
was held in that case that Criminal Circait Courts were not 
OircuU Courts as contemplated by the provisions of the oon^ 
stitution, but were inferior coarts, and the power to create 
soch coarts being given to the Legislatare by Section 1 of 
Article 7 of the Constitution, such coarts possessed a oonstt* 
tational, and valid existence prior the act of May 13th, 1869^ 
which for the first time fixed the term of office of the judges 
of such courts. 

Prior to the act of May 13th, 1869, there was no statute 
fixing the term of office of the Judges of Criminal Circait 
Courts. Fourteen days before the taking efiect of that act. 
Judge Johnson had died, and there was a vacancy in the 
office for the unexpired term for which he had been elected, 
and though there was no law fixing the term of office, it 
could not have been under Section 2 of Article 15 of the 
Constitution, for a longer period than four years. Nine days 
before the taking effect of the act of May l3th, 1869, Judge 
Holland was appointed to fill the vacancy occasioned by 
the death of Judge Johnson. 

At the time of the passage of the act alluded to, there was 
no one holding the office of Judge of the Wayne Criminal 
Court by virtue of an election by the people, and the appoint- 
ment of Judge Holland only extended to the next general 
election. 

It was evidently the intention of the Legislature, by the 
passage of the act of 1869, to fix the term of office of the 
Judges. It was passed to remove all doubts upon that ques- 
tion. 

The section reads as follows : " The Judges of the Crim- 



IN GENERAL TERM, 1873. 331 

Fox V. Baker. 

inal Circuit Courts of this State elected, or to be electedi 
shall be entitled to serve for the term of four years from, and 
after their respective elections, and until their successors are 
elected, and qualified, &c." 

It is claimed by the plaintiff that this section had, and 
was intended to have, a retroactive effect, and fixed the terms 
of the Judges elected in 1867, at four years, and hence the 
term of office of those so elected would expire in 1871 , and 
hence that the act fixed a four years term for Judge Johnson, 
and although he was dead, the time intervening between bis 
death and October, 1871, was but an unexpired portion of 
the term for which be was elected. 

The position of the plaintiff, as far as it relates to the 
judges who were elected in 1867, and who were living at 
the time the act took effect, is conceded to be correct But 
on the 13th day of May, 1869, there was no person holding 
the office of Judge of the Wayne Criminal Circuit Court 
who had been elected by the people. 

At the time of passing the act affecting, and relating to 
public offices, it is to be presumed that the Legislature had 
a knowledge of the existing circumstances. 

It was clearly not intended by the act, that Judges of Crim- 
inal Courts should all be elected at the same time, in order 
to secure uniformity, as is insisted was necessary, in the brief 
of the plaintifi. Laws had already been passed, and judges 
elected in Marion county in 1866, in Allen county in 1867, 
and in the counties of Jefferson, and Vanderburgh in 1868, 
and hence no uniformity in the commencement, or end of 
terms of office was secured, or intended ; nor is such uni- 
formity required by any provision of the Constitution. 

The statute in question was the starting point, no tenure 
of office having been fixed by law before. It is the only act 
relating to the particular offices included therein, and while 
the rules of construction set out in the carefully prepared 



332 SUPERIOR COURT REPORTS. 

Fox 9. Baker. 

brief of the plaintiff are correct, it is the daty of the Court 
first to look to the ^ words and phrases " of the act itself, and 
see if <* their plain and ordinary, and usual sense " will not 
enable us to ascertain the will of the Legislature. 

But we are also referred to the 7th Section of ^ an act 
touching vacancies in office, &c.," which reads as follows : 
^ Every person elected to fill any office in which a vacancy 
has occurred, ^hall hold such office for the unexpired term 
thereof." 1 G.^ 8f H. 672, Sec. 7. This section was enacted 
on the 13th of May, 1852, and is the general law touching 
vacancies in office. It applies to all cases not otherwise pro- 
vided for, both as to offices in existence at the time of its 
passage, as well as those created since. 

The Stale ex reLf BetUon v. The Maiyor of LaporU^ 28 
Ind., 248 ; Baker, ( Governor,) v. Kirk, 33 Ind., 517. 

The cases just cited are urged upon our attention by the 
plaintiff in support of his construction of the statutes. In 
each of them there was an apparent necessity to which the 
Court alludes for giving the construction placed upon the 
particular statutes there involved. In the first, it was that 
each of the two Councilmen provided for from a ward of a 
city might not go out of office at the same time, the second 
presented the same question as to three prison directors. 

In the case of Baker, (Governor,) v. Kirk, it is clearly 
implied by the language of the Court that the filling of a 
vacancy may be specifically provided for, so as to remove it 
firom the operation of the general law before cited. 

In speaking of the act relating to the election of prison 
directors, the learned judge says: ** The Legislature seems 
to have framed the law in view of the seventh section above 
quoted, for it does not specify the time for which a person 
shall be elected to. fill a vacancy, but leaves it to the general 
law." 

We believe the language used in the act before us, dearly 



IN GENERAL TERM, 1873. 333 



Fox 9. Baker. 



indicates a legislative intention to take the case of the elec- 
tion of Judges of Criminal Courts out of the general law, 
and provides that when elected they shall be "entitled to 
serve for the term 'of four years from, and after their respec- 
tive elections." 

We are strengthened in this view from the fact that it has 
been distinctly held, that the general provision heretofore 
cited, {Sec. 7, 1 O. ^ H.^page 672) is not of universal appli- 
cation. See The Governor v. Nelson^ 6 /nd., 497. 

The conclusion to which we have arrived, is, that the Hon. 
George Holland, by virtue of his election by a popular vote 
of the people at the regular October election in 1870, is 
entitled to hold the office of Judge of the Wayne Criminal 
Circuit Court for the period of four years from the date of 
his commission ; and that there was no vacancy in said office 
at the time the plaintiff claims to have been elected. 

The writ of mandate was, therefore, rightly refused, and 
the judgment must be affirmed. 



IN GENERAL TERM, 1873. 



Alonzo Blair v. Jacob N. Busbr, Appellant 

Promissory Note — payee^ maker^ endorser^ consideratitm — 
Evidence — introduction and order of, 

Teitimony to show fraudulent representationB on the part of payees of a 
note to the maker, is irrelevant and inadmUsible against the holder of 
a note for value, purchased before maturity. Though the maker of a 



834 SUPERIOR COURT REPORTS. 

BUir V, Baser. 

note pAjrable in bank may have a Talid defenia to it^ ai agaimt the 
payees, yet a bona fide endorsee for valae may reooTer upon it. It is 
only where want of consideration is proved, or its execution was pro- 
cured by fhiud, that the onus of proving yalue paid, and purrlme 
before maturity, is cast upon the holder. 
It is ordinarily within the province of counsel to arrange the order of time 
for the introduction of evidence, but it is the discretion of the Goait, 
that all causes may be proceeded with, " speedily and without delay," to 
so control the order of proof as to require the observance of the prin- 
ciple of law, that where a fact is necessary to be proved to render sab> 
sequent evidence relevant, such fact shall first be established in evidenoe^ 
without reference to order of time or connection with other testintioiiy. 
Hence, where in a suit by the endorsee fhiud is alleged to have been 
practiced on the maker of a promissory note, the Court may reftiae to 
hear evidence touching such alleged fhiud, until some evidence is given 
bringing knowledge of it home to the plaintiff, before his purchaae of 
the note. 

Barbour Sf Jacobs^ for appellant. 
Hord Sf D., (Shelbyville) for appellee. 

Newcomb, J. — The plaintiff, as endorsee of Wing & Van- 
dusur, sued the defendant on a promissory note payable at 
the First National Bank of Indianapolis. 

The complaint alleges that the note was endorsed to plaintiff 
for value, by the payees, before maturity, and that the same 
was duly protested for non-payment. 

The defendant filed the general denial and five special 
answers. Before going into trial he withdrew the general 
denial and rested bis defense on the aflSrmative answers. 

There was a verdict for the plaintifi, and judgment waa 
rendered thereon over defendant's motion for a new trial. 

In his third answer the defendant pleaded that the note was 
given for a patent right for a bag-holder of which the payees 
were the owners, and that the agent of Wing & Vandaaur 
made certain false and fraudulent representations whereby 
defendant was imiuced to purchase said patent right for cer- 
tain specified territory, of all of which plaintiff had aotice 
when the note was endorsed to him, &c. 



IN GENERAL TERM, 1873. 339 



Blair v. Buser. 



To this answer the plaintiff filed a general denial. 

There are varioas errors assigned, bat as one only is noticed 
in the appellants' brief, we confine oarselves to the qaestion 
raised by that assignment. 

On the trial at Special Term, the defendant was a witness 
in his own behalf, and testified that the note was given for 
the patent bag-holder described in his answer. Divers inter- 
rogatories were then propounded to him by his coansel as to 
the alleged fraudulent representations of the payees to induce 
him to sign the note. The plaintiff objected to the intro- 
duction of the proposed evidence, for the reason that it was 
irrelevant, and inadmissible, unless it should also be shown 
that the plaintiff became the owner of the note after its 
maturity, or without paying value therefor, or with notice of 
the alleged defense. The defendants counsel then stated 
that they declined to say what further facts they expected to 
prove. Thereupon the Court remarked that it would be use- 
less to consume time by introducing evidence tending to show 
fraud on the part of the payees of the note, unless it was the 
intention to introduce evidence to show one or the other of the 
facts indicated by plaintiff's counsel in his objections ; but if 
counsel for the defendant would say that they expected to intro- 
duce evidence tending to prove either of said facts,' the objec- 
tion would be overruled, otherwise it would be sustained. 
To this the defendant's counsel responded, that at that stage of 
the case they declined to make any statement of what they 
intended to prove ; whereupon the Court sustained the objec- 
tion to the several questions bearing on the fraudulent pro- 
curement of the note by the payees, to which ruling the 
defendant duly excepted. 

The note in suit being payable in a bank in this State, a 
bona fide endorsee, for value, would be entitled to recover 
upon it, notwithstanding the maker might have a valid 
defense to it as against the payees. The rule is well estab- 



836 SUPERIOR COURT REPORTS. 



Blair p. Baser. 



lished by nameroas aathorities, that where a wantof conaidei 
ation for negotiable paper is proved, or that its execution wa 
procured by fraud, the law casta upon the holder the onus a 
proving that he gave value for it, and that he purchased : 
before maturity. Harbison v. The Bank of the Staief Z 
Ind,, 133; Bailey v. Bidwell, 13 M. tf W., 73; Sistertnam \ 
Field, 9 Gray, 331 ; Tucker v. Morrill, 1 AUen, 528; fiairl i 
PoUer, 4 Duer, 458 ; iV: Y. tf Va. Stock Bank v. Gibson, i 
Doer, 574 ; 1 Parsons on Bills and Notes, 188 ; Harvey ^ 
Towers, A K 8f L., Eng., 531. 

The form of the issues in the present case relieved th( 
plaintiff from proving that he gave value for the notei a 
that he purchased it before due. These facts were averred u 
the complaint, and not being denied, stood as admitted. Tb( 
only issues were, was the execution of the note procured by tin 
fraud of the payees, and had the plaintiff notice of the franc 
when he purchased it? On each of these issues the burdei 
of proof rested upon the defendant. To prove the hwox 
could avail him nothing, unless he brought notice of Uu 
fraud home to the plaintiff. It did not devolve on the plain 
tiff in the first instance to establish the negative of thi 
defendant's averment that he had such notice. 

Such being the issues, had the Court authority to require 
an assurance, or statement from defendant's counsel that thej 
would follow up the proposed proof of the fraud charged 
by evidence of notice thereof to plaintiff, before he became 
the owner of the note ? 

It is a general rule of practice in this State, that the ordei 
of time for the introduction of evidence in support of tb< 
different parts of an action or defense, must be left to the 
discretion of the party introducing the evidence. Throg^ 
morton v. Davis, 4 Block/., 1 74 ; RushviUe, Sfc, Railroad Co. 
V. McManus, 4 Ind, 275 ; Hudden v. Johnson, 7 Id, 374 
PlaU V. Dawes, 10 Id, 60 ; Fowler v. Hawkins, 17 Id, 213 



IN GENERAL TERM, 1873. 337 

Blair v. Buser. 

Bat this rale is not withoat qoalification. In Nordyke v. 
Shearon^ 12 /iu2., 346, the Sapreme Coart held that the jadge 
presiding at the trial might exercise some discretion in con- 
troling the order of proof, for the purpose of expediting basi- 
ness, and preventing a waste of time. In that case the defend- 
ants pleaded as a set off, certain repairs on plaintiff's prop- 
erty. Having proved the repairs they proposed to prove 
that they were aathorized by one Dagdale, and then to prove 
that the latter was the agent of the plaintifE The Coart 
required them to first prove the agency, and then that the 
agent authorized the repairs. This the defendants declined 
to do, and the evidence was not heard. On appeal the 
Sapreme Court said : ^ We think in this the Court abused 
no discretion. If Dugdale was not the agent, it was a waste 
of the time of the Court to hear evidence as to his ordering 
repairs. And it was no hardship to require the defendants 
to first prove his right ta order them. Without such proof, 
the evidence as to his ordering them, had no relevancy to 
the case." 

In Goings v. Chapman^ 18 Ind.f 194, the like doctrine is 
held. One item in the plaintiff's account was an order given 
by defendant to plaintiff on one Nefi*, ^^ not accepted by said 
Neff." At the trial the plaintiff offered the order in evidencer 
but the defendant objected, on the ground that plaintiff had 
not proved a refusal by Neff to accept the order, and the 
Court refused to admit the evidence unless the plaintiff 
would first prove a presentation to Neff and his refusal to 
accept. The Supreme Court sustained this ruling, on the 
ground that ^ the order, unless it was presented to the drawee 
for payment, constituted no valid demand against the drawer, 
and without proof of such presentation, could not be held 
effective as evidence in the case, and was, therefore, irrelev- 
ant" 

The principle asserted in these cases is, that where a pre* 



338 SUPERIOR COURT REPORT& 

Blair «. Bmer. 

vioas fact U necessary to be proved to render the offered en- 
dence at all relevant, sach fact most be first proved. 

It may not be logically correct to say that in the case at 
bar the notice was the prior fact to be established, as the 
natural order woald seem to be to first prove the firaad ; but 
proof of notice was as essential as the proof of fraad, and 
there was no hardship, or injustice in requiring the profea- 
sional word of defendant's counsel that they would, after 
making their proof on the question of fraud, introdaoe evi* 
dence of plaintifi''s knowledge of the fraud. Had the 
defendant's counsel asserted that they had no evidence to 
offer on the latter point, it would scarcely be claimed that 
the court was, nevertheless, bound to waste its time in heai^ 
ing evidence on the question of fraud. And we think the 
refusal of counsel to state whether or not they had, and 
would produce evidence of notice, might reasonably be 
regarded by the court as an admission that no such evidence 
would be oflered. 

Under such circumstances a court is under no obligation 
to consume time in receiving evidence that in the end must 
prove worthless to the defense. If the defendant had no 
evidence to sustain his allegation of notice, he was not 
injured by the refusal of the court to hear the evidence on 
the charge of fraud, and therefore has no cause of complaint 
If he had such evidence it was easy for him to say so, and 
that was all that the court required as a prerequisite to the 
admission of the rejected testimony. 

The judgment at Special Term is aflirmed with costs. 



NoTK. — OonaideraUon 10 Americcm Law Register^ 844: 

The fact that the purchaser of the asseta was induced to enter into tlie 

agreement by false and fraudulent representations of the other pMtasr 

respecting the partnership assets, is no defense to an action upon tiie iiota 

by a hcna fide holder, so long as the agreement stands, and the defimdaiit 



IN GENERAL TERM, 1873. 339 

Blair v. Biuser. 

ratainf the property transferred without offering to re-asBigpi the same, or 
demanding a return of the note. 68 Barb^ Springer v. Dwyer, 

Where the endorsee of a note produces it on the trial, it is to be pre- 
lamed he is the holder in good faith, and that he received it before matur- 
ity. If the defendant alleges the contrary, the burden of proof is upon 
him. 68 Barb^ Springer v. Dwger, 

10 American Law Register^ 762: 

" A n^otiable note transferred before due in the regular course of busi- 
ness to a creditor, in payment o(^ or as security for a pre-existing debt, 
taken in good fkith and for a valuable consideration, is collectable in the 
hands of the creditor, notwithstanding any equities existing as between 
the original parties thereto. 11 Cbnn., 888; 29 jd^ 479. See also, 1 Ameri- 
can Law Regitier, (k. 8.) 85. Fraud is not available as a defense in cases of 
this character." 

The fundamental principle of the law, applicable to negotiable paper, is 
that it is the representative of money, and may be used in all mercantile 
transactions as money, or as its substitute. 

** The tendency of the law in respect to the legitimate uses of negotiable 
paper, is thus referred to in 1 Parsone <m Notes and BUUy 267, — " that 
whether negotiable paper is sold or discounted, or endorsed over to pay a 
new debt, or for a new purchase, or to secure a new debt, or an old debt, or 
to pay an old debt, it becomes in each case the property of the holder, and 
carries with it all the privileges of negotiable paper, unless there be some- 
thing in the particular transaction which is equivalent to fraud, actual or 
constructive." 

In a note to this case, Redfield says : ** It is common, and entirely in the 
due course of business to endorse a note, or bill in payment, or as security 
for a pre-existing debt, and. such an endorsement of negotiable paper before 
due, will exclude equitable defenses. 

The cases are collected and classified in Atkinton v. BrookSj 26 Vt^ 569^ 
and the note to Le Breton v. Pierce^ 1 American Law Register^ (x. s.) 86. 

As between the original parties to a note a failure of consideration is 
a good defense to an action brought on the note. Britton v. Hall^ 1 Hilty 628 

If the action is brought by the endorsee of the note, and there is no evi- 
dence impeaching his title, proof of fiulure of consideration is inadmis- 
sible. Safne. 

If negotiable notes and bills come into the hands of a third person in good 
fiuth, and for value, without any notice of any defect or title, or of cir- 
cumstances that should create suspicion, he obtains a good title. Belmont 
Branch Bank v. Hoge^ 7 Bot^w^ 648 ; 86 2\r. F., 6 Tif^ ^\ S,C. affirmed. 

A party who has a debt due him, and who takes in payment a bill, or 
note not due, thus extending the time of collecting his debt, until such bill^ 



340 SUPERIOR COURT REPORTS. 



Blair r. Baser. 



or note matures, is a holder for value. Supa-ior Court, Bwn» t. 
40 Barb^ 868. 

Subsequent Notice. ^A bona fide holder of a bill, or note, who takes the 
same with no other knowledge than the {>aper fiimishes, has the right ia 
all cases to treat the parties thereto, as liable to him, in the same manner 
and order, and to the same extent as they appear on the inatniment — any 
knowledge acquired by him, at a subsequent period has no effect. Hogt v 
Lansing, 85 N. K, (8 Tif.) 186. 

A party w)io takes a bill of exchange, or negotiable promissory note for 
value, before maturity, with knowledge of the consideration of the same, 
but without notice of the failure of such consideration, is entitled to recover 
thereon. Davie v. MeCready, 4 E. D. Smith, 565. & C, affirmed, 17 if. F. 
(8 Smith), 280. 

It is no defense to an action against the maker of a promissory note by 
an indorser for value, that the note was made for the accommodation of the 
payee, and was received by the plaintiff with knowledge of that GmL 
P€tHgrew v. Ciave, 2 Hilt, 546. 

The transfer of negotiable paper to a bona fide parchaser, for raliu^belbra 
maturity, gives a perfect title, which will pass to a subsequent 
having notice that the original consideration was fraudulent. ShM ▼. 
f<nd, 4 N. Y. Leg , 06s., 307. 

One who buys a negotiable instrument for value in good &ith, and hefan 
maturity, takes it free from equities existing against the payee. Smith ▼. 
Babock, 2 Wood., C. i AT., 246, 287; 8 McLean, 517; ^ McLmn, 427; 2 
WaU., 110, 121. 

A bona fide holder of a negotiable instrument for a valuable considerataon 
without any notice of facts which impeach its validity, as between antece- 
dent parties, if he takes it under an endorsement made before the same 
becomes due, holds the title unaffected by these facts, and may recover 
thereon, although between the antecedent parties the transaction may be 
without any legal validity. And the holder of any negotiable paper, before 
it is due, is not bound to prove that he is bona fide holder for a valuable con- 
sideration without notice, for the law will presume that, in the absence of 
all rebutting proofs. 16 Pet., 1 ; 20 Howard, 848, 865. 

Suspicion of defect of title, or the knowledge of circumstances which 
would excite such suspicion in the mind of a prudent man, or groes negli- 
gence on the part of the taker at the time of the transfer, will not defoat 
his title. 2 Wall., 110, 121. . 

Where it is proposed to impeach the title of a holder for value, by proof 
of facts, and circumstances outside of the instrument itself, it must be 
shown that he had knowledge of such tacts and circumstances at the time the 
transfer was made. 18 Pet., 65; 14 Pet., 818; 8 71 /{., 80; 4 Afost., 270; IS 
Johns., 805 ; 12 Pick., 845 ; 20 Howard, 848, 865 ; 5 Wend^ 566. 

In 1 American Law Register, 745: * * that express or actual notice 




IN GENERAL TERM, 1873. 341 

^ 

Blair v. Buser. 

tluit the note was without consideration, was not necessary ; that it is suffi- 
cient if the circumstances brought home to the plaintiffs are of such a strong 
and pointed character, as necessarily to cast a shade upon the transac- 
tion, and put them upon inquiry ; that the indorsees are not charged with 
notice because of any want of diligence on their part in making inquiry, 
or if they took the note under suspicious circumstances, provided they 
had no notice actual or constructive of the equities between the original 
parties, but if the transfer of the note was attended with such circumstances 
a^ to put the taker on his guard, or if he must have known therefrom that 
the person offering it had no right to transfer it, then he was bound to 
make inquiry. 

See, 171, 2 Oreenleaf^ 151. But, on the other hand, no defect, or infirmity 
of consideration, either in the creation, or in the transfer of a negotiable 
security, can be set up against a mere stranger to the transaction, such as a 
bonafke holder of the bill, or note, who received it for a valuable cousider- 
ation, at, or before it became due, and without notice of any infirmity 
therein. 

The same rule will apply, though the present holder has such notice, if h« 
derives his title to the bill from a prior bona fide holder for value. 

Every such holder of a negotiable instrument is entitled to recover upon 
iti notwithstanding any defect of title in the person from whom he derived 
H ; even though he derived it fh>m one who acquired it by fhuid, or theft, 
or robbery. 

In a suit by the assignee of a promissory note against the maker, the 
defendant is estopped to set up the invalidity of the note,' as between him- 
self and the payee, if the plaintiff purchased the note upon the promise of 
the defendant to pay it. 1 Blackf,, 2i8; 1 Ind^ 280; 8 Jnd,, 601; 11 /^ 

J, 112.— RlPORTIB. 



342 SUPERIOR COURT REPOR'ra. 



Coaby «. Aduna. 



IN GENERAL TERM, 1873. 



Richard M. Cosbt o. John W. Adams, Appellant. 

Contract— /or buildings inierpreioHan of—^work amd wuUerial 

far J part performance of-— possession under. 
Special Finding — 

Where a written contract for bailding a houae oontained proTiaioiit thai 
the work should he done according to the directiona, and iiiatni&- 
tions of the architect, and that the last payment should only be doe 
when the huilding was completed, according to the plana, and spedflcar 
tions, to the satisfaction of the owner of the bailding, and of the 
architect hy him employed, and the production of a certiflcate ftt>m 
the architect to that effect ; and further, that if any dispate arose in 
regard to the true meaning of the drawings, and spedflcationti or 
the agreement, or as to the quality of the work, or materiala, it waa 
to he decided hy the architect, whose decision should he final, 

Held: That the architect had authority to hind the owner of the bailding 
by directing such changes, or alterations as were found, in the progrea 
of the work to be beneficial, or necessary. 

Held: That the agreement to submit matters of dispute to the architect 
was binding upon the parties. 

Held : That the owner of the building had a right to demand the certificate 
of the architect as evidence of the completion of the building, before 
making the final payment. 

Held : That if the contractor applies to the architect for the certiflcate, and 
he obstinately, or un reasonably refUses to furnish the same, the con- 
tractor may establish his right to recover by other evidence. 

Held : That the production of the certificate may also be waived by the 
owner of the building, or by mutual agreement of the parties, and wtch 
waiver may be shown by direct evidence, or it may be implied fkt>m 
the acta of the parties. 



IN GENERAL TERM, 1873. 843 

Cosby V. Adams. 

Where the contractor saes in such case for work and labor done, and iiial»> 
rials famished in erecting the building, and not apon the special oon* 
tract, if be makes out a case where he is entitled to recover, notwith* 
standing the written contract, wbich is set up in answer, the produo- 
tion of the certificate of the architect^ or showing a demand, and 
reAisal of the same, is not a pre-requisite to his recovery. 

A part performance of that portion of the contract, dependent upon tha 
production of the certificate of the architect, by the owner of the 
building without objection, or protest, tends to show a waiver of the 
production of the certificate. 

Where it is shown that the owner of the building, while the work was in 
progress, accepted a portion of it by taking possession of, and occupy- 
ing it, and afterwards took possession, and occupied the balance, thus 
deriving benefit from the labor of the contractor, he cannot refhse to 
pay the reasonable value of the labor done, and for the materials^ 
though the written contract was not irt all things complied with. 

Where special findings of a Jury, in answer to interrogatories, do not 
embrace all the issues, and other facts might have been found ftnom 
the evidence that would sustain the verdict^ a motion for Judgment oa 
such findings should be cfverruled. 

Oordon, Lamb Sf Browne^ Bradbwry Sf Bloomer j for appel- 
lant 

TayloTj Rand S^ Taylor^ for appellee* 

Blair, J. — This is a suit by the plaintiff to recover for 
work and labor done, and materials furnished in erecting a 
dwelling house for the defendant, and to enforce a mechanio't 
lien. 

The defendant answered in five paragraphs : 

The first is a general denial. 

The second alleges that the work was done, and mateiialt 
furnished under a written contract, which is made a part of 
the answer, and that the defendant has paid all that was due 
the plaintiff by the terms of the contract ; that the last pay- 
ment was only due upon the completion of the buildingi 
according to the plans and specifications, to the satisfaction 
of the defendant and the architect, and the production of a 

certificate from the architect to that effect The answer far* 
6 



844 SUPERIOR COURT REPORTSl 



Cathj V. 



tber mllegiog that the bailding wms not completed by tke 
tiine agreed apoo ; that the plaintiff abandoned it in an 
onfinisbed' conditiony and has not procured, and cannot pn>> 
core the certificate of the architect ; and that tbe aaKmnt 
paid on the contract more than pays tiie plaintiff fcirthe 
work done and material farui»he(L 

Tbe third paragraph is in the nature of a cross complaint, 
or counter claim, setting oat the written contract as before. 
It is alleged that the work was to be done for 93^13 of 
which som 91f913 was to be paid by the defendant on demand 
and when the work was done according to the contract, and 
the certificate of the architect produced, a note on one Reed 
for 91,000, and 9700 in cash was to be paid ; and that the 
plaintiff has not complied with his contract bj finishing the 
bouse within the time agreed upon ; that it is not yet com- 
pleted, bat was abandoned by the plaintiff in an onfinished 
condition ; that tbe work was not done in a workmanlike 
manner, nor to the satisfacrion of the architect ; that the 
defendant has paid the 81.913. and delivered the Reed 
note to the plaintiff, and has paid cash, and goods to the 
amoont of 970.50, and for work done in completing tbe 
bnilding $190.73, and that there yet remains certain- work to 
be done, and changes made, to the value of 91,000, in order 
to complete the building according to the contract. 

The fourth paragraph is a plea of payment. 

The fifth is a set-off for goods, &c 

The plaintiff replied in seven paragraphs. 

The first is a general denial of each paragraph of answer. 

The second is to the second paragraph of answer, and 
avers that the written contract was departed from, and the 
plan of the house changed, and a large portion of work done 
was beyond the terms t>f the contract, all of which was 
the knowledge, and consent of the defendant 



r\ 



IN GENERAL TERM, 1873. 345 



Coeby v. Adams. 



The third reply is a geoerai plea of performaace of the 
written contract 

The fourth paragraph alleges that the specificatiobs were 
not in existence at the time the written contract was madei 
bat were prepared afterward, and were different from the 
work as represented to the plaintiff it was to be, at the time 
the contract was made. 

The fifth is, that the indebtedness set up in the fifth para* 
graph of the answer has been paid. 

The sixth is, that the delay in completing the building was 
occasioned by negligence of the defendant in delaying plaas^ 
and oCher work, and that the house was completed before 
suit was brought. 

The seventh alleges that the architect refu:«ed to act as 
referee, and was so prejudiced against the defendant as to be 
unfit to act as umpire, and the plaintiff could not procure his 
certificate. 

The written contract, whiph is made a part of the answers 
referring to it, contains the following provisions: 

The defendant agrees to perform all the work ^ mentioned, 
and contained in the accompanying specifications, as modi- 
fied, and explained on pages 17 and 18, and which includes 
all carpenter work, lumber, hardware, tin-work, and roofing, 
and according to the drawings prepared, and referred to, and 
according to the directions, and instructions, and explanations 
of the architect employed by the said J. M. Adams, at, and 
for the sum 83,613," of which sum 81,193 is to be paid 
when demanded by the plaintiff Cosby; ^ and when the work 
is completed, and on the certificate of the architect, a note 
made by J. B. Earl Reed for 81,000, and seven hundred 
dollars in cash, shall be paid on final settlement." 

The work to be completed in a workmanlike manner by 
the 12th of June, 1872, ^Ho the entire satisfaction of the owner, 
and the architect employed by him, and in case of any dis- 



346 SUPERIOR COURT BEPORT& 

Cotby 9. Adun*. 

pate arising ia regard to the trae meaniag, or iotent of the 
drawings, specifications, or this agreement, or in regard to 
the quality of work, or material used, or to be need in 
said contract, the same shall be decided by the architect, 
whose decision shall be binding, and conclusive between the 
parties." 

The agreement concludes as follows: ^For the faithful 
performance of all the articles, and agreements before men- 
tioned, the said J. W. Adams, and R. M. Cosby, parties to 
the first, and second part as aforesaid, do hereby severally 
bind themselves, their executors, administrators and, assigns, 
each to the other, in the penal sum of 92,000, firmly by these 
presents." 

Signed by, J^ W. Adams, 

R. M. COSBT. 

The specifications and drawings are too lengthy for inser- 
tion here, and will only be referred to, as may be necessary, 
in passing upon the points in review. 

The evidence both of the platntiflf and defendant shows 
that several items of extra work was done, and additional 
materials furnished by the plaintiff. The defendant Adams 
admits in his testimony that he authorized some items of 
this character. The evidence of the architect shows that 
other items were authorized by him, and the testimony of 
the plaintiff, and his witnesses, shows still other items. It is 
urged that the architect had no authority from the defendant 
to enlarge the contract by directing, or agreeing to extra 
work. The architect is shown by the contract to be in the 
employ of the defendant, and by the terms of the con- 
tract, the work was to be prepared, " according to the direc- 
tions, and instructions, and explanations of the architect 
In view of this clause in the written contract., the defendant 
cannot say that the architect had no authority to direct such 
changes, and alterations as were found to be necessary, or 



IN GENERAL TERM, 1878. 347 



Cosby r. Adams. 



beneficial in the progress of the work. This view is further 
strengthened by the fact that changes were made by the 
architect, to which thedefcndant either expressly assented, or 
acqaiesced. In sach case, how coaid the plaintiff know 
when the authority of the architect ceased, or how far it 
extended, unless notified by the defendant ; and the evidence 
does not show that any such notice was given. 

The evidence is voluminous, and in many particulars con- 
tradictory. 

It is urged that because the plaintiff never procured the 
certificate of the architect, or does not show that he demanded 
it, be cannot recover, and is not entitled to maintain the suit. 

The jury, in answer to interrogatories, found that no such 
certificate had been furnished, or demanded by the plaintiffl 

The evidence shows that during the progress of the work, 
trouble arose between the plaintiff, and the architect, and at 
one time it would seem that work was suspended on that 
account. The character of the trouble, and cause of the 
suspension does not appear from the evidence. 

The plaintiff, defendant, and the architect, met at the office 
of the latter, and it was there agreed that the work should 
again proceed under the care of a Mr. Parks, as superinten- 
dent, in the employ of the plaintiff Under this agreement 
the work proceeded. 

That disputes arose about the work, &a, is evident from 
the testimony ; but there is no evidence pointing out any 
special matters of dispute, that were ever decided by the 
architect, or that was referred to him for decision under the 
terms of the contract It is not shown that either party 
refused to abide by the decisi6n of any matter submitted, or 
referred to the architect, or that either party refused to sub- 
mit any matter of dispute to the architect 

The trouble between the architect, and the plaintiff was 
evidently of such a character, that there was no good feeling 
on the part of either toward the other ; and there is evidence 



348 SUPERIOR COURT REPORTS. 

Cosby r. Adams. 

tending to show that the architect did not want the plaintiff 
to come about the building, and they did not on any occa- 
sion seek each other's company. That there was one mis- 
take in the plans, or specifications, that caused extra labor on 
the part of the plaintiff, is admitted by the architect, who 
attempted to excuse himself by saying it was a mistake of 
his clerk. That there was fault on both sides, is perhaps true. 

On the final certificate of the architect, the note on Reed, 
and cash in the sum of $700, was to be paid to the plaintiff. 

The authorities cited by the defendant sho'Ctr that the agree- 
ment made by the parties was one which was binding upon 
them, and the defendant had a right to demand as evidence 
of the completion of the work, the certificate of the archi- 
tect Smith V. Brady, 17 N. Y., 173 ; The United States y. 
Robeson, 9 Peters, 319. 

These cases however show, and the rule is, that if applica- 
ti6n is made to the architect for the certificate, and he abso* 
lutely, or unreasonably refuses to certify, the plaintiff may 
establish his right to recover by other evidence. It is a con- 
dition that may also be waived by the party for whose bene- 
fit it was made, or by the mutual agreement of the parties. 
This may be shown by direct evidence of such agreement, or 
waiver, or may be implied from the acts of the parties. 

There is no evidence showing such an agreement of the 
parties. Nor is there any evidence showing a demand on 
the part of the plaintiff for the certificate. The architect 
says if demand had been made he would not have given it 
A demand would therefore have been useless. The defend- 
ant therefore lost nothing by the failure on the part of the 
plaintiff to make a demand, and has shown by his own wit- 
nesses, that a demand would not have led to a settlement of 
the matters of account, and the plaintiff has therefore sought 
to establish his claim by evidence other than by the certificate 
of the architect. As the complaint is upon a common coaAt 



IN GENERAL TERM, 1873. 349 



Cosby V. Adams. 



for labor done, and materials furnished, and not npon a special 
contract, if the plaintiff made oat a case where be is entitled 
to recover on the complaint, notwithstanding the written con- 
tract set up in answer, the production of the certificate of the 
architect, or showing a demand for it and a refusal, is not a 
prerequisite to his recovery. The whole question was sab- 
mitted to the jury, under the issues joined by the parties. 

The evidence shows that the defendant took possession of 
a part of the house before the other portions were completed, 
and there is also evidence tending to show that in consider- 
ation of getting possession of a part of it, the defendant 
gave the plaintiff farther time to complete the other portions. 
The evidence does not show when the other portions of 
the hoase was occupied, or taken possession of by the 
defendant. 

The evidence further shows that the note of Reed for 
#1,000 was delivered to the plaintiff; but the time when, is 
not disclosed. By the terms of the agreement the defendant 
was under no obligation to deliver it until the certificate of 
the architect was produced. The evidence does not show 
that there was any claim made by the defendant at the 
time the note was ddiivered, that the contract was not per- 
formed, or any declaration on his part that he would with- 
hold the payment of the #700, on account of the certificate 
not having been furnished. Here, then, was a part per- 
formance by the defendant of that portion of the contract 
dependent upon the production of the certificate, without 
any objection, or protest, and this would tend to show a 
waiver of the production of the certificate. 

We will consider in this connection the third instruction 
asked by the defendant, which was refused by the Court 
This instruction, after reciting the terms of the contract, is 
as follows : ^< Upon this written contract I instruct you that 
in order to maintain this action, it was necessary for the 



850 SUPERIOR COURT REPORTS. 



Coebv r. Ad«mt. 



plaintifi to complete the work according to the terms of the 
contract, and procure from the architect a certificate that the 
work was completed to his (the architect's) acceptance. Bat 
if the plaintiff completed the work according to the oontracti 
and applied to the architect for a certificate, and the architect 
wrongfully, or fraudulently withheld the certificate^ then it 
would not be necessary to the maintenance of this action.'' 

This embodied the theory of the defendant, and professes to 
cover the entire right of the plaintiff to recover. The action, 
as before stated, is upon a common count on work and labor, 
and materials furnished. 

There was evidence tending to show that the workman* 
ship was not good, and was not in accordance with the 
specifications. This was met by other evidence tending to 
show that the work was well done, and specifications com- 
plied with. 

That there was extra work done is clear, but as to the 
amount, and value of it, the evidence is quite contradictory. 
There was also evidence tending to show that some work 
was left undone. 

Again, the evidence showed, as before stated, that the 
defendant while the work was in progress, accepted a por^ 
tion of it by taking possession of, and moving into a part of 
the house, and afterwards he took possession of the balance, 
thus deriving benefit from the labor of the plaintiff In such 
case, he could not refuse to pay the value of the plaintiff's 
labor, and materials furnished, though the written contract 
was not in all things complied with. WolcoU v. Yeager^ ei 
aLj 11 Ind., 84; Kerstelter v. Raymondy 10 Ind., 199; 
McCUtre and others v. Secresti5 IncL^ 31 ; Wkeailey v. MiS" 
col, lb., 143; Persons v. McKibben, lb., 26; Coe v. Smiikf 
4 Ind.j 79 ; Major ei al. v. McLester, lb., 591 ; McKinmep v* 
Springer, 3 Ind., 59 ; Lomax v. Bailey, 7 Blackf.^ 599. 

This right of the plaintiff to recover, if he accepted the 



IN GENERAL TERM, 1873. 351 



Coeby «. AdamB. 



work, though it was not done in accordance with the written 
contract, is entirely ignored by the instructions asked by the 
defendant ; and it was, therefore, rightly refused. 

The first, and second instructions given by the Court, we 
believe to contain correct statements of the law applicable 
to the issues, and the evidence. These instructions left the 
question of the waiver of the certificate of the architect, the 
acceptance of the building, and work of the plaintiff, by the 
defendant, as well as whether the certificate was unreason* 
ably refused, to be determined from the evidence as ques- 
tiods of fact. They also covered the questions presented 
about extra work, failure to complete the house in the time 
agreed upon, and damages to the defendant on account of 
all alleged failures, on the part of the plaintiff, to comply with 
the contract 

The Court cannot disturb the finding of the jury upon 
these questions, nor can we say, from the evidence, that the 
evidence that the damages are excessive. 

The special findings of the jury in answer to interroga- 
tories, do not embrace any questions relating to the accept- 
ance of the building by the defendant, or any waiver on the 
part of the defendant, or unreasonably withholding of the 
certificate of the architect ; and hence, ias they do not cover 
all the issues, and other facts might have been found from 
the evidence that would sustain the verdict, the motion for 
judgment on the special finding was rightly overruled. 

The judgment is, therefore, affirmed. 



352 SUPERIOR COURT REPORT& 



Hill V. Donaldton. 



IN GENERAL TERM, 1873. 



Gborob W. Hill, Appellant, o. Claiborne Ia Donjkumoa* 

Error — assignment of — 
Exceptions. 

Though an exception is daly Uken to the refVual of th« Ooori to grant a aaw 
trial, yet if the ruling of the Court is not aMicrned for error, ihm allcgBd 
errors accruing on the trial below, and on which the motion for a 
trial is based, cannot be considerod on appeal. 

Where it appears f^om the bill of exceptions, that no evidence wai 

to a paragraph made the subject of demurrer, the ruling of the Cout 
on this demurrer cannot be assigned for error, as the party demurring 
is not injured thereby. 

E. A. Parker^ for appellant. 
Hanna Sf Knefiery for appellee. 

Newcomb, J. — The plaintiff sned to enforce a mechanio^ 
lien on the real estate of the defendant, to discharge an 
alleged indebtedness of one Jacob Coffman to plaintifi^ for 
lumber furnished the former, and used in the constractioa of 
a dwelling house, erected by Coffman for the defendant. 

There was a jury trial, a finding for the defendant, and 
judgment in his favor over plaintiff's motion for a new triaL 

The plaintiff appealed to the General Term, and assigned 
the following errors: 

1. The overruling of plaintiff's demurrer to aixth para* 
graph of defendant's answer. 



/^ 



IN GENERAL TERM, 1873. 353 

Hill V. Donaldson. 

2. The refasal of the Court to permit the plaintiS to 
prove certain items of his lumber account 

3. That the verdict is not sustained by sufficient evi- 
dence. 

4. That the verdict was contrary to law. 

5. That the charge of the Court was error in law. 
None of these assignments, save the first, present any 

questions of law on appeal. They were proper grounds 
for a motion for a new trial, and were presented as such at 
Special Term. 

An exception was duly taken to the refusal of the Court 
to grant a new trial, but that ruling is not assigned for error. 
We cannot, therefore, consider these alleged errors occurring 
at the trial. 

WliUinger v. Nelson^ 29 Ind.^ 441 ; Herrick v. Buniing^ 
Ib.j 467 ; Smith v. CrigUr^ Ib.j 516 ; Lingerman v. Nave^ 31 
Ib^ 222 ; StillweU v. CliapptU, 30 Ib.j 72. 

There is a bill of exceptions in the record, setting out the 
evidence given on the trial of the cause ; and it appears from 
the bill of exceptions that no evidence was given or offered 
in support of the sixth paragraph of the answer, conse- 
quently it is not necessary to decide as to the correctness of 
the ruling on the demurrer to that paragraph, as it is mani- 
fest that the plaintiff was in no respect injured thereby. 

The judgment at Special Term is, therefore, affirmed, with 
costs. 



354 8UPEBI0R COURT REPORTS. 



Sigler •. Coder Mid Okipenter. 



IN GENERAL TERM, 1873. 



Jamkii Siglbr v. N. B. Codbr and Ira H. Carpbhtbr, 

Appellant 

Chobb in action. 

A cAoM^'it-otf^ion, or an j ipeoiflc article, other than money, to operate as 
payment of a debt, it must be affirmatively shown that it was received 
by the creditor upon an express agreement that it should eo operala. 

No agreement can be implied from the simple reception of a note, accept- 
ance, or other promise by the creditor that such is takva as payment, or 
extinguishment of an original debt. 

McDonald Sf BiUler^ for appellant 
Tesiy Bums Sf WtiglU^ for appellee. 

Perkins, J. — Sigler sued Coder and Carpenter on a bill 
for lumber delivered to them as partners. Coder nnade 
default Carpenter answered, that the partnership had been 
dissolved, and that after its dissolution Sigler received from 
Coder some money, and Coder's individual acceptancei pay- 
able at a bank, at thirty days, in full payment of the bill for 
the lumber, whereby he. Carpenter, was discharged from lia- 
bility on the bill. The plaintiff replied in denial. The cause 
was tried by the Court Finding for the plaintifi^ and judg- 
ment accordingly. 

The Court made a special finding of facts, and stated its 
conclusions of law thereon. The defendant excepted to the 
conclusions of law, and moved for a new trial on the ground 



IN GENERAL TERM, 1873. 35S 

Siglor V, Coder, and Carpenter. 

that the finding of facts was not jastified by the evidence. 
The motion was overruled, and a bill of exceptions presents 
the evidence to this Court 

The facts found by the Courts so far as they are material 
to the questions to be decided in this appeal, are substan- 
tially these : That on the 25th day of October, 1871, the 
plaintiff, who resides at Greencastle, Indiana, shipped to the 
defendants, then partners, and residents of Indianapolis, at 
their request, the lumber for the price of which this suit was 
brought; that the lumber was received by the defendants on 
the 27th of October, two days after its shipment; that the 
partnership between Coder and Carpenter, defendants, was 
dissolved on the 2d day November following. The special 
finding proceeds: 

<« On the 30th day of November, 1871, the plaintiff called 
at the office formerly occupied by Coder & Carpenter, at the 
city of Indianapolis, to demand, and receive payment for the 
lumber, and he was there informed by the defendant Coder 
that his money had been sent to him at Greencastle, where- 
upon the plaintifi returned home, and instead of money he 
found the acceptance of the defendant, N. B. Coder, of a 
draft at thirty days sight, payable at Woollen, Webb&Co.'s 
Bank, Indianapolis, Indiana, for the sum of three hundred and 
sixty-one dollars and sixteen cents, the amountdue on the lum- 
ber, five dollars having previously been paid the plaintiff there- 
on. The plaintiff then signed the draft, and indorsed it for col- 
lection to the Farmers' Bank, Greencastle, Indiana. After 
the expiration of the thirty days, the acceptance was returned 
to the plaintiff protested for non-payment 

Afterwards, on the 9th day of January, 1872, the plain- 
tiff's agent called at the same place, with the protested accep- 
tance, and demanded payment for the lumber, whereupon 
the defendant, Coder, made some objections about the lum- 
ber not having been properly culled, and claimed some reduc 



306 SUPERIOR COURT REPORTS. 

Sigler V, Codor, and Carpenter. 

lion from the amoant, and the plaintiffs agent, without aathor- 
ity from the plaintiff, agreed to -receive three hundred and 
forty-five dollars in payment for the lumber, and the dofeod- 
aot, Coder, agreed to pay the said sam, and promised to meet 
the said agent at the Sherman House, in Indianapolis, and 
pay him the money on that same day, prior to the departure 
of the regular train for Greencastle ; the defendant Coder did 
not meet the agent by the time agreed on, bat afterwards on 
the same day, he came, and paid the agent of plaintiff one 
hundred and forty-five dollars, and tendered him an accept- 
ance of a draft by N. B. Coder for two hundred dollars, one 
month after date, (January 9th, 1872,); the agent of plaintiff 
refused to take the acceptance, but on Coder assuring him 
that it would be paid promptly, he took the draft and deliv- 
ered it to the plaintiff, who signed it and indorsed it to the 
Farmers' Bank as before. The draft was never paid by the 
defendant Coder, but was returned protested after the expira- 
tion of the month. The agent of plaintiff had no authority 
from plaintiff to receive the acceptance of Coder in payment 
for the lumber. 

There was no express agreement by the plaintiff, and 
defendant, or either of them, that the acceptances of Coder 
should be taken as payment of the original debt, and in dis- 
charge thereof. On the foregoing facts the Court finds as 
conclusions of law, that no agreement can be implied, that 
the acceptance of Coder was received by the plaintiff in dis- 
charge of the debt, and that the plaintiff is entitled to recover 
of the defendants Nathaniel B. Coder, and Ira H. Carpenter 
the sum of two hundred and sixteen dollars and sixteen 
cents." 

Is this finding of the Court on the facts correct? Are the 
conclusions of law upon the facts correct ? It is very clear 
that the evidence discloses no express agreement to receive 
the acceptances as payment Nor does it show any con- 




IN GENERAL TERM, 1873. 357 



Sigler V. Codor, and Carpehter. 



sideration, either by way of proQt to Sigler, or loss to Car- 
penter for the release of the latter. The acceptances were 
worked into the plaintiff's hands against his desire, and by a 
sort of imposition. All he did with them was to hold them 
till due, to ascertain if they would produce payment of his 
demand. It is well settled, that no agreement can be inferred 
from the simple reception of a note, a promise tx) pay, that 
such note, or promise is taken as payment. And it is equally 
well settled that the reception of a note for a debt due, does 
not operate as payment, unless it be agreed that it shall so 
operate. 

Money is the only legal tender for the payment of money 
debt^, and the only thing that operates per se as payment 
Hence, if it is claimed that a chose-in-action, or any specific 
article, other than money, has operated as payment of such 
debt-, it must be affirmatively shown that it was received by 
the creditor upon an agreement that it should so operate. 

In Frisbee et al v. Lindley, 4*^., 23 /nrf., on p. 517, the Court 
say, ''The receipt of the bills on Pierce by the plaintiff, did 
not, of itself, constitute a payment on the bill sued on ; but 
to have that effect they must have been accepted as such 
payment." 

In Hunting'ton v. Colman^ 1 Blackf.y 348, the Court uses 
this language : '' The cancelling of one obligation for the 
purchase money, by the giving of another, would not be a 
payment of the money. The obligation to pay the money 
stands so far independent of the evidences of that demand, 
that they may be varied from time to time, and not affect 
the obligation itself. So that the Court would not have 
instructed the jury, that the taking up of the original note 
for the purchase money, and the giving of another for the 
balance then due, was an actual payment of the money." 

So in Kiser v. Ruddick^ 8 Blackf.y on p. 385, Judge Smith, 
citing authorities, says : '' A creditor may accept notes, or 



3tS8 SUPERIOR COUBT RBPOBT& 

Sigler V. Coder, and Oftipenier. 

other chosea-in-action, either in payment, or for better secarity 
only, but the delivery of each choaea-in-action ia not pay- 
ment nnlesa they are received aa Boch, or produce payment." 
See, also. Louden v. Birt^ 4 bd^ 566. The anaettled qaea- 
tion on this subject has been, and now ia, not whether there 
mast be an agreement, that a chose-in-actien -given for a debt, 
shall operate as payment, in order that it may have that 
effect, but as to the kind of an agreement necessary in such 
case, that is, whether the evidence must show an ezpresa agree- 
ment, or only circumstances, and acts from which the agree- 
ment may be legally inferred. Courts in different States differ 
on this point Judge Sharswood, in his edition of Bilea on 
Bills, top p. 284, collects the conflicting cases. Much the 
larger number sustain this proposition as laid down by him: 

^ A bill of exchange, or promissory note, either of a debtor, 
or any other person, is not payment of a precedent debt, 
unless it be so expressly agreed." 

See, also, Elwood v. Deifendorff 5 Barb^ {N. T.) it, a 
strong case to the same effect 

We do not find that this precise point has been ruled upon 
by our Supreme Court, except in a single case ; that of T^j^ner 
r. Stoops, 1 L /lut, 22. In thtft case the Court hold that the 
contract must be express. Tn the case at bar, then, as there 
was no express agreement, and no facts proved, on which 
even an implied agreement could reasonably be found, there 
can be no doubt of the correctness of the judgment below., 
and it must be affirmed. 

Affirmed. 



NoTX. — See SmitKn Mercantile Law^ p. 847, et $eq^ iind notes on lalijeet 
Itt Of wtpension, 2d. ExHnffiiishment, 8d. Saiinfaction. 4th. Di^char^ 
on billt and notes. See, also, Chitty <m ContraetSj p, 788, ei m^, and notes ; 
also, 1 Blaekf^ 848, and notes. 



8UPEBIOB COURT REPORTS. 359 



Hill «. Armttrong. 



IN GENERAL TERM, 1873. 



Oeorob W. Hill, Appellant, v. William S- Armstrong. 

Exceptions — bill of— 
Lien — mechanict. 

Ko quettion it presented on appeal, as to the correctness of any finding, 

matter of evidence, or ruling, without it shall be brought up by a bill 

of exceptions. 
It ieem$ that where notice of a lien shows all existing indebtedness, and is 

silent as to any credit thereon, proof that a credit was given would 

be inadmissible. 

E. A. Parkefy for appellant 

Newcomb, J. — The complaint in this case, sets forth, that 
in the year 1871, defendant contracted with one Jacob Coff- 
man to erect upon a lot of defendant, a certain dwelling 
hoase ; that plaintiff sold and delivered to Coffman lumber 
and material for said house, which was used therein ; that said 
lumber, &c., was sold to said Coffman upon a credit of ninety 
days ; that the same was of the value of one thousand dol- 
lars, no part of which had been paid, and that on November 
2l8t, 1871 and within sixty days from the date of the last 
delivery of material to Coffman, plaintiff filed in the Record- 
er's office of Marion county, his notice of intention to hold 
a lien on the lot, and building of defendant for the amount 
so due from Coffman, which lien was duly recorded, &c. 

7 



360 SUPERIOR COURT REPORTS. 

Hill V. Armstrong. 

« — - — 

The notice was »et oat in the complaint as follows : 

Indianapolis, Noveml>er 20, 1871. 
Wm. & Armstrong, and all others concerned: 

Yoa are hereby notified that Jacob Coffman, whom yoa 
employed to erect a dwelling house on lot four, and 28 feet 
north side lot 3, in Martindale's Central Addition to the city 
of Indianapolis, is indebted to me in the sum of one thou- 
sand dollars, on account of lumber furnirthed him, and which 
was UHcd in the erection, and construction of said dwelling 
house, and that I hold you, andsaid property responsible to 
me for said sum of one thousand dollars ; said lumber so 
furnished, was furnitthed by me at the special instance, and 
request of said Coffman, contractor as aforesaid, and within 
the last sixty days. Geo. W. Hill.*' 

This notice was recorded November 21st, 1871, and the 
suit was commenced November 19, 1872. A demurrer to 
the complaint was overruled ; is!*ues of fact were then found ; 
the cau8e was submitted to the Court for trial, and a special 
finding of the facts, and conclusions of law was had, and 
judgment rendered on such finding, in favor of the defendant 

The plaintiff excepted to the conclusions of law, and 
assigns the same as error. 

The finding, after setting out the title of the cause, is as 
follows : 

^* I find in this case that Armstrong made a contract with 
Coffman to build him a house for a specified sum. 

I find that Hill furnished Coffman lumber for the erection 
of the house, on which lumber so furnished, there is yet due, 
from Coffman to Hill, the sum of 8417.32. 

I find that Hill filed a notice of intention to hold a lien on 
the house, so built for Armstrong, which notice, and the time 
of filing appear in the papers. 

I further find, that at the time of filing said notice of lien 
Armstrong had fully paid Coffman, the contractor, for the 



IN GENERAL TERM, 1873. 361 

Hill V. Armstrong. 

erection of said hoase — paid the coatract price of the hoase, 
and all extras. 

On this state of facts I find the law to be that Hill has no 
legal right to hold a lien on said house for said sum due him 
for lumber furnished to contractor Coffman. The judgment 
will, therefore, be for the defendant, and against the plaintiff 
for costs. S. E. Pbrkins." 

Assuming, as we must in the absence of a bill of excep- 
tions setting forth the evidence, that the Judge trying the 
cause stated in his special finding all the fact« that were 
proved, we entertain no doubt that his conclusions of law, 
upon the facts, were correct 

It was essential to a recovery, that the plaintiff should 
prove, in addition to the facts found : 

Ist. That he filed his notice of intention to hold a lien, 
in the Recorder's office, within sixty days " after the comple- 
tion of the building, or repairs." 3 i/u/., Stat.^ 336, Sec. 650. 
The special finding fails to show that the notice was filed 
within the statutory time. 

2d. That the lumber was furnished Coffman within one 
year previous to the commencement of the suit, or if a credit 
was given, within one year from the expiration of the credit 
3 InJ.j Slat., 337, See. 651. The special finding does not 
show that there was any evidence given on these points. 

Indeed, it is questionable, whether proof that a credit was 
given would have been admissible in this case, inasmuch as 
the notice was of an existing indebtedness, and was silent 
as to credit having been given to Coffman on his purchase of 
the lumber in question. See Wade v. Reitz, 18 IncLy 307. 

No motion was made at Special Term touching the special 
finding; but a motion for a new trial was filed, which was 
overruled, and the plaintiff excepted. The evidence, how- 
ever, is not brought before us by a bill of exceptions ; con- 
sequently no question is presented, as to the correctness of 



362 SUPERIOR COURT REPORTa 

Maulsby v, Charch. 

the special finding on the facts. Peden^s^ Admimsiratarf t. 
King, 30 Bui., 183. 

The judgment at Special Term is affirmed, at the costs of 
the appellant 



IN GENERAL TERM, 1873. 



Silas B. Maulsby, Appellant, v. Gkorob Church. 
Costs. 

Where a suit U commenced in the Superior Court, and the plaintiff ibows 
that be is entitled to recover more than filly dollars, but the defendant 
also shows, that he is entitled to a set-off to an equal amount, and judg- 
ment is rendered for the defendant, the co«ts should be taxed against 
the plaintiff. 

Blair, J. — This is a suit by the plaintiff to recover damages 
caused by the unt^kiliful sawing of timber, which the defend- 
ant had undertaken to manufacture into lumber for the 
plaintiff. 

The defendant answered in general denial and a set-off» 
claiming compensation for sawing the same timber men- 
tioned in the complaint. 

There was a trial by the Court, and judgment for the 
defendant, and against the plaintiff for costs. 



IN GENERAL TERM, 1873. 363 

Maalsby v. ChArch. 

A motion was then made by the plaintiff to tax the costs 
to the defendant, which motion was overraied, and excepted 
to by the plaintiff. 

This question of costs is the only one pre^nted for oar 
^consideration. There was no special finding of facts and 
conclusions of law under Section 341, 2 G. & H., p. 207 ; 
l>ut the finding of the Court is stated as follows : ^ That 
the plaintiff is entitled to recover on his complaint 984, and 
defendant on his set-off 884, and therefore, finds for the 
defendant." 

The statute establishes the general rule that the party 
recovering judgment shall recover costs. This rule always 
prevails unless it is otherwise provided by law.' 2 G. ^ H.j 
p. 225, Sec. 396. 

The next section of the statute, 2 G. ^ H., p. 227, points 
out a different rule, in cases where the action is commenced 
in the Circuit Court, or Court of Common Pleas where the 
plaintiff recovers less than fifty dollars; except that in cases 
*where '' the judgment has been reduced below fifty dollars 
by a set-off, or counter claim, pleaded, and proved by the 
defendant, in which case the party recovering judgment shall 
recover costs." 

It is claimed that as the finding shows that the plaintiff^ 
but for the set-ofi^ was entitled to recover more than fifty 
dollars, he was entitled to a judgment for costs. 

We do not so understand the statute. It was made to 
prevent, or discourage parties from bringing petty suits in the 
higher courts, and the section is intended to cover a class of 
cases, where the plaintiff may have a valid, and just claim 
for fifty dollars, or over, for which he may sue, and if it should 
turn out on account of a set-off, or counter claim, ^' pleaded 
and proved by the defendant^' that he is only entitled to a 
judgment for a sum less than fifty dollars, he will still be 
entitled to recover his costs. There must be a judgment in 



364 SUPERIOR COURT REPORTS. 

Morris v. Mftjor. 

any event for the plaintiff in sach case. If the claim of the 
plaintiff is more than balanced by a set-off, or counter claim, 
or if it is just equaled by a set-off, or counter claim, it shows 
that in justice, and equity the suit ought never to have been 
instituted, that the plaintiff is not entitled to recover any- 
thing of the defendant, and hence ought not to come into 
Court. 

We think the action of the Court in taxing the cost to the 
plaintiff was right, and the judgment is affirmed. 



IN GENERAL TERM. 1873 



Henry W. Morris v. Stephen F. Major et al., Appellant. 
Appeal. 

An appeal may be taken to General Term, as it may now be taken fk'om the 
Circuit, to the Supreme Court, and where it is shown by affidavit to be 
necessary for the protection of the rights of the parties*, unless a bond 
is filed, proceedings below will not be stayed ; but an appeal cannot be 
dismissed because a bond is not filed. 

Dye Sf Harris, for appellant. 
Spahr Sf Daily, for appellee. 

Blair, J. — The complaint in this case is upon a promis* 
8ory note made by the defendant Major to the other defend- 




IN GENERAL TERM, 1873. 365 

Morris v, Mijor. 

ants, as partners doing business in the firm name of Van- 
camp k Jackson, payable at the office of Pettit, Braden & 
Co., Bankers, Indianapolis. The defendants, except Major^ 
suffered a default. Major answered in abatement, that at 
the commencement of the suit and service of process he 
was, and is a resident of Shelby county in the State of 
Indiana, and that the other defendants reside in Marion 
county ; that said Vancamp, and Jackson are the owners in 
equity of the note sued on, and that the assignment to the 
plaintiff was foi' the purpose of having suit brought against 
Major in the courts of Marion county, and having the note 
collected by process of law for the benefit of said Vancamp and 
Jackson ; that the note was assigned for the purpose of 
using the names of Vancamp and Jackson as 4K>-defendant8 
with Major, to confer jurisdiction on a Court of Marion 
county, that a judgment might be rendered therein, and 
execution caused to be issued against said Major to make 
the debt of the property of Major for the use of Vancamp 
& Jackson ; wherefore the defendant Major says that said 
Vancamp & Jackson are not liable to judgment on the 
note, or their assignment, and that the assignment of the note, 
and the action thereon, are in fraud of the jurisdiction of 
this Court, and of the right of the defendant to be impleaded 
in the County of Shelby. 

A demurrer was sustained to this answer, and the defend- 
ant declining to answer further, judgment was rendered 
against him, judgment having previously been rendered 
against the other defendants. 

The defendant, Major, appealed to General Term. The 
plaintiff filed an affidavit under Section 26 of the act organ- 
izing this court, acts 1871, page 53, requiring the appellant to 
file a bond ; and an order was made that a bond be filed. A 
motion has now been made to dismiss the appeal, because 
no bond has been filed. The only effect of filing the affi- 



366 SUPERIOR COURT RBPORTS. 



i> V. Mijor. 



davit and making the order to file a bond, is this : that after 
an affidavit for a bond is filed, an appeal will not work a 
stay of proceedings on the jadgment at Special Term until 
a bond is filed. 

The appeal may be taken to the General Term, in such 
cases, as it may now be taken from a Circuit Court, to the 
Supreme Court, but where it is shown by affidavit to be 
necessary for the protection of the rights of the parties, unless 
a bond is filed, proceedings below will not be stayed ; but 
an appeal cannot be dismissed because a bond is not filed. 

The ruling upon the demurrer to the answer is the only 
question presented in the assignment of errors. 

The complaint alleges facts showing ownership in the 
plaintiff. The answer to be good must set up other fiaicts 
inconsistent with such ownership. The complaint alleges 
an assignment of the note to the plaintiff in writing, for 
value. The answer starts out by an assertion that Van- 
camp & Jackson are the equitable owners of the note in 
suit This is an admission that the plaintiff* may be the 
legal owner. There is no fact alleged, which in terms denies 
that the note was assigned for value. The mere statement 
that the plaintiff was to collect the note for the benefit of 
Vancamp & Jackson, is an inference to be drawn from a 
given state of facts, or from the terms of an agreement 
made between the plaintiff and Vancarap & Jackson. 

No facts are alleged from which such an inference would 
arise, nor is any agreement alleged to have been made to that 
effect. 

In the case of Later ence v. Long^ 18 /mf., 301, the answer 
alleged that the assignment was without consideration, in 
addition to other facts showing that the plaintiff was not 
the real party in interest. The answer in the case at bar 
does not, therefore, come withia the rule in that case. 

The allegation that Vancamp & Jackson are not liable 



IN GENERAL TERM, 1873. 367 

-Stamph r. Bigham. 

to judgment, and execation on their assignment, is but an 
nverment of a conclusion of law, and such conclusion does 
not arise from the facts alleged in the answer. NorveU et al. 
v. HUtky 23 Ind.y 346. 

The answer was, therefore, bad, and the judgment must 
be affirmed. 



IN GENERAL TERM, 1873 



John B. Stumph v. Hatdbn 8. Bioham, Appellant 

MoRTOAooR — equiiif in — party to foreclosure — 
Statutes — construction — 
Practice — neta trial 

A mortgagor conveying hU equity of redemption is not a necessary party 
to the foreclosure, unless it is sought to subject other property belong- 
ing to him to the satisfaction of the debt, which the simple foreclosure 
will not accomplish. 

The language of Sections 683-5-7-88, 2Q.& H., 294-5-6, comprehends as 
synonymous, the terms — "judgment-debtor, and judgment-defend- 
ant " — and imply the same person within the meaning of the redemp- 
tion law ; and a subsequent purchaser under the mortgagor, in posses- 
sion of the premises for one year after their sale, is a judgment debtor, 
and is liable for the rents, and profits in case of non-redemption. 

It is not error to refuse a new trial upon an affidavit, which contains mat- 
ter that would not constitute a good defense upon the trial. 

7. & Harvey^ for appellant. 
C. L. Holsteihy for appellee. 



368 SUPERIOR COURT REPORTS 

Stumph V. Bigham. 

NfiwcoMB, J. — This is an appeal from a decision at Special 
Term, overruling a motion by the defendant to set aside a 
judgment rendered against him on default, and to permit 
him to answer the complaint. 

A bill of exceptions informs us that the motion was over- 
ruled on the ground, that the affidavit filed in support of it, 
did not disclose a defense to the action. 

The complaint, and affidavit combined, present this state 
of facts: 

One Martha Dawson made her promissory note, and 
secured it by a mortgage on certain real estate, described 
in the complaint; which note, and mortgage became, by 
assignment, the property of the plaintiff, Stumph. 

The mortgagor subsequently sold and conveyed the mort- 
gaged premises to one Barnitz ; the latter conveyed the same 
to Samuel W. Burnham, and Burnham conveyed to the 
defendant, who afterward took possession thereof. After 
these several conveyances Stumph foreclosed the mortgage, 
making Martha Dawson, and the defendant Bigham, parties 
defendant. 

The mortgaged property was duly sold under the foreclo- 
sure judgment, and was purchased by the plaintiff, he receiv- 
ing a certificate of sale. The property was not redeemed, 
and at the expiration of one year from the date of the sale, 
a deed was executed by the Sherifl' to the purchaser, who 
then instituted this suit to recover from Bigham the rental 
value of the premises, which he had occupied from the time 
of the Sheriff's sale to the date of the deed. 

The affidavit states that Bigham, between the time of hia 
purchase from Burnham, and the execution of the deed by the 
Sheriff, made lasting improvements on the mortgaged prop-^ 
erty, of the value of »^250. 

The points made against the ruling at Special Term are: 

1. That Martha Dawson, and not the defendant, is liable 



IN GENERAL TERM, 1873. 369 

Stamph V. Bigb«in. 

to the Sheriff's grantee for rents, on failure to redeem. 

2. That if liable for rents, the defendant is entitled to a 
set-off to the amount of his improvements. 

The Statute of June 4, 1861, 2 O. & H. 271, gives a right 
to the owner of land sold on execution, or to any mortgagee 
thereof, or a judgment-creditor having a lien on the land so 
sold, to redeem the same at any time within one year from 
the date of such sale, by paying to the purchaser, or to the 
Clerk of the Court, from which such execution, or order, was 
issued, the purchase money, with interest thereon at the rata 
of ten per cent, per annum. 

The judgment-debtor, is, by the terms of the statute, enti- 
tied to the possession of the real estate so sold, for one year 
after the sale ; but in case he fails to redeem by the end of 
the year, he is made liable to the purchaser for the reason- 
able rents, and profits of the premises. 

Martha Dawson had sold and conveyed her equity of 
redemption, prior to the foreclosure of the mortgage, and as 
to the foreclosure, she was not a necessary party. The only 
purpose in making her a defendant was to obtain a personal 
judgment on the note, so that if any balance of the debt 
against her remained unsatisfied after the sale of the mort* 
gaged premises, an execution might issue therefor against 
her property. Stevens v. Campbell^ 21 IruL^ 471 ; Story^s 
Equity Pleadingj Sec, 1 97 ; Buckham v. Beaver^ 17 Ind.^ 367 ; 
Shaw V. Homaday^ 8 Benf.^ 165. 

Bigham, being the owner in fee of the n)ortgaged premises, 
was a necessary party defendant, and the only defendant 
really necessary to the foreclosure. His rights in the prop- 
erty were duly foreclosed; he submitted to a sale, failed to 
redeem, and used and occupied the premises for a year after 
the Sheriff's sale, and we see no ground on which he can, 
or ought to be absolved from making to the purchaser the 
compensation provided by the statute in such cases. The 



370 SUPERIOR COURT RBPORT& 



Stumpb V. Bigbmm. 



foreclosure was, as to his interest in the property, a jadgmeot, 
so designated in the statute, and he was, within the mean* 
ing of the redemption law, a judgment-debtor, although no 
personal judgment was rendered against him for the debt — 
2 6. & H. 204-5-6 ; sections 633-5-7-a MaHha Dawson 
cannot be liable, for she had parted with all her interest in 
the land before the foreclosure, and neither used, nor oocupied 
it thereafter. 

There is nothing in the claim of Bigham to be compen- 
sated for his improvements. The affidavit doea not show 
but that they were made after the foredosore; bat if 
made before, we are not aware of any rule of equity that 
would give him compensation for them when he had notice 
of the prior mortgage at the time he made them, ms the judg- 
ment of foreclosure against him necessarily shows that he 
had. 

The judgment at Special Term is affirmed, with costs. 



Note. — Council for appellee submitted by brief: 

" It is true this court has held that under See. 659, 2 Q. & H. 278, the 
summons and the return of the Sheriff thereon, showing service, must 
Appear in the record of a judgment on default. T%$ N. A. ^ & R. JL Ob^ 
▼. Wel4:h, 9 Ind^ 479. 

It has also been repeatedly held, that an objection to the record for wtat 
of such showing must be first made in the court below, and that it cannot 
be raised in the first instance in this court. The C. ^ C, R, R. Cb , t. Gui- 
vert, 18 Ind., 489 ; Harlan v. Edwardt, 13 Ind^ 480; FnuUr t. Hubbeil^ 18 
Ind^ 432 ; Blair v . DaviSy 9 Ind^ 236. 

To the latter proposition, or rather its application, this court in CbeV 
nower v. Coehnoioer^ 27 /mf , 253, made an exception. In that case, which 
was an appeal from a judgment of divorce on default, the court held thai 
the question of the defect of the record in not showing the summons, and 
return could be first made on appeal, because the appellant had no other 
remedy, the court below having no power to disturb a judgment of divorce 
after the term at which it was rendered. The general rule, howerer, as 
laid down in the several cases svpra is recocrnized and approved. 

No reason can be suggested for not applying the rule to the case at bar. 



IN GENERAL TERM, 1873. 371 

Stumph v. Bigham. 

Not only had the court below full power to hear and determine the objec- 
tion now first made, but the appellant had his day there without making it. 

Before the code it was held in several cases, that the summons and return 
were necessary parts of a record of a judgment by default. Reviewing 
these cases, Judge Sullivan, in Dixon v. Bayw^ 7 Ind,^ 647-8, said : 

"The decisions of this court heretofore made are to the effect, that in a 
judgment by default, it must appear by the record, that^the defendant had 
notice of the suit, otherwise the judgment against him will be erroneous. 
4 Blaekf., 169 ; 5 u2. 882. But we do not think it material whether the fact 
appear f^om the return of the writ, or notice set out in haec verba in the 
record, or whether it appear from the substance of it set out in the judg- 
ment of the court. In either case, the fact is shown by the record, and 
that 18 all that is required. If the court were satisfied of the fact, and so 
express themselves, the presumption is^ in the absence of evidence to the 
contrary, that the proof of the fiacl was legal and sufficient." 

The record of a judgment upon default, rendered by a court of general 
jurisdiction, could not be attacked collaterally upon the ground that the 
summons and return were not set out The court is held to be competent 
to decide upon its own jurisdiction without setting out in its records the 
fkcts and evidence upon which such decision is based. Its record, or judg- 
ment is an absolute verity, not to be impeached. It is so held even where 
the record is altogether silent as to the summons^ and its service. Collater- 
ally, the jurisdiction of the person of the judgment defendant would be 
presumed conclusively. 

Freeman an JtidgmentSf Sees. 122, 124, 182. It follows then, of course, 
that such a judgment is not void. 

By the act approved March 4th, 1867, (Acts 1867, p. lOO) amendatory of 
section 99 of the code, 2 G. & U. 118, it becomes the imperative duty of the 
court below to relievo a party from a judgment taken against him through 
mistake, inadvertance, surprise, or excusable neglect. It would seem to 
follow that as the court below not only has full power to so relieve a party, 
but is, by law, commanded so to do, the invocation of that power is a con- 
dition precedent to a status in this court. Barnes v. Wright^ 89 Ind,, 298 
Barnes v. Conner 89 Ind., 294. 

The weight of authority denominates the possession of the mor agor a 
tenancy. The mortgagor is tenant to the mortgagee; 1 Hilliard on Mori' 
gages^ 184 et seq. 

The appellant claiming under the mortgagor, of course, stands in the 
same relation. The redemption act does not change that relation. It could 
not. It simply prolongs the tenancy for one year. 

A tenant cannot tet off the value of Improvements made by him volun- 
tarily in an action to recover for use and occupation. Orosaman v. Lauber^ 
29 itKf., 618 . 



372 SUPERIOR COURT REPORTa 

Denar o. Rich et oL 

The owner ii never chargeable with the repain and improTementt made 
by the tenant on his own motion. 

Improvements made by the mortgagor or hit iisigna with notice of the 
mortgage, attach to the realty, and become a part of the lecurity. li^iiit- 
low V. Mtrehania, eU^ 4 Met 810; HTiwJow v. iCin^ 8 Wemd^ 584; Sktp' 
hard ▼. Philbriek, 2 Denio, 174; J<me» ▼. T^onuu, 8 Blod^. 428; Ortmr, 
PendUUm, 1 Leigh, 297, 806. 



IN GENERAL TERM, 1873. 



Joseph B. Dessar v. William C. Rich, bt. ▲!«., Appellants. 

Practice — 
Exceptions — 
Suretyship. 
Indorsee. 

Where there is a p1e;\ of former adjudication, and it is shown that the itniM 
Joined were such that the question presented by the issues in the cause 
bi'iHG; tried, need not have been passed upon in arriving at the judg- 
ment rendered in the former cause, it is competent to show by a bill of 
ezccptious, containing the evidence, und Hgrecment uf thupartiea flied 
in the former cause, that the issues now presented were not before tried. 

Where a judgment is rendered against the makers, and an indorser of a 
note, without any finding that the indorser was surety for the maken, 
the indorser stands as a joint judgment-debtor only, and a payment of 
the judgment by such indorser, extinguishes the judgment, in so fiir, 
at least, that he cannot afterwards have an execution issued for his 
benefit against the other parties to the judgment. 



IN GENERAL TERM, 1873. 373 

Dessar o. Rich et tU, 

In Buch case, the judgment plaintiff, after payment by the indoner, has no 
interest in the judgment that can be sold, or assigned to any one else^ 
or collected without assignment, for the benefit of any other person. 
Nor had such indorser any interest in the judgment that he could sell, 
or assign. 



Morrow 4* Truster^ for appellants. 
Dye Sf Harris, for appellee. 

Blair, J. — The complaint iii this case alleges, that on the 
10th day of November, 1871, the Merchants' National Bank 
of Indianapolis, recovered a judgment in the Superior Court 
against Daniel C. Rich, Abijah Rich, Harvey Rich, Reuben 
D. Rich, and the plaintiflT, Joseph B. Dessar, on a note 
made by the Rich's, payable to the plaintiff in this cause, 
and by him indorsed ; that afterwards the plaintiflT paid, or 
deposited with the Merchants' National Bank, the amount 
of principal, and interest of the judgment, with the agree- 
ment between the plaintiff, and the bank, that the plaintiff 
should be the equitabfe owner of the judgment, and that the 
bank should collect the same of the makers of the note for 
the benefit of Dessar, the plaintiflf; that afterwards, on the 
28th of June, 1872, the bank, without the consent, or knowl- 
edge of Dessar, the plaintiflT, assigned the judgment to one 
William C. Rich, who has caused execution to issue on the 
same, and the SheriflT is about to levy on the property of the 
plaintiflT; wherefore, the plaintiflT asks that the defendant 
William G. Rich, and the SheriflT may be enjoined from levy- 
ing the execution, and that the judgment may be declared 
satisfied, and the execution quashed. 

A second paragraph of the complaint is substantially the 
same, except that it avers that Dessar, the plaintiff herein, 
paid the judgment, and was discharged before the assign- 
ment of the judgment to William C. Rich. 

The first error assigned is the overruling of separate 
demurrers to each paragraph of the complaint 



374 SUPERIOR COURT REPORTS. 

DeMAT V. Rich ct oL 

The first paragraph of the complaiot has a degree of 
uncertainty in it, becaase it alleges that the amoant of the 
judgment was " paid, or deposited with the bank," bat in 
either event, the allegations are sufficient to show that the 
bank could no longer collect the judgment of the plaintiS, 
and the assignee could not acquire any greater rights by the 
assignment; hence, we believe the complaint good. 

There was a plea of former adjudication filed by the 
defendants, to which the plaintiff replied, that the record of 
the former suit showed an agreement made in open court| 
that the question of equitable ownership of the judgment 
by the plaintiff^ on account of the payment to the bank was 
not raised, and hence was not passed upon. 

After the defendants had introduced in evidenoe all of 
the record in the former suit, except a bill of exceptions filed 
in said cause, the plaintiff then offered in evidence, a bill of 
exceptions filed in said cause, containing the evidence, and 
also showing an agreement in open court, substantially as 
set up in the reply of the plaintiff. To the introduction of 
this evidence the defendants objected, and it was admitted 
over the objection. 

This is assigned as error. We think the evidence was 
rightly received. The issues joined in the former cause 
were such that the precise question presented by the issues 
in this proceeding, need not have been passed upon in arriv* 
ing at the judgment before rendered. In such case it is 
competent to show by the evidence, that the issues now pre- 
sented were not tried in the former cause. Day et aL v. 
VaUeUe, 25 Ind., 42 ; The Washington, Alexandria Sf George- 
toum Steam Packet Company v. Sickles et oL, 24 How., 333. 

The bill of exceptions was, therefore, admissible for this 
purpose. All the other errors assigned are comprehended 
within the one, that the finding is not supported by the 
evidence. 




IN GENERAL TERM, 187a 375 

Demir v. Rich ct aL 

The evidence sustains the main facts alleged in the conot- 
plaint The judgment that was recovered by the Bank 
against Rich's, and the plaintiff Dessar, was in the ordinary 
form, without any finding that Dessar was a surety for the 
Rich's. Without such finding, he stood but as a joint judg- 
ment debtor, and a payment of the judgment by him extin- 
guished the judgment; in so far, at least, that no execution 
could afterwards be issued against the other parties to the 
judgment for his benefit. I^oval et oLj v. Rowley^ 17 Ind^ 
36. The fact that if the judgment was collected from the 
makers of the note, the plaintiff was to have the benefit of 
the amount so collected, made the payment by Dessar none 
the less a payment of the judgment Without an adjudica- 
tion of the question of suretyship by the court, the plainti£^ 
and one of the judgment defendants, had no right to assume 
that an execution could be issued, and levied of a portion of 
the judgment defendants for the benefit of a co-defendant 

The Bank was entitled to but one satisfaction of the judg- 
ment, and having had that from a party that was liable, 
she had no interest in it to be sold, or assigned to any one 
else, or collected without assignment for the benefit of any 
other person. See the case of Loval et aL v. Rowley^ before 
cited, and the statute therein commented upon, and con- 
strued. Nor had Dessar any interest in the judgment that 
he could sell, or assign. He had a right to have had the 
question of suretyship tried, and after that, if he paid the 
judgment, it would still be kept alive for his benefit, but 
without this, he had only his right of action against his 
co-defendant in judgment 

We see no error, therefore, in the cause, and are of^ the 
opinion that the finding, and judgment of the Court is fully 
sustained by the evidence. 

Judgment affirmed. 

8 



»76 SUPERIOR COURT REPORTS. 



Kogers v. Voss et o/. 



IN GENERAL TERM, 1873. 



Dudley Rogers, Appellant, v. Gustavus H. Voss, et al. 

Principal, and Surety — execution against. 
Execution — how and when may be levied. 

A joint execution directed against a principal and surety, it to be levied 
upon the property of both, but it must be satisfied in the order of their 
relation to the suit. If, after exhausting the property of the prin- 
cipal, the execution is unsatisfied, the Sherifl^ may then, in the life 
time of the execution, subject the property of the suret}* to the judg- 
ment. 

Property that has passed into the custody of the court in bankruptcy, can- 
not be levied on by the Sheriff, unless his execution shows a prior lien 
on the property. 

Hanna Sf Knefler^ for appellant. 

Perkins, J. — Judgment was obtained by Mr. Voss, in the 
Marion Superior Court, against one Kelly, as principal, and 
Dudley Rogers, as surety. Execution was issued to Put- 
nam county, where Kelly, the principal, resides, and where, 
if anywhere, he had property. Kelly filed a schedule, as 
allowed by statute, showing no property subject to execa* 
tion. It would seem that the Sheriff had made sale of such 
property of defendant as he could find, before the filing of 
the schedule. The Sheriff then levied the execution on the 
property of Rogers, the surety, in Putnam county, and adver- 
tised it for sale. Rogers applied to the Superior Court for 
an injunction restraining the sale of his property. Injunc- 



\ 



IN GENERAL TERM, 1873. 377 

Rogers v. Voes et aL 

tion denied. It appears that Kelly has been adjudged a 
bankrupt, and that no distribution had been made of the 
moneys realized from the assets of his estate, if any had 
been ; and it is contended by Rogers that the estate of KeUy, 
the principal in the judgment, has not been so exhausted as to 
overthrow a levy on the property of the surety, (the plaintiff 
Rogers), and will not be till such distribution of the assets 
in bankruptcy takes place. Dates are not given as particu- 
larly as they should have been, to enable the Court to get a 
clear view of the whole case, but on the point relied on in 
argument, it not being shown that the judgment or execu- 
tion had priority by lien, we have not a doubt. The section 
of the Statute under which the application for injunction is 
made, reads thus : 2 G. & H. p. 309, Sec. 675. 

*' If the finding upon such issue be in favor of the surety, 
the Court shall make an order directing the Sheriff to levy 
the execution, first upon, and exhaust the property of the 
principal, before a levy shall be made upon the property of 
the surety ; and the Clerk shall indorse a memorandum of 
the order on the execution." 

It appears from this section that a joint execution issues 
against the principal, and surety — that said execution is to 
be levied by the Sheriff upon the property of both the prin- 
cipal, and surety ; but in this order, viz : he 18 first to levy on 
the property of the principal subject to execution, in his bail- 
iwick, and sell it When he has done this he has exhausted 
the property of the principal. He may then, in the life time 
of the execution, levy it on the property subject to execution 
of the surety, and sell it to satisfy the execution. The 
exhaustion of the property of the principal is to be by the 
Sheriff, on the execution, and of course, relates only to prop- 
erty subject to the execution in the hands of the Sheriff. 
After the defendant's property passed into the custody of the 
Court in Bankruptcy, the Sheriff could not levy on it, unless 



378 SUPERIOR COURT RBPORT& 

Boney v. Wood 4i ml 

bis execution was a prior lien on the property, a fact which 
is not shown in this case. 
The judgment is affirmed. 



IN GENERAL TERM, 1873. 



Elias M. Ronby v. Levi Wood, bt al. 

housbholdbr. 

A mmrried mAn is not absolved from the legAl, or morsl obligation of pro- 
viding for his family, by his declared intention of not again liTing 
with theni. Though he may be living separate, and apart fh>m them, ha 
is still amenable to the law for their support, and is, therefore, a reaideiit 
householder, within the meaning of the act of exemption, and aa meh 
is entitled to claim the privilege of exemption of his property flram 
sale on execution. 

Morrow Sf TtuiUt^ for plaintiff. 
Smiih Sf Hawkinsj for defendants. 

Blair, J. — The only question presented by the record in 
this cause, is whether the plaintiff* is a resident householder, 
within the meaning of the act to exempt prqperty from sale 
on execution. 2 O. & H. p. 365. 

By an agreed state of facts, it is admitted that the 



IN GENERAL TERM, 1878. 379 

Boney v. Wood ei mL 

tiff is a married man ; that his wife, and children reside 
together in the city of Indianapolis as a fetmily, and haye in 
their possession certain household goods; that the plain- 
tiff does not reside with his family, that he liyes in said 
city, bat separate, and apart from his family, and so lived 
prior to the levy of the execution mentioned in the com- 
plaint; and that he has not, daring sach time, sapplied 
bis family with the necessaries of life, and has declared his 
intention of never again residing with his family ; that he 
has in his possession two mules which are sought to be 
exempted from sale on said execution, and which, together 
with the household property in possession of the family, are 
included in the schedule mentioned in the complaint ; and 
that the said plaintiff has paid the rent on the house formerly 
occupied by his family up to the first day of March, 1873, 
(that being the month within which this proceeding was 
instituted). 

The statute exempting property from sale on execution in 
certain cases, was passed in obedience to the requirements 
of a provision in the Constitution^ and according to all the 
authorities, should be liberally construed. It is rather a pro- 
vision for the benefit of the family ; for those who are depen- 
dent upon the head of the family for support, than for the 
benefit of the debtor himself. 

In the absence of the husband from the State, or from his 
home, the wife may claim, and assert the privilege of exemp- 
tion. {See staiule supra). 

That the plaintiff in this case has not supplied his family 
with necessaries, and has declared bis intention of not 
again living with them, does not absolve him from either the 
legal, or moral obligation resting upon him to support them ; 
nor does it cut them ofi from the benefit that may be derived 
from the exemption. That he paid the rent of the house 
occupied by his family up to a very recent period, is con- 
tributing to their support 



380 SUPERIOR COURT REPORTS. 

Railroads v. The Board of Coinmicsioneri of Marion County. 

It is further provided by statute, that a wife, in case of 
abandonment by the husband, and a failure on his part to 
provide for the support of the wife, and family, may, by 
proper proceeding, have property sold and applied to ber 
support, and that of her children. Acts of 1857, page M, 
1 G. 4- jK, page 377. 

We are, therefore, of opinion, that in contemplation of 
law, the plaintiflT is still the head of the family, and that he 
is entitled to claim the privilege of exemption accorded by 
the statute to a resident householder. 

The judgment at Special Term is affirmed. 



IN GENERAL TERM, 1873. 



The Terrr Haute &c.. Railroad Company v. Thb Board 
OF Commissioners of Marion County, Appellant. 

Railroads — assessment of, for taxes — 
Taxes — assessment, when valid. 

In a suit to enjoin the collection of taxes under Act of 1865, entit1ed| "Ad 
Act to secure a just valuation, and taxation of all railroad propertj 
within the State," &c. 

Held: That under this act there are but two instances in which aepanU* 
pieces of railroad property can be listed, and taxed upon their Talueas 
pieces of property ; one is where the property held by the railroad 




IN GENERAL TERM, 1873. 381 

Railroads v. The Board of OommisBioners of Marion Ooonty. 

oompany is needed and uged for railroad purposes: the other is where 
the assessment is made by a town or city, of railroad buildings, fixtures, 
and machinery connected there¥rith, within its limits. 

In all other cases the individual pieces of property cannot be aaseesed, but 
thdr value is considered within the other facts enumerated in Section 
2 of the act, in estimating the value of the road upon which the nssesS" 
ment is to be made, and are to be deemed " to be embodied in the taxes 
by the mile of the road." 

Taxes, to be valid, most be assessed pursuant to the law authorising them ; 
the court cannot l^^iae an illegal assessment, nor make a new one. 

Barbour Sf Jacobin for appellant 
Hendricks^ Hord Jjc Hendricks^ for appellee. 

Pbrkins, J. — Suit by the Railroad Companies named 
below^ against the Commissioners, and Treasurer of Marion 
county, instituted pursuant to the following agreement, to 
enjoin the collection of the taxes therein mentioned. 

Whereas, There appears among other advertisements for 
delinquent taxes, the following : 

Union Railway Company, No. 14,140, depot, tracks, eta, 
north part square 96, value 960,000 ; value of improvements, 
$65,000; value of lot and improvements, 9125,000; total value 
of taxables, 9125,000 ; amount of delinquent tax, penalty, 
and interest, 91,537; amount of tax for the current year, 
91f775 ; cost of advertising, 60 cents ; total amount of taxes 
due, 93,312.60. And, whereas, it is proposed, by the proper 
county officers of Marion county, Indiana, on this day to 
sell said described property to pay said total sum; and, 
whereas, the owners of said property, to wit : The Jefferson- 
ville, Madison & Indianapolis Railroad Company ; The Terre 
Haute & Indianapolis Railroad Company; The Indianapolis, 
Cincinnati & Lafayette Railroad Company; The Cleveland, 
Columbus, Cincinnati & Indianapolis Railway Company, 
and the Columbus, Chicago & Indiana Central Railway 
Company, denying that said property, or any of it is liable 



382 SUPERIOR COURT REPORTS. 

Bailnwdi «. The Bo»rd of CommlMioam of lUrioa Oooa^. 

to said taX| or any part thereof, and propoee to the Boaid of 
Commissioners of Marion county, that said sale shall not be 
made, and that the question of validity of said tax shall be 
determined by such legal proceeding as shall be determioed 
upon, hereafter by council of proper parties, and said Com- 
missioners have agreed to said proposition. 

In consideration of all of which it is agreed, by said county 
on the one part, and by said railroad companies by DiUaid 
Ricketts, and Ekiward King, on the other part, that said suit 
shall be instituted in one of the Courts of Marion oountv* to 
determine whether said taxes, or any part of them is valid, 
and either party may appeal therefrom to the Supreme Coort, 
and whatever amount of said tax is adjudged a valid tax 
upon said property, or any part thereof, said companies 
agree to pay. 

It is further agreed that the Court, in determining the qnas* 
tion of the validity of the tax, or the liability of any oooh 
pany to pay, shall not be restricted m«rely to the liability of 
the Union Railway Company, or liny, or all of the companies 
above named ; but it is agreed that, if any railroad company 
shall be liable for said tax, or any part thereof that the said 
railroad company adjudged liable therefor, shall pay the 
same. 

Whenever suit is commenced, the proper defendants ahaD 
enter an appearance, and submit to a rule to plead wittiia 
ten days. 

It is further agreed that the companies named, or aoma of 
them, shall within three months, execute, or proeore to be 
executed, such bond to the satisfaction of said Board of 
Commissioners^ or Barbour, Jacobs & Smith, or citksr of 
them, as will secure a compliance with this oontnMsL 

(Signed,) Edwabu Kuta, 

D. 

Dated, this 6th day of February, 187t. 



IN GENERAL TERM, 1873. 383 

Bailroftds «. The Board of Commiasionen of Marion County, 

The Coart, ia Special Term, perpetaally enjoined the col- 
lectioii of the taxej« specified above. The following facts are 
all that are material in the decision of the cause. The prop- 
erty on which the taxes, sought to be enjoined, were assessed, 
is railroad property, used for railroad purposes, and the taxes 
were assessed upon the lands and improvements in the same 
manner as the property of natural persons is assessed. The 
assessment was made, it is presumed, by the County Treas- 
urer, the property not having been reported by the railroad 
companies, or either of them, to the County Assessor, nor 
considered by him, in valuing the railroads. 

Was the assessment legally made? is the question. It 
will not be necessary for us, in the view we take of ^he case, 
to inquire whether the taxes were assessed by an officer hav- 
ing power to make an assessment in any contingency, or 
opon the proper railroad company, as we have come to the 
inclusion that the tax was not assessed in a legal manner, 
not upon a legal basis, by any officer, upon any company. 
The assessment of the taxes in question was controlled by 
the act of 1865, (3 Statute by Davis, p. 418), and to be legal, 
most be conformable to that act. 

The act is entitled, ** An Act to secure a just valuation 
and taxation of all railroad property within this State," &c. 

The following sections of the act prescribe the basis, and 
manner of taxing railroad property : 

^ Srction 1. That all railroad companies, having the whole, 
or any portion of their lines of railroad within this State, 
shall, on or before the first Monday in April, eighteen hun- 
dred and sixty-nine, and on the first Monday in April there- 
after, in such years in which there shall be a general appraise- 
ment of the real property of the State, furnish to the appraiser 
of each county through which their respective roads may 
run, a written statement of the length of the line of such 
roads within his county, and also a statement of all the 



384 SUPERIOR COURT RBPORTa 

BmImmI* v. The Board of OommiMionen of XarioB Coaa^. 

• 

machine shops, depots, depot groands, rolling machinary, 
and other property of such company, used by it in doing the 
business thereof, within this State, and of the gross earn- 
ings ; and also the average net earnings of said road, over 
and above the current necessary expenses in transacting its 
business, and for repairs during the five years immediately 
preceding such statement, which shall be verified by the oath, 
or affirmation of the proper officer of such company making 
such statement. 

Sec. 2. The appraisers of the counties through which siieh 
roads may run, if through more than one county, shall, within 
thirty days after such Monday in April, meet at such time 
and place on the line of such roads as shall be designated 
by the Auditor of State, or if he fails to designate, and 
notify said appraisers of such time and place of meeting, 
within twenty days after such first Monday in April, then, 
at such time, and place as a majority of such appraisers shall 
designate ; and said appraisers, or a majority of them, shall 
ascertain and appraise the value of said road per mile, by 
first making a valuation of the said railroad, and all its fixed 
property, situate within this State, including all its depots, 
depot grounds, machine shops, and other buildings erected 
thereon, and such proportion of the rollinj; stoc'k, and mov- 
able property used in operating the whole road, if part thereof 
is without this State, as the length of the railway in this 
State bears to the entire length thereof, within and without 
this State; and in estimating the entire value of said rail- 
road, and its equipments, the appraisers shall take into con- 
sideration its location for business, the competition of other 
transportation routes by rail, or by water, its earnings, expenses 
and repairs, the then present condition of its roadivay, and 
equipments, and its value as an investment, without refer- 
ence to its cost, or indebtedness; provided^ that all lands 
owned, or held in trust, by any railroad company, and not 



IN GENERAL TERM, 1873. 385 



Railroads v. The Board of Commissioners of Marion County. 



actually needed, or used in operating the road, shall be 
assessed for taxation, and the taxes collected, in the counties 
where they may be situated, in the same manner as taxes are 
assessed and collected on the lands of natural persons, and 
the County Auditor shall apportion such valuation of such 
railroad for county and township purposes, according to the 
length of such road through such county, or township. 

8ec. 3. The appraisers, after making the valuation as 
aforesaid, shall then apportion, by the mile, the whole value 
of the railroad and its equipments, thus ascertained, and 
estimated, to the counties, respectively, in proportion to the 
length of road in each county through which it runs, and 
such value by the mile, shall be the basis for the assessment 
of all taxes levied by State, county, and township authority, 
through which such road passes, according to the rate of tax* 
ation for other property. 

Sec 4. Authorizes the appraiser to make the statement 
required in the first section, if not furnished by an officer of 
the company. 

Secs. 5 and 6 are not material to the decision of this 
cause. 

Sec. 7. The cities, and incorporated towns, through, or into 
which a railroad may p^ssj may assess any railroad build- 
ing, fixtures, and machinery connected therewith, within the 
city, or town limits, on the same basis, and in the same man- 
ner that the like property of natural persons is assessed ; and 
collect the taxes thereon as other taxes are collected ; but the 
rolling machinery used in operating the road shall be deemed 
to be embodied in the taxes by the mile." 

An analysis of this statute shows that there are but two 
instances in which separate pieces of railroad property can 
be listed, and taxed upon their value as pieces of property. 
One, is where the property held by the railroad company is 
not needed, and used for railroad purposes. The other, is 



886 8UPBBIOB COURT RBPORTa 

Bftilroftds «. The Board of CommiMkNim of Marion Conntj. 

where the assessment is made by a towiii or oity of aoj rail- 
road baildingf fixtures, and machinery ooonected therewith, 
within its limits. 

In all other cases, the individual pieces of property cannot 
be assessed, but their value is considered, with the other 
facts enumerated in section two of the act, in estimating 
the value of the road upon which the assessment is to be 
made, and are to be deemed, in the language of the statute 
^ to be embodied in the taxes by the mile " of the road. 

The taxes in this case, then, no matter by whom ai 
or upon what road, were illegally assessed, and the 
ment is void ; and the Court cannot legalize that assessment, 
nor make a new one, because it has not before it, and caa- 
not probably obtain the data required by section two of the 
act, as the basis on which the assessment is required by the 
statute to be made, even if it would, in that event, have the 
power to make it Taxes, to be valid, must be 
pursuant to the law authorizing them. 

The judgment at Special Term must be aflirmed. 



IN GENERAL TEBM, 187a 987 



Bttih «, X'atrow «(«(. 



IN GENERAL TERM, 1873. 



Conrad Bush, Appellanti t;. Charlbs Pstrow, bt al. 

Appeal Bond — suit on — 
Damages— /or retUs^ Sfc. 

Plaintiff alleges that defendant remained in poeaeBsion of property pend- 
ing an appeal for a judgment for poeaeBsion, and by reason thereof 
plaintiff lost his rents, and profits. 

HM : Thai damages for rents accming after the judgment appealed firom 
was repdered, and before possession was obtained by the plaintiff, can- 
not be recovered in an action on the appeal bond. The conditions of 
the bond, under the code, do not embrace rents and profits to be 
accounted as damages^ for detention of property during an appeal to 
a court of error. 

^ficA Sf Finch J for appellant. 
iningensmUhf for appellee. 

Blair, J. — This is a suit upon an appeal bond. The plain- 
tiff avers that he obtained a judgment at Special Term on 
the 18th of May, 1872, against the defendant. Porter, for the 
sum of 990, and for possession of certain real estate, from 
which judgment the said defendant appealed to General 
Term, and filed the bond in suit with Charles Fetrow, as his 
surety. The bond is conditioned that ^if the said Porter 
shall prosecute his appeal to effect, and without delay, and 
pay such judgment as shall be rendered against him on said 
appeal, then this bond to be void, else in force." 



388 SUPERIOR COURT RBPORTa 



Btuh V. Fetrow el aL 



The plaintiff avers that the jadgment was aflirroed oo 
appeal. The breach of the bond alleged io the fint para* 
graph of the complaint is, that the defendant, Porter, remained 
in possession of the real estate pending the appeal, and ooo* 
tinned in possession antil November, 1872, by reasoo of 
which the plaintiff avers that he lost the value of the rents 
of the property. 

A second paragraph of the complaint is substantiaDy 
the same, the plaintiff averring that the defendant. Porter, 
remained in possession of the real estate, receiving the raits 
and profits thereof, nntil November, 1872. 

A demurrer of the defendant, Fetrow, was sastaincd to 
each paragraph of the complaint, and the plaintifi declining 
to plead further, judgment was rendered for the defendant 

The plaintiff appeals from this judgment* 

The only question presented is this : Can the plaintiff, io 
an action on the appeal bond, recover of the surety damages 
for rents accruing after the judgment appealed from was 
rendered, and before possession was obtained by the plaintiff ? 

In the case of Doe v. Daniels and others, decided by the 
Supreme Court in 1841, (6 Biackf. 8) it was held, in a suit 
upon a bond given on an appeal to the Supreme Court, from 
a judgment rendered in an action of ejectment by a Circuit 
Court, that the plaintiff could not recover mesne profits; in 
other words, that the condition of the bond did not embrace 
damages not included in the judgment of the Circuit Court 
The provisions of the statute then in force, in reference to 
bonds on appeal from Circuit Courts to the Supreme Court, 
were in legal eflect the same as the general provisions now 
embraced in sections 555 and 563, of the code, (2 G. & IL, 
pages 271 and 274). 

In the Revised Statutes of 1843, in addition to the general 
provisions in regard to appeal bonds, which are in the exact 
words of our present statutes, (see sections above cited), 



IN GENERAL TERM, 1873. 389 

Bush V. Fetrow et al. 

there was an additional section, providing that when any 
appeal is taken from a judgment ^' for the recovery of land 
or the possession thereof, the condition of the appeal bond, 
in addition to the matters herein before prescribed, shall 
further provide, that the appellant shall also pay, and satisfy 
all damages which may be sustained by the appellee for the 
mesne profits of the premises recovered, or for any waste 
committed thereon, as well before as during the pending of 
such appeal." R. S.. 184S, page 633. 

Under this statute the case of Malane v. McClain and 
another^ 3 Ind,^ 532, was decided, and it was there held that 
the plaintifi could not recover on the bond for rents, and 
profits, because the condition of the bond in suit was only 
such as were required by the general provisions Covering 
appeal bonds, and did not conform to the conditions required 
by the statute in cases of appeals from judgment for the 
possession of real estate. 

We have no provision in our present code corresponding 
with the statute of 1843, above cited. 

In the act concerning the unlawful detention of lands, and 
the recovery thereof, (2 G. & H. 630) it is provided that an 
appeal may be taken from a judgment of a Justice of the 
Peace, or Circuit Court, on filing bond securing damages, 
and costs, &c. 

On such appeals the cause is tried de novoy and section 11 
of the act provides that, ^^ On the trial of any cause under 
this act, either before the Justice of the Peace, or on appeal, 
the damages for the detention of the premises shall be esti* 
mated up to the time of each trial, while damages on appeal 
by the defendant shall be deemed as covered by the appeal 
bond." 

We do not think the provisions of this section make the 
conditions of an appeal bond in such cases, cover damages 
beyond the trial of the cause upon its merits, at which time 



390 SUPERIOR COURT RBPORT& 

Bulk «. Fctrow €imL 

a jodgment may be rendered for all damages soslaiiied op 
to the time of the la^t triaL Where an appeal is taken to a 
ooort for the correction of errors, the pioTiiiions of this sec- 
tion do not apply. 

In the case of Jimes and amolker ▼. Jr onetfiy tr, 88 AdL, 
74, it is said that though an appeal bond did not ezpiesdy 
purport to cover rent«, it operates to oover all damages in 
the case by virtue of the statute of the State. No statute 
is cited in support of the ruling ; but the case of Ward amd 
amolker v. Buell^ 18 Ind^ 104, is referred to as sustaining the 
views of the Ckiurt In that case the appeal bond was given 
on an appeal to the Supreme Court, from an ordinary jodg* 
meat of a Circuit Court, and the question in the case at bar 
is not discussed or alluded lo. Section 790 of the code, 2 
G. & H. 333, is cited, and construed in that case, but we fail 
to see that the construction of that section aids as in 
the present case. It provides that no bond shall be **void 
for want of form of substance, or recital, or condition, nor 
the principal or surety be discharged;" but they shall be 
^bound, to the full extent contemplated by the law requiring 
the same, and the sureties to the amount specified in the 
bond, or recognizance." 

This section will not allow u^ to extend tne obligations of 
a bond, beyond the terms of the statute requiring it to be 
given, however defective the bond may be in form, or sub- 
stance. It is the absence of any statute expressly extending 
the obligations of the bond in suit, so as to cover rents and 
profits, during an appeal to a court of error, that prevents us 
from sustaining the complaint in the case at bar. It is 
doubtless an omission ; but if we should hold that the statute 
of 1843, is in force, it would not aid the plaintiff, for under 
that statute it was decided that the conditions must be set 
out in the bond. Statute 1843, supra; also, Maitme v. 
McClainj supra. Under our present code, after verdict, we 



^ 



IN GENERAL TERM, 1873. 391 

Harrison v, Riutell, and Miniok. 

might hold that under the provisions of section 790, (supra) 
the defect in the bond might be deemed cured, bat as the 
question is here presented on demurrer, we do not decide it 
We have no doubt, but that this court has the power to pre- 
scribe that bonds, in such cases, shall be given with con* 
ditions covering accruing rents, and profits, but as the bond 
in suit does not contain any provisions extending that far, 
and there being no statute having that effect, it follows that 
the ruling of the Court at Special Term was right 
Judgment affirmed. 



NoTS.— See Sedgwick on Domagu^pp, i62, 468, oiu/no^. See, also, p, 86^ 



IN GENERAL TERM, 1873. 



Temple C. Harrison v. Lavin M. Russell, Hiram Minick, 

AND James Taylor, Appellants. 

Evidence — of character^ when in issue. 

• 

The appellee bad judgment against the defendants at Special Term. The 
suit was for money which the appellee claimed the defendants had 
unlawfully taken from his person, under such circumstances as to make 
them guilty of the crime of robbery, or larceny. The defendmntt 

9 



392 SUPERIOR COURT REPORTS. 

Harrison v. Russell, and Minick. 

below oflTered evidence of good character for honesty, and integrity at 
the time of the act com plained of, and at the time of the triaL The 
evidence was excluded, and the defendants appealed. 

Held: That in civil causes such evidence was inadmissible; that although 
the acts complained of may be such as to constitute a criminal offenae, 
the character of the parties is not in question, unless it is in issue; and 
it is only where character is a matter in issue that it ceaaea to be of a 
circumstantial nature — in such cases there is no oljection to reoeiT- 
ingit. 

Bvery man must be answerable for his every improper act, and the char^ 
acter of every transaction must be ascertained by its own circum- 
stances, and not by the character of the parties. 

Ritter 4* RUlerj for appellee. 

Hanna tf Knefler^ Leathers^ Duncan^ for appellants. 

Blair, J. — The complaint in this case charges that the 
defendants wrongfully took from the person of the plaintiff, 
and without his consent, converted to their own use, United 
States currency, and bank bills of the value of eight hundred 
dollars, wherefore, &c. 

The cause was dismissed as to Taylor. 

The defendants Russell, and Minnick answered in general 
denial of the matters alleged in the complaint. 

The cause was tried by a jury at Special Term, and a 
verdict rendered for the plaintiff. 

A motion for a new trial was overruled, and exceptions 
entered by the defendants. Judgment was then rendered 
upon the verdict, and the defendants appealed to General 
Term. 

The evidence introduced by the plaintiff, tended to show 
that the money was taken from the person of the plaintiff, 
under such circumstances, that the act constituted either the 
crime of robbery, or larceny, on the part of the defendants. 

On the trial of the cause, the defendants, Russel and Min- 
nick, offered competent witnesses to prove that at the time of 
the commission of the alleged wrongful act, and at the time 



IN GENERAL TERM, 1873. 393 

Harrison v. Russell, and Minick. 

of the trial, they had a good general character, and reputation 
for honesty, and integrity in the community where they lived. 
On the objection of the plaintiff, this evidence was excluded 
by the Court, to which ruling defendants excepted. 

The exclusion of this evidence is the only point presented 
for review. 

The first case to which our attention is directed by the 
appellants, in support of their position, is that of Byrket v 
Monohony 7 Blackf. 83. This was an action of slander. M. 
charged in his complaint that B, had slandered him by say- 
ing that he had committed perjury. B, replied that the 
charge was true. The language of the Court in that case, 
is as follows : '' The defendant undertook to prove that the 
plaintiff had committed perjury ; and the jury in making up 
their minds on the subject, had surely a right to take into 
consideration, if the defense was not clearly proved, the 
general good character of the plaintiff for truth. Indeed, it 
would seem that such evidence ought never to be withdrawn 
from the jury, though it will often be rendered of no avail 
by the nature of the defendant's evidence. If the plaintiff 
were indicted for the offense, it would be proper for the jury, 
in making up their verdict, to take into consideration his 
general good character for truth ; Roscoe^s Criminal Evidence^ 
72 ; and the law must be the same in the case before us." 

In that case, the question of character was directly involved. 
Monohon said his character hacf been injured, because Byrket 
had said he was guilty of perjury. Byrket's reply was, in 
substance, that his character had not been injured, for that 
what he had said, was true. The text cited from Roscoe^s 
Criminal Evidence^ is as follows : ^< In trials for high treasoui 
for felony, and for misdemeanors, (where the direct object of 
the prosecution is to punish the offense), the prisoner is 
always permitted to call witnesses to his general character ; 
and in every case of doubt, proof of good character will be 



394 SUPERIOR COURT REPORTa 

Harrison o. Ruisell, and Minick. 

entitled to great weight (1 PhilL Ev^ 165, (1). This rale 
does not extend to actions or informations for penalties, as 
to an information for keeping false weights. Attorney Geih 
eral v. Bowman^ 2 Bos.^ Sf Pul.^ 532, (n). To admit such 
evidence in that case, would be contrary to the true line of 
distinction, which is this, that in a direct prosecution for a 
crime it is admissible, but where the prosecution is not 
directly for the crime, but for the penalty, it is noV* 

An action to recover a penalty is a quasi criminal proceed- 
ings and it would seem from the above, that if evidence of 
character is inadmissible in such case, much less should it be 
allowed in a merely civil proceeding. 

The next case cited by the defendant, is that of Skanmm 
and wife v. Spencer^ 1 Blackf.^ 526. This was an action 
against Shannon, and wife for a malicious prosecution, set- 
ting forth that they had instituted a prosecution against the 
plaintiff for larceny. It lay upon the plaintiff in that case 
to show a want of probable cause for the prosecution insti- 
tuted by the defendants ; and in doing so, it was held that 
the plaintifl might show what evidence was given on the 
trial for the alleged oflense, and it was held that this would 
include the evidence given of good character; and although 
the Court in that case says : that, " it seems, under the same 
rule, that he (the plaintiff) might introduce such testimony, 
when he had not found it necessary to make use of it on the 
trial,'' a doubt is expressed as to the correctness of such rul- 
ing, and the court concludes with the following language ; 
^ But the doubt that hangs over the question, may, for the 
present, be permitted to remain, as it does not appear abso- 
lutely necessary to remove it in this case." 

We are next cited to 1 Greenieaf on Evidence^ p. 66, where 
the learned author, in speaking of evidence of character, after 
defining certain cases in which it is admissible, says : ^ And 
generally, in actions of tort, wherever the defendant is charged 



IN GENERAL TERM, 1873. 395 

Harrifon v, Ruitel], and Miniok. 

with fraud from mere circumstanceB, evidence of his general 
good character is admissible to repel iV* 

In support of this, the author cites the case of Ruan v. 
Perry, 3 Caines, 120. 

This case is cited and pretty severely criticized in Fowler 
V, Tke JStna Fire Insurance Company^ 6 Cowen^ 675 ; and 
although not expressly overruled, it was held to be an excep* 
tional case, ^ where a naval officer was charged with gross 
fraud, and collusion with a foreign officer, upon slight circum- 
stances." The Court, in speaking of the rule in the case of 
Ruan V. Perrpy says : ^ If such evidence is proper, then a 
person may screen himself from punishment due to fraud* 
ulent conduct, till his character becomes bad. Such a rule 
of evidence would be extremely dangerous. Every man 
must be answerable for every improper act ; and the char* 
acter of every transaction must be ascertained by its own 
circumstances, and not by the^ character of the parties." 

In the case of Chugh v. jSe. John, 16 Wend.^ 646, the Court, 
by Cowen, J., after speaking of certain civil causes, as in 
actions of slander, criminal conversation, and breach of mar- 
riage promise, which present frequent exceptions to the gen- 
eral rule, that evidence of character is not admissible in 
civil causes, uses the following language : *' Bat where a 
civil action is brought for an injury to property, though the 
injury was legally criminal, and involved moral turpitude, in 
so much that on an indictment, character would be obviously 
receivable, there is no authoritative case, save Allan v. Perrp^ 

which favors its admissibility." The case of Ruan v. Perry ^ 
is further spoken of as ^ virtually exploded by the later 
authorities." 

In further support of the text cited from Greenleaf, the 
case of Walker v. Stepheneon^ 21 Esp.^^ 284, is cited. But 
this case seems never to have been followed in Westminis- 
ter Hall as an authority, and the English courts adhere to 



396 SUPERIOR COURT REPORTS. 



Harrison v. Riusell, and Minick. 



the rule that evidence of general character is not admissible 
in civil proceedings, unless the character of the party be 
directly in issue. 

In the case of Houglitaling' v. Kelderhouse^ 2 Bari^., 149, 
the Court says the case of Ruan v. Perry has been distinctly 
and repeatedly overruled by the Supreme Court of this State, 
and. the English rule adopted as laid down in The AUomey 
Oeneral v. Bowman^ 2 Bos.j and PulL^ 532, note a. 

In the case of Pratt v. Andrews^ 4 N, Y., 493, Bronson, 
Chief J., in delivering the opinion of the Court, says : ** A 
party to a civil suit was at one tinne, or rather on one occasioo, 
allowed to give evidence of his good character in answer to 
circumstantial evidence on the other side, imputing to him a 
gross fraud. {Ruan v. Perry^S CaineSj 120). But that case 
was long since overruled." 

In the case of Church v. Drummondj 7 Ind.^ 17, the Coort 
announces the rule to be, ''that only in cases where the char- 
acter is in issue, can evidence of general reputation be given." 
And in speaking of the text cited from Greenleaf, it is said 
that, '' the cases he cites can scarcely be said to sustain his 
position." 

Putting character in issue, when used in reference to civil 
causes, is a technical expression, and is confined to certain 
actions from the nature of which the character of the parties, 
or some of them, is of particular importance. Such instances 
occur in suits for seduction, criminal conversation, and in 
certain issues made by the pleadings in actions for slander, 
and it may also be in actions for malicious prosecution. In 
many of these cases, character becomes an important ele- 
ment to be considered in the question of damages. Ander^ 
son^ Ex., V. Long, 10 Serg., & R, 55, 

In the case of Morris v. Hazelwood, 1 Bush*, (Ky.) 206 
the action was for money, of which the plaintiff claimed to 
have been robbed, as in the case at bar, and evidence of the 



IN GENERAL TERM« 1873. 397 

Harrison v. Ruasell, and Miniok. 

general character of the defendanti was held inadmidsible. 

We have been unable to find any authorities which we 
deem entitled to weight, that hold otherwise. 

In the case of Humphreys v. Humphrey Sj 7 Conn.^ 116, the 
Court says : ^' causes charging cruelty, gross fraud, and even 
forgery, are often agitated in suits by individuals ; and the 
result not unfrequently affects the property, &nd reputation of 
the party deeply ; yet no individual has been permitted to 
attempt to repel the proof by showing a good reputation." 

We bdieve the general rule to be that in civil suits, even 
where the right of action is based upon acts that constitute 
a criminal offense, evidence of the general character of the 
defendant is inadmissible, except for purposes of impeach- 
ment, where the party testifies in the cause. It is only where 
character is a matter in issue, that it ceases to be of a cir- 
cumstantial nature, and in such cases there is no objection 
to receiving it And the discussion of the question in the 
case of Anderson^ Ex.^ v. Langj supra^ affords a good illus- 
tration of the application of the rule to those cases where 
character may be said to be in issue. 

The foregoing rules are also fully supported by the follow- 
ing authorities : 1 PAi/., on Ev.,467; also, Cotoen y. HillSy 
notes to same<i note 315, p, 620 ; Nash v. Crilkeson^ 5 Serg.^ & 
It, 352 ; PoUer v. Webb, 6 Greenl., 14 ; Ward v. Hemdon, 5 
Porter y 382 ; Kentland v. Bissetty 1 Wash., C. C, 144 ; Smets 
V. Plunkety 1 Strobharty 372; GatzmUler v. Lockwoodj 23 
Missouri, 168 ; Wright v. McKee, 37 Vermont, 161. 

We are of opinion that there was no error in excluding 
the evidence offered by the defendants, and the judgment 
must be aflSxmed. 



396 SUPERIOR COURT RBPORTGL 



Jaekwii «. Aiama, aad Alltooa. 



IN GENERAL TERM, 1873. 



John Jaokson v. David O. Adams and Albbkt J. Allisoit, 

Appellanta. 

NoTioB — to tenani—for possession — 
Pleading — when defective — 
Statute — construction — 
Superior CovBT^-jurisdiction. 

Oomplaint against a tenant holding over. 

HM : That a complaint against a tenant holding oyer miiit ahow thai th« 
relation of landlord and tenant existed ; that the tenancy haa been 
determined ; that the plaintiff has a present right of poMeaaion^ and it 
must describe the premises with reasonable certainty. 

The county is sufficiently identified by locating the property in the eily of 
Indianapolis, and State of Indiana. The State being given, the Oourt 
will Judicially take notice that the city of Indianapolia ia in Marion 
county. 

If a complaint is good under the act of May 18, 1862, concerning the unlaw- 
fill detention of lands and the recovery thereof it ia onimporCanl 
whether it is sufficient under Sec.. 695 of the Code. 

The Superior Court has original jurisdiction in suita againat tenanta hold- 
ing over. 

J, N. Scott J for appellants. 

Barbour^ Jacobs Sf Williams^ For appellee. 

Newcomb, J. — The plaintiff sued to recover poasession of 
real estate. There were two paragraphs of the oomplaiilt 
to the first of which a demarrer was sustained. 

The second paragraph is as follows : 



IN GENERAL TERM, 187a 399 

Jtekion V. Adainii and Alliion. 

^ And for second cause of action the plaintiff says the 
defendants were in possesmon of said premises as his tenants 
by the year, and that their yearly lease expired on the 31st 
of January, 1873; that on the 3l8t of October, 1872, he gave 
the defendants notice to yield possession of their premises at 
the expiration of the year aforesaid, a copy of which notice 
is in the words and figures following, to wit: 

Indianapolis, Ind., October 31, 1872. 
To Mr. David O. Adams and A. J. Allison: 

Yon are hereby notified to deliver ap to me, at the expira- 
tion of three months from the time of receiving this notice, 
the possession of the following premises, viz : the third story 
rooms of bailding known as No. 39, East Washington street, 
Indianapolis, Indiana, now held by yoa of me (the said rooms 
being ased as a photograph gallery). 

Dated, this thirty-first day of October, 1872. 

(Signed), John Jackson.'* 

Bat the plaintiff says the defendants refused to vacate or 
surrender said premises to him at the time mentioned, and 
now hold over and iceep possession of the same without 
right, and keep plaintiff out of possession thereof, to his 
damage in the sum of five hundred dollars, for which he 
asks judgment, and all other proper relief. 

A demurrer to this paragraph was overruled, and the 
defendants excepted. Issues of fact were then formed, and 
there was a finding for the plaintiS. The defendant theu 
interposed a motion in arrest of judgment. This motion 
was overruled, to which defendants excepted, and judgment 
for possession of the premises was rendered in plaintiff's 
favor. 

The objections urged against the sufficiency of the com-^ 
plaint are : 

1. That it does not aver that plaintiff is entitled to the 
possession of the premises. 



400 SUPERIOR COURT REPORTS.^ 

^•?jft 

JftckBon «. Adaim, and AUiioii. V^O^^!: 




2. That the premises soaght to be recovered are not 
described with safficient certainty : 

3. That the complaint does not state what interest the 
piaintiflf claims in the property. 

The Statute in relation to the recovery of real property, 
2 G. & H. 282, Sec. 595, has this provision : 

^The plaintiff^ in his complaint, shall state that he .is 
entitled to the possession of the premises, particularly 
describing them, the interest he claims therein, and that 
the defendant unlawfully keeps him out of possession." 

The complaint is informal in its structure, but if the prop* 
erty in dispute is described with sufficient certainty, we think 
there is enough stated to show a right of possession in the 
plaintiff 

But under the section of the Statute, cited above, the 
complaint is defective for not stating the interest the plain- 
tiff claims in the premises. 

If, however, the complaint can be sustained under the Act 
of May 13, 1852, concerning the unlawful detention of lands 
and the recovery thereof, 2 G. & H. 630, it is unimportant 
whether it is sufficient under Section 595 of the Code of 
Practice. 

The first section of the Act of 1852, is as follows : 

<^ That whenever, in pursuance of legal notice, or other- 
wise, any landlord, or his legal representative, shall be entitled 
to possession of lands, he may, by himself or his agent, have 
any tenant who shall unlawfully hold over, removed from 
such lands, on complaint before a Justice of the Peace of the 
county in which such lands lie, specifying the matters relied 
on to justify such removal, and the damages claimed for 
detention, describing the premises with reasonable cer^ 
tainty." 

By an Act approved March 4, 1853, Courts of Common 
Pleas were given concurrent jurisdiction with Justices of the 



IN GENERAL TERM, 1873. 401 

Allison V. Adama, and Allison. 

Peace, in actions of forcible entry and detainer, and against 
tenants holding over. 2 G. & H. 630 — note. 

Section 10 of the Statute creating the Superior Court, 
confers upon it ^ original concurrent jurisdiction with the 
Circuit Court, and Court of Common Pleas, in all civil causes 
except slander, and except such causes of which the Court of 
Common Pleas now has original, exclusive jurisdiction. 
Acts of 1871, p. 50. 

This Court, therefore, has original jurisdiction in suits 
against tenants holding over. 

Is the complaint sufficient under this Statute ? One of 
its requirements is, that the premises shall be described with 
reasonable certainty. 

In Leary v. Langsdale^ 35 huL^ 74, the complaint, which 
was filed before a Justice of the Peace, described the prem- 
ises as ^ Room No. 2, in Langsdale's block, in the second 
story, on lot in square 57, in the city of Indianapolis." The 
Supreme Court said in that case: *<Many insufficiencies 
might be pointed out in this complaint, but it is enough to 
flay that it does not describe the property with any reason- 
able degree of certainty. Nor does it state in what county 
or State it is situated. This is fatal, and is not cured by 
answer." 

In the case at bar the county is sufficiently identified by 
locating the property in the city of Indianapolis, and Slate 
of Indiana. The State being given, the Court will judicially 
take notice that the city of Indianapolis is in Marion county. 
Indianapolis 6f Cincinnali Railroad Cb., v. Case^ 15 jfitdl, 
42 ; same v. Stevens, 28 u/., 430 ; Hays v. The State, 8tk id. 
425. 

But the complaint is still defective in the matter of descrip- 
tion. 

The property sought to be recovered is nowhere described 
except in the notice, and there are no averments connecting 



402 SUPERIOR COURT RBPORTa 



the premises named in the notice with the pieoediog allega- 
tions. 

The word ** said," in the first sentence of the oomplainti 
has no antecedent, and consequently refers to nothing. 

The words "their premises," in the same sentence, are not 
supported by an averment that they are the same premises 
mentioned in the commepcement as being held by the 
defendants as tenants of the plainti£ 

That part of the complaint following the notice fiuls to 
state facts showing a right of possession in the plaintiff, and 
as the notice is not connected by proper averments with the 
preceding portion alleging a tenancy, there is really nothing 
in the complaint, bat the notice and the charge that 
defendants failed to yield possession of the premises 
therein described. 

The proceedings of Special Term mast be reversed back 
to the first error. 2 G. & H., Statute 276, Sec 569. That 
error was in overruling the demurrer to the complaint 

The judgment is, therefore, reversed, with costs, with 
instructions to sustain the demurrer, and give the plaintiff 
leave to amend. 



IN GENERAL TERM, 1873. 403 



Bill V. Stagg. 



IN GENERAL TERM. 1873. 



Gborob W. Hill, Appellant, v. Charles W. Staoo. 

Mechanics' Lien — 
Notice — 
Practice. 

In an action to enforce a mechanics' lien, the notice must be filed within 
sixtj days from the date of the last item of the account for work done 
or materials furnished, or if a credit be given, from the expiration ol 
the credit. The debt becomes due on the delivery of the materialS| 
f no time is given by contract, when the year within which suit must 
be brought, commences to run. 

The law of mechanics' lien is to give security, not only to the mechanic for 
a reasonable period, but to subsequent purchasers after that period, and 
the notice of lien, therefore, should so describe the claim as to inform 
the public to which class it belongs, whether of claims due, or not due 
and any ambiguities in such notice will operate to the prejudice of the 
authors of them, rather than to that of the public. 

A notice to acquire a mechanics' lien cannot be reformed, as a mortgage 
created by the act of the owner can be to make it conform to intention — 
it must meet the requirements of the Statute. 

It is discretionary with the Court to permit an answer to be withdrawn, 
and a demurrer instead to be filed. 

E. A, Parker^ for appellant 
Morrow Sf TruiUrj for appellee. 

PsRKiNSy J. — Uu the 21st of November, 1871, George W. 



404 SUPERIOR COURT REPORTS. 

Hill V. 8iMgg. 

Hill filed in the Recorder's office of Marion county, a notice 
of which the following is a copy : 

INDIANAPOLIS) Novcmber 20, 1871. 
7b Charles W. Stagfr^ and all others concerned : 

Yon are hereby notified, that Jacob Coffman, whom yon 
employed to erect a dwelling house on lots 10 and 11, in 
square 13, Drake's addition to the city of Indianapolis, 
Marion county, Indiana, is indebted to me in the sum of 
eight hundred dollars, on account of lumber furnished him, 
and which was used in the erection and construction of said 
dwelling house ; and that I hold you and said property 
responsible to me for the payment of said 9800. Said lum- 
ber so furnished, was furnished by me at the special instance 
and request of said Coffman, contractor, as aforesaid, and 
within the last sixty days. Gborob W. Hill. 

On the 18th day of November, 1872, said George W. Hill 
commenced a suit to enforce a mechanics' lien for the amount 
specified in said notice, upon the house of Stagg, making 
one Cynthia A. Hedges, who claimed some interest in the 
property, a co-defendant. 

The account on which the suit was based, did not show 
that the articles composing it were sold on a credit, but the 
complaint contained an averment that such was the fiict 
The cause was put at issue by answer and replication. 

Afterward, the Court permitted the answer to be with- 
drawn, and a demurrer to be filed to the complaint 

This action of the Court is assigned for error. 

It was a matter in the discretion of the Court Morris v. 
Graves, 2 Ind.j 354. 

The Court sustained the demurrer to the complaint, which 
ruling was excepted to, and, the plaintiff failing to amend, 
final judgment was entered for the defendant This ruling, 
upon demurrer, presents the remaining question for decision 



A 



IN GENERAL TERM, 1873. 405 

Hill V. Stagg. 

in the cause. Conceding, for the purposes of this case, that 
a lien had been created, was the suit for its enforcement 
commenced in time ? 

Section 651, 3 Statutes of Indiana, page 337, under which 
this suit was instituted, reads thus : 

'^ Any person having such lien, (mechanics- lien) may 
enforce the same by filing his complaint, &c., at any time 
within one year from the completion of the work or furn- 
ishing the materials; or, if a credit be given, from the 
expiration of the credit" 

The first item of the account sued on is dated August 31^ 

1871, and the last is dated October 13, 1871. This suit, as we 
have before stated, was instituted on the 18th of November, 

1872, over a month more than a year from the date of the 
last item of the account sued on. 

As neither the notice filed to acquire the lien, nor the 
account filed with the complaint, shows that any credit was 
given on the account, it purports to have become due at the 
date of the last item. This was decided in Mooney v. MyerSy 
5 Blackf.^ 331, a mechanics' lien case. Judge Sullivan, in 
delivering the opinion of the Court says : 

<< Where in a contract for the sale of goods, no time is given 
for payment the l^w implies a contract to pay for them on 
delivery. The debt, then, having become due on the delivery 
of the materials, the notice should have been filed within 
sixty days from that time." 

So, in this case, the debt having become due according to 
the notice, at the date of the last item of the account, it 
would seem that this suit should have been instituted within 
one year from that date. 

But it is contended that though the notice filed to acquire 
a lien, describes the claim as being due, still, that that notice 
may be varied by parol evidence ; that the claim described 
therein as due, may be shown, by such evidence, under a 



\ 



406 SUPERIOR COURT REPORTS. 

Hill V. SiMgg. 

proper aTerment in 'the complaint, to be payable after the 
expiration of a credit, and that the ^ait was thus brought in 
time. But this doctrine is in conflict with the case of WiuU 
▼. Eeilz, 18 Lul., 307, in which it is said : «< The statate 
giving a mechanics' lien contemplates two classes of claimsi 
doe and not dae ; and the notice should so describe the claim 
as to inform the public to which class it belongs ; and ambig- 
uities should operate to the prejudice of the anthors of themi 
rather than to that of the public." 

This decision was made about eleven years agOy and has 
not, as we are advised, been overruled. Nor do we think it 
should be disregarded by this Court 

What appears to have been the object of the Legislatoie 
in authorizing the creation of these mechanics* liens, and 
prescribing the mode, and limit as to time, of their enforce- 
meut ? Plainly to give security to the mechanic for a reaaon- 
able period, and protection to subsequent purchasers and 
incumbrancers after that period. The Statute authorizes the 
mechanic to file his lien within sixty days, &c., and to enforce 
it by suit within one year from the time it becomes due. If 
not enforced by suit within that period of time, the lien 
expires by mere operation of law, without any act of the 
parties; and they are created, and they die upon a pablic 
record, that the public may be definitely informed of each 
event But if, in taking his lien, the mechanic can describe 
it as due at one time, and then, in his suit to enforce it, prove 
it due in fact by private contract between the parties, at 
another, perhaps a time six years later, of what use is the 
notice as a means of information as to when the lien will 
expire by delay in bringing suit? 

Certainly, public policy requires that such a practice, nnder 
the mechanics' lien act, should be required, as will tend to 
secure stability to titles to land, prevent fraud, and facilitate 
its sale and purchase, and especially, where such practice 
imposes no hardship on the party taking the lien. 



IN GENERAL TERM, 1878. 407 

Hill V. Stagg. 

As analagoas in principle, we may cite those ca^es, and 
they are nnmerous, where the notice to acquire the lien fails 
to describe with accuracy and definiteness, the property on 
which the lien is sought to be acquired. 

It should be remembered that these mechanics' liens are 
not created, as in case of mortgages, by the voluntary act 
of the owner of the property, but forced upon it, in invUum 
the owner, by the exparte act of the creditor ; hence, he should 
be held strictly to the lien he has thus created, both as against 
the owner of the property and the public. Accordingly, it 
was held in Lindley v. Cross^ 31 //mL, 106, in a suit against 
the owner of the property, where the right of no third party 
intervened, that a notice to acquire a mechanics' lien could 
not be reformed, as a mortgage created by the act of the 
owner could have been, to make it conform to intention. 
The Court says : '' The lien of the mechanic or material man 
is created by Statute, and before either can avail himself 
of such a lien the Statute must be complied with. The 
notice charged in each paragraph of the complaint was 
insufficient to create the lien, and the Court had no power 
to reform it." See, also. Hunger v. Oreenj 20 J&id, 38; 
Hamell v. Zerbee, 26 Ind.^ 214. 

The judgment at Special Term is affirmed. 
10 



408 SUPERIOR COURT REPORT& 



Fletcher ttoLm. Finoh, and School*/. 



IN GENERAL TERM. 1873. 



Stouohton a. Fletcher et al, v. Georob W. Zbiolbr» 
Fabius M. FiiycH and Thomas 8choolbT| Appellants. 

Promissory Note — Murelies^ tiabilUy on — 
Sureties — conlribuHonj between. 

Suit on A note made by A, and B to C and indorsed b j C to tbe ]dda- 
tiffs. C answers that his co-defendants were the makers of tbe Doii^ 
and are primarily liable, and that he is only an acoommodmUon iiidor> 
ser, and that they be first exhausted to pay said note. B anaweriDg^— 
denies C's averments, and avers inter alia^ that A is the principal, and 
that he is a co-surety with C, and that before suit, this defendant paid 
one-half of said note and costs, and that execution ahoold now ba 
levied on the g^oods of C for the residue. 

Demurrer by C to these answers was overruled. 

Held : There was nothing material in these answers, but what was clearly 
admissible under the general denial. The Statute does not authoriae 
the Court to say that the debt shall be first levied of the goods of one^ 
or more of the sureties. The creditor has a right to hold all the soreCiat 
for all the debt until it is all paid. The defendants were all liable^ and 
as to the plaintiff, parol evidence was inadmissible to vary the liability 
which the law attaches to the parties from the position in which their 
names appear upon the paper. 

Aa between themselves, the rule is different, and the Statute gives partiat 
liable upon paper an ea^y and convenient remedy for sureties to hava 
their liability, as to other parties, tried and determined. 

Held: The Statute does not authorize the Court to interfere with, or delay 
the remedy of the creditor in order to settle qu(»tions of contribution 
between sureties. It is only where one surety has paid more than bis 
share, that he has a claim for contribution, there was no error in the 
ruling of the Court on these demurrers. 

Hanna 8f Knefter^ for appellants. 
Ta^lor^ Rand 4* Ta;ylor^ for appellee. 



IN GENERAL TERM, 1873. 409 

Fletcher et al, v. Finch, and Schooley. 

Blair, J. — This is a suit upon a negotiable promissory note, 
purporting to be made by Zeigier, and Finch, payable to 
Schooley, and by him indorsed to the plaintiflb. 

The defendant, Schooley, answered by' way of cross-com- 
plaint, under the provisions of Sections 674 and 675 of the 
Ck>de, (2 G. &. H.) that his co-defendants Zeigier, and Finch, 
were makers of the note, and primarily liable, and that he is 
only an accommodation indorser, or surety, and he asks that 
his co-defendants be first exhausted, &c. 

To this cros8-complaint the defendant. Finch, filed an 
answer in three paragraphs, the first a general denial, 
and the other two setting up in substance, that the note 
was made by Zeigier for money loaned him, and that 
he (Finch) signed the note as surety for Zeigier, and 
as a co-surety with Schooley, of which facts he avers 
Schooley had full knowledge, and that before suit he paid 
in full, one-half the amount of said note, and costs of pro* 
test, and he asks that execution may be first levied on the 
goods of Schooley for the residue. 

A demurrer of Schooley was overruled to each of these 
paragraphs. This ruling is the first error assigned. 

There was nothing material in these answers, but what 
was admissible under the general denial. The statute 
before cited only authorizes an order to be made that the 
debt shall be first levied of the goods of the principal. It 
does not authorize the Court to say that the debt shall be 
first levied of the goods of one, or more of the sureties. 
The creditor has a right to hold all the sureties for all of the 
debt, until it is all paid. He cannot be compelled to have 
his debt levied of the goods of each surety, as he may be in 
turn liable, thus probably having his payment delayed. 

The allegation of the payment of one-half of the debt 
was, therefore, mere surplusage, and Schooley was not, nor 
could he have been injured by the ruling on the demurrer. 



410 SUPERIOR COURT REPORT& 

Fleteher gimLm, Finch, and SdMMkj. 

The defendantB were all liable to the plaiotiffii opoo the 
note, and the aothorities eited by the appellant Sehooleyi 
show that as to the plaintifl^ parol evidence was inadiniasable 
to vary the liability which the law attaches to the parties 
from the position in which their names appear upon the 
paper. This is now the law in this State. Drake t. 
HdrUe, 21 LuL, ^33; Smiik ▼. The Mmde Naiumei 
Bank, 29 Ind., 158; Bowter etoL y. Rendell, 31 iki^ 128; 
As between themselves, howeveri the role is different^ 
and the statute before cited gives parties liable upon 
paper, an easy and convenient remedy for soretiee to have 
their liability as to other parties tried, and determined. Bar- 
ker V. GtideweU eiaL,2i iuL, 219. 

There was no error, therefore, in the ruling of the Oomt 
on the demurrers. 

The Court, on the trial of the cause, found that Schooley 
and Finch were co-sureties for the defendant Zeigler. 

The next error assigned is the overruling of the defendant 
Schooiey's motion for a new trial. The only additional 
question raised upon this ruling is the sufficiency of the 
evidence. 

We have examined the evidence, and think the finding was 
fully sustained. The testimony of the defendant, Schooley, 
is to the effect, that Zeigler represented to him that Finch 
was to be a maicer of the note, and that he indorsed it on 
the faith of such representations. Finch's name was not 
then on the* note, and there is no evidence tending to show 
that Finch authorized Zeigler to maice any statements that 
he would join as a maker ; .and it is clear from the evidence 
that Finch only signed as a surety for Zeigler. 

The defendant, Finch, made a motion for an order that 
execution be first levied of the goods of Schooley. This 
motion was overruled, and the ruling is assigned as error by 
the defendant, Finch. 

The statute does not authorize the Court to interfere with, 



IN GENERAL TERM, 1873. 411 



Flatober HaL^. Finch, and Sohooley. 



or delay the remedy of the creditot, in order to settle qaes- 
tions of cootributiou between saretiesi in a suit by the credi- 
tor. It is only where one surety has paid more than his 
share, that he has a claim for contribntion. Finch only shows 
that he has paid bis fall share. 

For these, and other reasons heretofore given in reference 
to the allegations in the pleadings, we think there was no 
error in overroUng the motion. 

Judgment affirmed. 



NoTX. — "The surety's right to re^imburaemeiU from the principal aocraeS| 
ioUu guoties, he is compelled to make a payment ; with regard to his right 
lo contrihution, it is differenti for until one has paid more than his propor- 
tion, either of the whole debt, or of the part which remains due from his 
principal, it is not clear that he oyer will be entitled to demand anything 
from the other, and before that, he has no equity to reoeiye a contributioii, 
and consequently no right of action which is founded on the equity to 
Mcure it," 

** Wheneyer it appears that one has paid more than his proportion of 
what the sureties can ever be called upon to pay, then, and not until then, 
U is also clear, that such part ought to be repaid by the others, and the 
aetion will Ue for it" See SmUh'9 Mer. Law, p. 68(^7, and mOAonHm 

The surety in such case may compel contribution without showing an ina- 
bility in the principal to.pay. Note marginal page 628, CSiittg <ni CkmttaeU^ 
contra m eame note ; seo^ ftirther, ChiUg on Oontraeie, marginal page 628, 624 
and Sedgwick en Damagee, 841, andnotee^ — ^Bxpoarxa. 



412 SUPERIOR COURT SEPO&Ta 



GHiHPlwn •• Milter. 



IN GENERAL TERM, 1873. 



John D. Campbbll v. Adam R. Millbb, AppeUmnt. 
CSoNTKACT — mmFpetformamce of-^ 

On » contract of pnrchaM, and mle^ neither party can fUfUin a iuit on the 
agreement for non-performancei without haTing tiwt parfbrmadi or 
offered to per/orm, his part of the obligation. 

A. F. Demnif^ for appellant 
Bamma Sf Snefler^ for appellee. 

NbwcomBi J. — Campbell saed Millar on the foliowiog 
instrument : 

^ Mb. a. R. Millbb. — I will give my lot on PennsylTania 
street, and will assume an incumbrance of four thoasand 
dollars on lot No. 4, in Adamson's sub-division, in the city 
of Indianapolis, and will pay the 928.00 interest that is now 
due on the 9400 note to the State of Indiana, yoa paying 
the interest that is now due on the 93,600, (being 9360,) for 
your house and lot, situated at No. 331 North Pennsylvania 
street. You assume my taxes and street improvements for 
1870, and I will do the same on yours, and will take posses- 
sion of your property on the 20th day of October, 1870, ami 
the said Miller obligaiing to pay me 9400 /or the 120 acret of 
land in Shannon county^ Missouri^ on the first day of Avgnstf 
1872, provided it is not sold before that time, and Miller pay- 
ing the interest on the State of Indiana note for the year 

1872. J. D. Campbbll." 

September 22, 1870. 

^ I accept the above proposition. 

A. R. Millbb." 



IN GENERAL TERM, 1873. 413 

Campbell v. Miller. 

By way of explanation of the vagueness of the written con- 
tract, the complaint contains averments to the effect follow- 
ing : That Campbell was the owner of the property on Penn- 
sylvania street, which he proposed to convey to Miller and 
ix^hich was wholly unencumbered; and that Miller was the 
owner of said lot No. 4, in Adamson's subdivision, which 
was largely encumbered, to-wit: Firsts by a mortgage to 
Mrs. Claypool in the principal sum of 83,600, with accrued 
interest to the amount of (360 ; and. Second, by a mortgage 
to the State in the sum of 9400, with accrued interest to the 
amount of 828.00; that the defendant, Miller, then expressed 
a desire to pay off the said 8400, and represented that he 
was the owner of 120 acres of land in Shannon county, 
Missouri, and agreed to convey the said 120 acres to the 
plaintiff, Campbell, and if plaintiff should not sell the land 
for 8400 on, or before August 1, 1872, that he (Miller) would 
then pay Campbell said 8400 for the said land, if he (Camp- 
bell) should have to pay the said 8400 to the State, and that 
with this understanding and agreement^ the plaintiff proposed 
to assume, and pay the said 83,600 lien, and said 8400 lien, 
together with the 828.00 accrued interest thereon ; that each 
of the parties had this understanding of the facts at the time 
of the making of the said proposition by plaintiff to defend- 
ant ; that plaintiff was not then the owner of said 120 acres, 
but that the defendant was to convey the same to the plain- 
tiff, and that it was upon the faith that he would do so, and 
upon the faith that the defendant would pay plaintiff 8400 
therefor on August 1, 1872, if plaintiff should not sell the 
same for that amount before that time; that the plaintiff 
agreed, and assumed to pay the said 8400 to the State, 
together with the other sums aforesaid. 

Plaintiff avers that it was upon this understanding of the 
said contract that he (defendant) afterward conveyed to plain- 
tiff his- said lot No. 4, and he (plaintiff) afterward assumed 



4U SUPERIOR COURT RBPORTa 

CunpMl V. MiD«r. 

amd paid the said CHajfpool Ken, and the defandmat Dot baving 
paid the said $400, and plaintiff haWng been wholly wuMe 
to sell the said 120 acres of land for 9400| or for anything^ 
and defendant failing to pay plaintiff $400 on August 1, 1872» 
the plaintiff paid the State the said 9400 with interest. 

Plaintiff then alleges and gives a more particular descrip- 
tion of the 120 acres, and says that by the description given, 
he (the defendant) in pursuance of the mniersiandmf cf ike 
eoniract conveyed to him (plaintiff) the said 120 acres am 
April 29lA, 1871, by his deed of that date. 

A deed for the 120 acres of land was tendered with the 
complaint, and brought into Court ; and the complaint states 
that no part of the 9400 has been paid by Miller. 

Prayer that the written contract be so reformed a« to 
express the understanding, and agreement of the parties as 
stated, and that plaintiff have judgment against the defend- 
ant for said sum of 9400, and interest thereon. 

A demurrer to the complaint was overruled, and the 
defendant excepted. 

On the issues of fact formed there was a finding for the 
plaintiff for 9410.63, and judgment on the finding, over 
defendant's motion for a new trial. 

We think the written memorandum, with or without the 
extrinsic facts stated in the complaint, shows an agreement 
by Miller to purcha^ the 120 acres of Missouri land of 
Campbell, at the price of 9400, on the first day of August 
1872, in case Campbell should not otherwise sell the same 
before that date. 

It being a contract of purchase and sale, neither party 
could sue the other for non-performance, until he had first 
offered to perform his part of the obligation. A vendor ean- 
not maintain an action against his vendee for the purchase 
money, when the whole thereof is due, without avering and 
proving a tender of a conveyance before suit brought 



IN GENERAL TERM, 187a 416 

— 

Campbell v. Miller. 



▼. Shirley, 7 Blaekf.f 452 ; Cbx v. Htuardj id. 408 
trebmd v. Chavncey, 4 Ind., 2SiA\ Bert y. ElUworth, id. 261 
Mix V. EUiwortk, 5th,id.Sn\ Mather v. Scdle$, 25th^ id. 1 
MeOuUoch v. Dawson, 1 id. 413. 

The complaint failed to aver a tender to Miller of a deed 
before suit The deaiarrer shoald, therefore, have been sas- 
tained. 

The judgment at Special Term is reversed, and remanded 
with instructions to sustain the demurrer to the complaint 



NoTX. — See Chitfy on Contracts, p, 816, and notes. 

In an action against the vendee for the purcbaae money, the vendor most 
■how that he has prepared and tendered a deed of conveyance, or haa 
offered to prepare and tender inch deed, and haa been diacharged, or 
excoaed fh>m preparing, and tendering it by the acts, or conduct of the 
vendee. Qrem v. Seynolds, 2 John^ 207; Johnson v. Wygani, 16 Wendell^ 
48; Hunt v. Livermore, 6 PieL, 896; Wamer v. Hatfield, 4 Blaekf., 892. 
See, alto, Timuy v. Ashley, 16 Pick., 646; Sugden on Vendors, Ch, 4. 

What will satisfy an agreement to sell and convey ? See Chitiy on Con- 
tracts, and notes on pp. 816, 824, inelueive. 

The mle of damages is the parohase money agreed to be paid, and 
interest thereon, from the time of defkult in not Ailfllling the agreement— 
(this where the deed has been made and tendered by the vendor). 4 Qreen- 
leaf, 268 ; 16 Maine, {Robinson v. Heard) 296 ; 88 Maine, (OaimanT, Waiker) 
67. See, also, Fletcher v. Button, 6 Barb^ si^. Ct Reports, 646. 

For cases in which the language used in agreements, or covenants to con- 
vey has been construed by dilTerent courts. See mote on page 819, Chitiiy on 
Contracts, 

^ Where the vendor acted tn badfidlh, the plaintUf would be entitled to 
recover, by way of damages, the difference between the contract prioe^ and 
the enhanced value when the conveyance should have been made." See 
Baldwin v. Munn, 2 Wend., 899; Brinekerhof v. Phelps, 24 Barb.. 100; 48 
Barb., 469; also, Foley v. MeKeyan, 4 Iowa, 1 ; see Sedyvrick on Damages^ 
OL " ContracU for sale of land," p. J96^ et esq. B^aHiUiardim Vendorm 
chaps. 12, 14 ofuf 26, and pp. 27 and 672. 

An averment of readiness to perform is not sufBcient Where an agree- 
ment is to be executed on both sides at the same time, neither party can 
maintain an action without showing performanoe^ or an offer to perform on 
hia part. Van Sehaick v. Winne, 16 Barb., 89, 98. 



416 SUPERIOR COURT REPORTa 

Johnson v. Miller et ux. 

A eufficieni performance by actual surrender, or tender and refbaal, rnuit 
be averred in the declaration, as well as the further averment sbowm|^ wAa< 
title he had to convey. PhiUipM v. Fielding^ 2 H., BlacJcMtone^ 128. "Se^ 
Airther, Hilliard on Vendors^ p, 675, H se^, and notes; see Fry en £jMe|^ 
Pitrformance, p. 133, See. 888, ei aeq^ p. 188, Siee, 608, ei 9$q. — ] 



IN GENERAL TERM, 1873. 



Grafton Johnson, Appellant, v. Adam R. Millbr, bt ox* 



Mortgage — appliccUion of rents 
Mortgagee — accounting by. 

A mortgagor is not bound to account for rents and profits whila be ii in 
posse&iion of the mortgaged premises. 

A mortgagee must account for the rents and profits, fh>m the time he takes 
possession of the mortgaged estate, and he will be charged an occupy 
tion rent for any portion of it held by himself. If there be no intereat 
due at the time the mortgagee takes possession, and the annual rents 
exceed the amount of annual interest payable on the mortgage^ soeh 
rents will be directed by the Court, in order that the exceaa maj be 
applied in sinking the principal. 

Annual rents are directed in an account of occupation rent, aa well as ii 
an account of rents and profits received. 

Finch if Finchf for appellant 
A. F, Dennt/j for appellee. 



IN GENERAL TERM, 1873. 417 

Johnson v. Miller et %ix. 

Prrkins, J« — Suit to foreclose a mortgage. The facts are 
as follows : 

On the 25th day of August, 1871, Lizzie E. and Adam R. 
Miller executed a mortgage on a lot and house in Indianapolis, 
to secure the payment of a note executed by the mortgagors 
to Grafton Johnson, the mortgagee, for 81000, due in six 
months, with ten per cent interest after maturity, and 
reasonable attorqey's fees if suit should be instituted, &cc 

On the same day, and as further security for the payment 
of said note, the mortgagors surrendered the possession of 
the mortgaged premises to the mortgagee, and thenceforward 
occupied them as his tenant at 835 per month. This was 
the legal effect of the action of the parties to.uching the 
occupancy of the mortgaged premises by the mortgagors. 
As further collateral security, the mortgagors delivered also 
to the mortgagee, a note on a third person for between four 
and five hundred dollars. There was no special agreement 
as to how the rent of the house, or the proceeds of the collat- 
eral note, should be applied. 

That we are right in our construction of the agreement as 
to the possession, and rent of the mortgaged premises, we quote 
the brief of appellant ^ The parties agree in this : Plaintiff 
loans a sum of money to defendants ; as security for this loan 
defendants execute the note, and mortgage; as further 
security they put plaintiff in possession of the mortgaged 
premises. By the same agreement, by which they put plain- 
tiff in possession, they agree themselves to occupy as his 
tenants, and pay monthly the rent at 835 per month.'- 

The points in dispute in the case is this : The plaintiff 
(appellant here) claims that he is entitled to receive the 835 
per month rent, in addition to the interest reserved in the 
note and mortgage, for the use of the money. 

We need not inquire whether an agreement to that effect, 
had one been made, so unconscionable as it would have been, 



418 SUPERIOR COURT BBPORT& 

Johnson v. Miller et ««. 

ooald have been upheld. Without such agreemeot, we most 
apply to the case the general role of law, which ia, that a 
mortgagee in possesaion mast account for rents and profits. 
MeCarmack v. Dighy^ 8 Bladtf.^ 99. No such agreement is 
satisfactorily shown in this case. 

This subject is fully discussed, and the oases collected, in 
the Second Part of volume Two, Leading Cases in Equity, 
top page 430. We quote : ^ The mortgagor is not bound to 
account for rents and profits while he is in possession. CM* 
man v. Duke of Si. Albansy 3 FJri., 25 ; ez parUj IFSboii, 2 
V. 4* B.y 252. The mortgagee, however, must account from 
the time he takes possession, for the rents and profits of the 
mortgaged estate ; and he will be charged an occupation rent 
for any portion of it held by himself; Smart v. ButU^ 1 VenUt 
418; Trulock v. Robey^ 15 Sim^ 237, 265 ; and annual rents will 
be directed by the Court, if there be no interest due at the 
time he takes possession, and the annual rents exceed the 
amount of the annual interest payable on the mortgage, in 
order that the excess of rent may be applied in sinking the 
principal. Shepherd v. Elliott, 4 MaddL, 254 ; Goutd ▼. Tm- 
cred, 2 Atk., 533 ; and annual rents are directed in an account 
of occupation rent, as well as in an account of rents and 
profits received. Wilson v. Metcalfe, 1 jRti^f ., 530.** 

The judgment is affirmed. 



NoTK. — See Chitty on ContracUy mar, p. 292 ; HtUiard en Mortga^u, VoL 
1, Chap. 9. 



IN OBNEBAL TERM, 1873. 419 



Onenitreet «. NorrU. 



IN GENERAL TERM, 1873. 



Jason H. Orbbn8Tabbt, Appellanti v. John C. Norris. 

Contract — specific petforaumce — 

Practice — 

Plbadino. 

Defendant filed a general denial, also a ipeoial answer, denying oomplianoe 
of plaintiir with contract, and fkilojfe to pay, or tender the sum stipa- 
lated, and to execute notes for the balance of purchase money, within 
a reasonable time, or at any time; that before said suit, said property 
increased in value, and for that, and other reasons set forth, defendant 
rescinded, and set aside said alleged contract. Demurrer to this answer 
overruled, and judgment for defendant. PlaintilT appealed. 

HM: That this paragraph' amounts at least to the general denial, and if a 
special paragraph of answer amounting to the general denial is go6d 
on general demtirrer — which under our code all demurrers are— then 
the Court committed no error in overruling the demurrer. 

(Jnder the code if a special plea, amounting to the general issue, be pleaded 
with the general issue, objection should be taken to it by motion, not 
by demurrer. 

James Buchanan^ for appellant. 
Taylor^ Rand Sf Taylor^ for appellee. 

Perkins, J. — Complaint for specific performance. Judg- 
ment for defendant at Special Term. 

The case on appeal is this : 

On the 9th day of April, 1872, John H. Greenstreet, the 
plaintiff, addressed a letter to John C. Norris, the defendant, 
then at Cincinnati, Ohio, containing a proposition to par- 
chase a lot of his on Delaware street, Indianapolis. 



420 SUPERIOR COURT REPORTS. 

Qreenstreet v, Norrif. 

To this letter, Norris replied on the following day, April 
10, as follows : 

^ I received your letter wanting to know at what price, 
and on what terms, I would sell you my lot on Delaware 
street, in Indianapolis, and stating on what terms you would 
like to buy it I will sell it to you at sixty dollars (SQO) per 
foot, and give the terms you ask in your letter, and you can 
go to work as soon as you please. I will be up myself when 
Mrs. Suitor comes up. My daughter, Mrs. Thompson, died 
yesterday morning, and she (Mrs. Suitor) will not come up 
until everything is settled. 

Yours, &C., 

John C. Norris." 

The reply to this letter follows : 

<< Indianapolis, April 12, 1S72. 

John C. Norris^ Cincinnati : 

Your favor of the lOfh inst., received and noted. Your 
offer to sell me your Delaware street lot at sixty dollars pe^ 
front foot, five hundred dollars cash, balance on one, two, 
three and four years time, with six per cent interest (the 
terms proposed in his first letter) is accepted. I will con- 
sider, then, that the purchase is made, and will make my 
arrangements in accordance with this understanding. You 
can, by attaching the necessary papers, make sight draft on 
me for the cash payment, or this can be arranged when you 
come, as you prefer. 

John H. Grernstrbbt." 

The complaint avers that no reply was received to this 
letter, and no draft was sent; that Greenstreet took posses- 
sion of the lot and made improvements; that afterward 
Norris came to Indianapolis; that Greenstreet, tendered 
him the 8500, oflered to execute note and mortgage, in 
short, to fulfill his part of the contract, and demanded a 



"^ 



IN GENERAL TERRf, 1873. 421 



Greenstreet v. Norrb. 



deed, A&c, .bat Norris refased, A&c, and that he, plaintiff, is 
still ready, and offers, &c. 

To this complaint defendant, Norris, answered, the general 
denial, and, secondly, ^ that the said plaintiff did not comply 
with the terms of said alleged contract, aad failed to pay or 
tender said sum of money, and to execute notes for the said 
deferred payments, and to secare same by mortgage on said 
real estate, or otherwise, within a reasonable time, or at any 
time after making said alleged contract, and before said suit 
was brought; and s&id real estate advanced, and increased 
largely \n value, above and beyond the price said plaintiff 
proposed, and agreed to pay therefor, and for that reason, and 
on account of the matters aforesaid, this defendant did rescind, 
set aside, and abandon the said alleged contract, as he had 
full and lawful right to do ; and this he is ready to verify, 
wherefore, he demands judgment," &c. 

To this second paragraph of answer, a demurrer, assigning 
for cause insufficiency of facts to constitute a defense, was 
overruled, and exceptions taken. The cause was tried upon 
the general denial, and final judgment rendered for the 
defendant. 

This suit, it should be observed, was commenced on the 
17th day of May, 1872, a little over a month after the mak- 
ing of the contract ; and the refusal of Norris to make the 
deed was prior to that, and before any very great change in 
the value of the property could probably have occurred. 
Could that fact, if true, have had any legitimate influence 
in determining the case ? See LitUner v. PoUs^ 5 Black/. ^ 
896. 

The assignment of error in the record is, that *' the Court 
erred in overruling plaintiff's demurrer to the second para« 
graph of defendant's answer, to which ruling plaintiff at the 
time excepted." 

This paragraph amounts, at least, to the general denial ; 



4S2 8UPEEIOR COURT RBPOBTa 

- - 

GrMDftrMt «. Noirit. 

and if a special paragraph of answer, amounting to tbegeaenl 
denial, is good on general demurrer, wtiich, under tbe oode 
all demurrers are, then the Coart oommittod no enar in ovei^ 
mling the demarrer. At common law the point is unsettled, 
whether a special plea, amounting to general issoe, must be 
got rid of by demorrer, or motion. Siepkem am Pleadmg^ 
421 ; GaM on Pleadingly 4 Ed., p. 325, &c. 87; 1 CkiUy am 
Pleadmgy 62S. It would seem from thb latter auUior, that 
the objection might be taken by special demurrer; and if it 
required a special demurrer at common law, it would haye to 
be taken by motion under the code. In Estqi^ ▼• £!ilfp, 23£idL, 
114, the Court said that special demurrers are not contem- 
plate^ by the code, but motions are the substitute for them. 
See, also, FuUz v. Wpcoff, 25 /imL, 321. But the practice 
at common law had been settled in this State as early as 
1845. Jackson v. Yandis, 7 Bladrf^ 526. In Oraakshamk ▼. 
KeUc^g, 8 Blackf^ 256, the general issue was pleaded, and a 
special plea. Demarrer to the special plea. The Court, by 
Blackford, Justice : ^ The plea is substantially a bar to the 
action, not, however, because it shows the defendant to be 
justifiable in what he did, but because it shows that he did 
not commit the trespass alleged against him. It is bad in 
form as amounting to the general issue ; but it is not objected 
to on that ground, (which the Judge says in the syllabus 
should have been taken by motion). The demurrer, there- 
fore, should have been overruled." 

We cannot say, therefore, that the Court erred in the case 
at bar in overruling the demurrer. 

The judgment is affirmed. 



"\ 



Note. — ** It ia no objection to a plea that the matter of it may be gtven 
in evidence under the general issue. The right to plead ae many plees M 
defendant may deem neoeaaary for hif defense, is secured to him by statute. 
In so pleading, however, it is not his privilege to encumber the record with 
tautologous allegations, nor with pleaa^ which, while they pretend to be 



IN GENERAL TERM, 1873. 433 

Mazelin v. Martin. 

special, amoQnt only to a denial of the plaintiff*! allegation " * * * A 
plea amounting to the general issue, is a plea alleging matter which is, in 
effect, a denial of the whole, or the principal part of the allegations in the 
declaration." • • • 7Blaekf^Z2S, 

" There is a great difference between the case of a plea which amounts to 
the general issue, and a plea that discloses matter which may be given in 
evidence under the general issue ;" under the latter, various things may be 
g^ven in evidence, which may also be proved under the general issue, " but 
it is incorrect language to say that these things amount to the general issue 
they only defeat the contract ; but what, in correct language, may be said to 
amount to the general issue is, that fh>m some reason specially stated, the 
contract does not exist in the form in which it is alleged, and where that is 
the case, it is an argumentative denial of the contract, instead of being a direct 
denial ; and which, according to the correct rule of pleading, is not allowed." 
Lord Dennian in Hay$elden v. Staf, 6 Adol ^ EUiSy 153 ; see 22 Jnd^ 114 ; 
25 Jnd^ 821 ; SUphen on Pleading, 421 1 Qould on Pleading, 4 Ed^p. 825, 
Sec. 87 Chiiiy on Pleading, 528 ; 7 Blaekf., 626 ; 8 do. 256. 



IN GENERAL TERM, 1873. 



John B. Mazelin v. Lyman Martin, Appellant 

Promissory Note — extension of payment ; forbearance — 
Sheriff's Sale — purchasers at^ for what held — 
Assignment of Error — what necessary. 

A promissory note falling due May 1, 1872, was on that day endorsed. 
" This note extended until the first day of September, 1872, at 10 per 
cent, interest, the payment of the within note assumed by A." Signed 
A. 

11 



424 SUPERIOR COURT REPORTa 

Maaelin v. Martin. 

In a suit to recover on said agreement, A, the defendant, answered, that he 
indorsed the note as surety only, for the maker. 

Held: An answer that the contract was wholly executed without consider* 
ation as to him, A, is bad. 

Any loss, trouble, or disadvantage undergone by, or charge impoeed upon 
him to whom it is made, constitutes a good consideration. 

It is immaterial whether the party making the promise, in consideration of 
forbearance, has any direct interest in such indulgenoe, or will be bene- 
fited by the delay incident thereto. It is enough that he requests such 
forbearance, for the benefit to the debtor will be supposed to extend to 
the promissor. 

Purchasers of property at Sheriff's sale are not held for the value of the 
property, but for the amount bid. 

Assigning as error, matters which are only good as reasons for a new trial 
is useless, and presents no question for review. If such r«jasons arc 
embodied in a motion for a new trial, an assignment of «'rror in over* 
ruling the motion, is all that is neceesary to present the question. 

George Carter, for appellee. 

Blair, J. — The complaint in this case shows that one 
Henry Graves made certain promissory notes to John M. 
and Mary Ross, and also made a mortgage to secure the 
payment of the same. The note of the series last to become 
due, was assigned by the payees to the plaintiff before it 
became due. It become due on the first day of May, 1872. 
At that date the following indorsement was made thereon 
by the defendant: 

" This note extended until the first day of September, 
1872, at 10 per cent, interest, the payment of the within 
note assumed by Lyman Martin. 

Signed, Lyman Martin." 

Upon this agreement to assume the payment of the note, 
the plaintiff seeks to recover of the defendant. 

A demurrer to the complaint was overruled, and this rul- 
ing is assigned as error. This point is not urged in the brief 
of appellant, and we see no objection to the complaint 

An answer in four paragraphs was then filed, to the last 




IN GENERAL TERM, 1878. 425 



Mazelin v MartiD. 

three of which, (the first being a general denial) demurren 
were sustained. 

In the second paragraph of answer, it is alleged by the 
defendant that he endorsed the note as surety only, for the 
maker. 

This was an attempt to contradict, and vary the express 
terms of the agreement signed by the defendant, and hence 
was bad. 

In a third paragraph he says the contract ^ was executed 
wholly without consideration as to him, said defendant" 

The latter words, ^' as to him, said defendant," so limit the 
meaning of the plea, that it is not a good answer. ^ Any 
benefit accruing to him who makes the promise, or any loss, 
trouble, or disadvantage undergone by, or charge imposed 
upon, him to whom it is made," will constitute a good con- 
sideration. BurriWs Law Dictionary j tit. — Consideration ; 
Smith on Contracts, 87, 88. 

Again, in 1 Parsons* on Contracts, 443, the author says in 
reference to forbearance, '' It is not material that the party, 
who makes the promise in consideration of such forbearance, 
should have a direct interest in the suit to be forborne, or be 
directly benefited by the delay." It is enough that be 
requests such forbearance ; for the benefit to the debtor will 
be supposed to extend to the promissor. 

The fourth paragraph of answer alleges, that the notes fall- 
ing due prior to the one in suit, all of which were secured 
by a mortgage of certain real estate, were put in suit, and a 
decree of foreclosure rendered, and the mortgaged property 
sold at Sheriff's sale to satisfy said notes, and the plaintiff, 
with one Henry Graves, and other parties, unknown to the 
defendant, did conspire to cheat and defraud the defendant, 
and purchased the real estate at the Sberiflf's sale for twenty- 
two hundred dollars, less than its reasonable market value, 
and, in pursuance of such conspiracy, induced the defendant 



426 SUPERIOR COURT RBPORTSu 



to indorse the note as charged in the complaint, for tlie pur- 
pose of releasing GraTca, the maker of the note, and to 
release the mortgaged property. 

The answer in no war impeaches die regnluity, mnd ralid- 
ity of the foreclosure proceedings, and sale bj ttie Sheriff^ 
nor did the contract of the defendant rdeaae either the mort- 
gage secority, or the maker of the note. Pnrehaaers of prop- 
erty at a Sheriff's sale, are not held for the value of the prop- 
erty, hot for the amount bid. The answer does not, therefore, 
allege facts from which fraud can be infened, and the mling 
on demurrer was right. 

On the trial of the cause, judgment was rendered against 
the defendant, and a motion for a new trial was overruled. 

The ruling upon this motion b not assigned as error. 

Assigning as errors, matters which are only good as rea- 
sons in support of a motion for a new trial, is useless, and 
presents no question for review. If such reasons are embod- 
ied in a motion for a new trial, an assignment of error in 
overruling the motion, is all that is necessary to present the 
questions. 

The judgment is affirmed. 




IN GENERAL TERM, 1873. 427 



BaTicbon r. Wildman. 



IN GENERAL TERM, 1873. 



Thomas F. Davidson t;. James A. Wildman, Auditor of State. 

The act of March 10, 1878, increasing the salariea of Circuit Judges from 
$2,000 to $2,500, and repealing all laws in conflict therewith, which 
went into effect upon its passage, gave to said Judges the increased 
salary for the quarter ending March 81, 1878. 

It is competent for the Legislature to flx the amount that should thereafter 
be paid for past services as well as for fbture services. The act of 
March 10, in repealing the old law, loft no other law in force by 
which these salaries could be paid. 

Blair, J. — The plaintiff is the Judge of the 21st Judicial 
Circuit of the State of Indiana, and as such judge, claims 
that he was on the first day of April last, entitled to be paid 
the full amount of the quarterly payment of the annual 
salary allowed him as such judge by the act of March 10, 
1873. Prior to the act of March 10, the salary of Circuit 
Judges was two thousand dollars per annum, payable quar- 
terly. On that day the salary was fixed at two thousand 
five hundred dollars, payable in like manner, and the 5th 
section of the act repealed '* All acts, and parts of acts now 
in force, allowing any other or different compensation to such 
judges." On the first day of April following the passage of 
this act, the plaintiff's quarterly payment of salary became 
due, and payable. It is claimed by the defendant that the 
amount then to be paid plaintiff should be estimated on the 
basis of two thousand dollars per annum up to the 10th day 
of March, and that thereafter it should be estimated accord- 
ing to the last act at twenty-five hundred dollars per annum. 



428 SUPERIOR COURT REPORTS. 

Davidfton v. Wildman. 

We regard the position of the defendant as untenable. An 
annual salary is a fixed sum to be paid by the year, or at 
such stated periods less than a year, as may be fixed bylaw; 
as in this ease to be paid quarterly. The plaintiff bad been 
rendering services from the first day of January to the first 
day of April, 1873, for which period he had received no com- 
pensation. Before the day of payment arrived, the Legisia- 
ture fixed the amount to be paid on the first day of April at 
the rate of twcniy-five hundred dollars per annum, or six 
hundred and twenty«five dollars for the quarter, and repealed 
all laws allowing ^ any other or different compensation." If 
the plaintiff had been paid in advance for his services, the 
question would have been different; but not having been 
paid, it was competent for the Legislature to fix the amount 
that should thereafter be paid, for past services as well as 
for future services, and as the old law was repealed before 
the time of payment arrived, there was no law in force gov- 
erning the amount to be paid, except the act of March 10, 
1873, and under the provisions of that act he was entitled to 
receive the full amount of the quarterly payment, viz : Six 
hundred and twenty-five dollars. We are further strength- 
ened in this view, that the Legislature by the 44th section of 
the act making general appropriations, which was passed on 
the same day with the act fixing the salaries of Circuit 
Judges, appropriated the same amounts for each of the years 
1873 and 1874, to be applied to the payment of the salaries 
of the Circuit Judges, ^^at two thousand five hundred dollars 
each." This section sets apart and appropriates to each of 
the Circuit Judges who serve for the entire year 1873, the 
sum of 82,500. Acts of 1873, page 9. 

We are, therefore, clearly of the opinion, that the action of 
the Court at Special Term was right, and that the plaintif! 
was entitled to have his warrant drawn on the first day of 
April for the sum of six hundred and twenty-five dollars. 

Judgment affirmed. 



IN GENERAL TERM, 1873. 429 



DeMauer v. Baker. 



IN GENERAL TERM. 1873. 



Lee Dessauer i;. T. Baker, Appellant. 
Inn-keeper — liability of. 

In an action to recover the value of a watch, and other articles of property 
lost while a guest at a hotel. 

Meld: That though an innkeeper may exonorate himself from liability 
for the loss of goods of his guests, by showing that the loss occurred 
without any fault or neglect of himself, or servants, or by negligent 
conduct of the plaintiff, he must, nevertheless, be held to answer, and 
is responsible for the conduct of another guest placed in a room already 
occupied, without the consent of the occupant, and recovery may be 
had for the value of property so lost. 

Ray 4* Tarkington^ for appellant. 
Leathers^ for appellee. 

Perkins, J. — Suit by a guest against an inn-keeper, upon 
his common law liability as such. 

Judgment at Special Term against the defendant. 

The case is this : On the third of February, 1873, between 
the hours of 7 and 8 o'clock p. m., Dessauer, the plaintiff, 
stopped at the Mason House, a hotel in Indianapolis, kept 
by the defendant, Baker, registered his name, and asked for 
a room by himself. The clerk responded that no such room 
could be furnished him, but that he could have a bed in room 
No. 59, a room in which there were three beds, one of which 
was already taken by a Mr. Underwood, and that no other 
person except Underwood, and himself should be put into the 



430 SUPERIOR COURT REPORTS. 

t^^^^^ ^^ _M _ I ^m m ■ ■ I ^1 II 

Dessauer v. Baker. 

room that night Thereupon the plaintiff consented to, and 
did occupy a bed in room No. 59. He went into the room 
about ten o'clock in the evening. Mr. Underwood wa» then 
in the room. On entering, the door was fastened by a bolt 
on the inside. The plaintiff and Underwood retired, each to 
a separate bed. A stove was in the middle of the room, 
with one of the beds on one side of it, one on the opposite 
side, and the third bed at the foot of the latter. Underwood 
took the bed that stood alone upon one side of the room. 
The plaintiff took the one opposite, and the third, the vacant 
bed, stood at the foot of the one occupied by the plaintiff. 
On retiring, the plaintiff laid a part of his clothes on the 
vacant bed, and hung up a part near it His watch was in 
his vest pocket, and his pocket book, with a few dollars in 
money, and a one-thousand-mile railroad ticket, &c., in it, was 
in one of his pantaloon pockets. About twelve o'clock, in 
the night, a stranger, without baggage, came to the hotel, 
registered by the name of Allen, paid for lodging and break- 
fast, and was sent by the clerk, under the guidance of a por- 
ter, to room 59. Underwood arose, unbolted the door, let him 
in, and then re-bolted the door. The plaintifi was not suffi* 
ciently awakened to become aware of the fact of Allen's 
entrance. Allen, before going to bed, removed the plaintiff's 
clothes from the vacant bed to a chair. About five o'clock 
in the morning Allen arose and disappeared from the 
hotel. 

Underwood heard a noise in the room in the latter part of 
the night, but does not know who, or what caused it About 
two hours after the exit of Allen, Underwood, and the plain- 
tiff got up and, dressed. Underwood had lost nothing. The 
plaintiff's, pockets had been relieved of his watch, money, 
ticket, &c. The usual watch had been kept in the hotel 
during the night. Nothing further as to the robbery is dis* 
closed. 



IN GENERAL TERM, 1873. 431 

Dessauer v. Baker. 

On the above facts, did the Court at Special Term err in 
finding against the defendant? On the facts stated, no con- 
elusion could be drawn other than that the loss occurred by 
the act of a servant or guest, probably a guest, at the inn. 

In the 23 Vt, 177, {Merritt v. Clag/iom) the Court by 
Judge Redfield, says: 

^*' The ho:<t is, we apprehend, upon principles of reason 
and justice, always liable for any acts of his servants, or 
guests. He employs such servants as he chooses, and is 
bound to take every quiet, and orderly guest which offers, 
and if he takes others, even in good faith, it ought not to be 
at the risk of his other guests, who derive no profit and have 
no concern whatever in their being there. In holding an 
innkeeper liable to this extent, all opinions concur. It is 
here the discrepancy begins." And in McDaniels v. Robin- 
son^ 26 Vt.yp. 316, the same Court, by the same learned judge^ 
says: 

^' The inn-keeper is liable for goods stolen from any part 
of his house, unless he expressly limit his responsibility, and 
this is assented to by the guest. (Richmond v. Smith, 15 
JEnfi^, Com. Law Rep. 144). He is responsible for money 
belonging to his guests ; (Kent v. Shuckard, 22 E. C. L. R.i 
388), and he is responsible for the acts of every one within 
his house, unless introduced by the guest, as all the cases 
agrees. ( Townsen v. The Havre de Grace Bank, 6 Harr. Sf 
Johnson, 47)." 

The case last quoted from is one of those cited in Laird 
V. Eichold, 10 Ind., 212, as being in harmony with the views 
of the Court in that case. See Huntington v. Drake, 24 
Ind., 347. See, also, Gik v. Libby, 36 Barb., (N. Y.) 70, a 
case more nearly like that at bar than any we have met 
with. It holds the absolute liability of the host for rob- 
beries, or larcenies committed by his servants, and guests 
upon guests. But it is not necessary, in this case, that we 



SUPERIOR CODRT EBPORTS. 



De«uuer v. Baker. 



ahould, and we do not decide, that the liability of the host 
extends that far. That he is prima facie liable, and caa 
relieve himself only by showing that the loss did not happen 
through any default nf himself, or his servants, in the absence 
of negligence on the part of the injured guest, there is no 
dbnbt 

In this case, we think the host, through his servants, was 
at fault, in this; that the guest robbed, was told that no per> 
eon woald be put into room 59, to occupy the third, the 
vacant bed therein. This assurance occasioned the plaintiff 
to be less careful in the disposition for the night of tha 
articles of property placed in the pockets of his clothes, than 
be otherwise might have been, indeed, to deposit his clothes, 
with the articles in the pockets, upon that bed, so that when, 
without any notice, and while the plaintiff was asleep, a 
third person was given that bed, those articles were exposed 
to hia observation, made a temptation to him, and easy of 
appropriation. 

The defendant objected, on the trial at Special Temi, tQ 
any evidence of this assurance, on the part of the clerk of 
the hotel, that no person should be put into the room to 
occupy the third bed. He claimed that it was a special con- 
tract, not set out, or relied upon in the pleadings by either 
party. But we think it was properly admissible, as account- 
ing for the possible want of care on the part of the plaintiff 
in securing for the night the property he lost, and the fault, 
not to say bad faith of the defendant, by which that want of 
care was induced. 

The issuea in the cause involved the question of negli- 
gence ill both parties. 

The judgment at Special Term is affirmed. 



IN GENERAL TERM, 1873. 433 



Thurston i?. Boardman, and Coulon. 



IN GENERAL TERM, 1873. 



RoLLAND E. Thurston, Appellant, v. Omer B. Boardman 

AND Charles G. Coulon. 

Constable — lev^ by — 
Execution — levy under — 
Judgment — 
Venue — charge of. 

Where a constable, in answer to a complaint in replevin, pleads that he 
levied upon the property, as the property of the plaintiff, to satisfy an 
execution issued upon a judgment rendered before a Justice of the Peace 
against the plaintiff, the execution upon which the levy is made is not 
a written instrument within the meaning of the statute requiring such 
to be filed with the pleadings. It is but evidence of the facts alleged 
in the answer, and need not be made a part of the answer. 

When property has been levied upon, but not sold, and the time for com- 
pleting the return upon an execution has not arrived, and the execu- 
tion is still in the hands of the constable, no objection can be taken to 
the validity of the levy, because the return was not signed by the Con- 
stable. 

If a constable holds an execution, legal on its &ce in all respects, it is suffi- 
cient to authorize a levy, and to justify such levy, it is not necessary 
for the constable to allege that the Justice of the Peace, who rendered 
the judgment, had jurisdiction of the cause wherein the judgment was 
rendered. 

Where a Court has jurisdiction of the person and of the subject matter of 
the action, the defendant cannot stand by, and see a judgment rendered 
against himself^ and an execution proper and legal in form issued upon 
the judgment, and after it has been levied upon his property, attempt 
by an action of replevin, to have another Court sit for the correction 
of errors, and reverse the proceedings of the Court that rendered the 
judgment. 



^ 



434 SUPERIOR COURT REPORTa 

Thurston v Boardman, and Coalon. 

The Talidity of a judgment cannot be enquired into in this collateral 

way. 
If a judgment is invalid or void, a party has his remedy by appeal, or 

other direct proceeding. 
Applications for a change of venue cannot be repeated without some special 

cause. 

Blaib, J. — This is an action to recover the possession of 
certain articles of personal property. 

In addition to the general denial, the defendants answered 
admitting the taking of the property, hot alleging that the 
defendant, Boardman, is a Constabl^ of Marion county, and 
the defendant, Coulon, is his deputy, and that the property 
was levied upon as the property of the plaintiff by virtue of 
an execution in favor of the State of Indiana, and against 
the plaintiff, which was issued by one Schmitts, a Justice of 
the Peace of Marion county, to satisfy a judgment rendered 
by said Justice in a cause wherein the State of Indiana was 
plaintiff, and the plaintiff herein was defendant. 

A copy of the execution is filed with the answer. 

A demurrer was overruled to this answer, and the proper 
exception having been taken, this ruling presents the first 
question for consideration. It is urged that the answer does 
not show a justification for the levy, and taking of the prop- 
erty, because the return upon the execution is not signed by 
the constable. 

This question is not raised by the demurrer for two rea* 
sons. First, the execution is not properly a part of the 
answer. It is not a written instrument within the meaning 
of the statute requiring such, to be filed with the pleadings. 
It is but evidence of the facts alleged in the answer, and 
need not have been made a part of the answer. Ijytle v. 
Lplle et al.j 37 Ind,, 281. Secondly, the execution does not 
purport to have been returned. The property was only levied 
upon, not sold, and the time for completing, and signing the 
return had not arrived. 



IN GENERAL TERM, 1873. 435 

Thurston v. Boardman, and Coulon. 

The next objection is, that the execution is directed to 
" any Constable of Marion county." 

This direction is, as required by the express terms of the 
' Statute. 2 G. 4- H, p. 601, Sec. 72. 

It is again urged that the answer is bad because it fails to 
show that the Justice had jurisdiction of the cause wherein 
the judgment was rendered, upon which the execution issued. 

This averment was not necessary. If the constable had 
an execution legal upon its face in all respects, it was suffi- 
cient to authorize a levy. Gott v. Mitchell^ 7 Blackf.y 270. 

The plaintiff filed a reply to this answer, the substance of 
which is, that before the trial of the cause in which the judg- 
ment was rendered, he filed an affidavit for a change of venue 
from the Justice, on account of his prejudice, interest, and 
bias against the plaintiff; that the Justice overruled the 
motion for a change of venue, and tried the cause ; where- 
fore he says that after the filing of the affidavit the Jus- 
tice had no jurisdiction, and the judgment, and execution 
are void. A copy of the proceedings before the Justice is 
filed with the reply. 

A demurrer was sut^tained to this reply ; and this is the 
next error assigned. The ruling upon this demurrer was 
right. 

It is not denied but that the Court had jurisdiction of the 
person of the plaintiff, and of the offence against the State, 
with which the plaintiff was charged, and under such cir- 
cum:«tances it is not for the plaintiflf to stand by, and see 
a judgment rendered against himself, and an execution 
issued upon the judgment, proper, and legal in form, and 
after it has been levied upon his property, attempt, by an 
action of replevin, to have another Court sit for the correc- 
tion of errors, and reverse the proceedings of the Court that 
rendered the judgment 

The validity of the judgment cannot be inquired into in 
this way. Spaulding and others v. Baldwin^ 31 Ind.^ 2n%. 



436 SUPERIOR COURT REPORTS. 



Thurston v. Boardman, and Coulon. 



The transcript from the docket of the justice, does not 
contain the affidavit that was filed for a change of venue, 
but it shows that after a jury was summoned to try the 
cause, and after they were brought into Court, at the instance 
of the defendant, the affidavit, and motion for a change of 
venue was filed. The motion was overruled, and the tran- 
script recites the following as a reason therefor: ^it being 
evident to this Court, and fully shown by the affidavit, the 
defendant herein filed as a plea in bar, that said defendant 
has heretofore, at three different justices, pursued the same 
course of filing affidavits for a change of venue, as it seems 
to this Court, with the avowed purpose of defeating the laws 
of the State.-' It further appears from the transcript, that 
the jury was sworn to try the cause, ^ and the defendant 
having been arraigned for plea, and he being mute, and indif- 
ferent to his case," trial was had. If necessary for a decis- 
ion of the questions before us, we would say, that if the 
facts are recited correctly in the transcript, the Justice was 
right in refusing the change of venue ; for it would appear 
that the defendant was only trifling with the Court If there 
is to be no end to the granting of changes of venue, crim- 
inals could escape punishment 

Applications for a change of venue cannot be repeated 
without some special cause. Millison v. Holmes^ 1 iSidL, 45. 

If the judgment is invalid, or void, the defendant had his 
remedy by appeal, or possibly he may have had a remedy 
other than by appeal, but we are clear that his reply in this 
case was bad. 

Judgment affirmed. 



IN GENERAL TERM, 1873. 437 



Seitz V. Schmidt. 



IN GENERAL TERM, 1873. 



Christina Seitz i;. John George Schmidt, Appellant. 

Pleading — amended — 
Errors. 

A subsequent pleading, covering the entire ground of action, or defense, 
contained in the prior pleadings, will be regarded as substituted forsuch 
prior pleadings, which are not to be certified by the Clerk to the Appel- 
late Court. 

Errors alleged to have occurred on the trial below, cannot be corrected on 
appeal; the authority of the Court below hearing the cause, shall first 
be sought before resorting to an Appellate Court. 

Milner^ for appellant 

Leathers Sf Harvey^ for appellee. 

Perkins, J.— On the 2l8t of May, 1873, the plaintiff filed 
her complaint against George Schmidt, and Nicholas R. 
Ruckle. 

She alleges in that complaint that on the 24th of October, 
1867, Schmidt obtained a judgment in the Marion Court of 
Common Pleas, against Frederick Seitz, her husband, for 
four hundred and forty three dollars and sixty-six cents and 
costs, &c. ; that about two years afterward she became, and 
still continued to be, the owner in fee simple in her own 
right, of a certain piece of real estate (particularly describe 
ing it) — that Schmidt afterward caused an execution to be 
issued on the judgment above named against her husband, 
and to be levied upon the said described property of the 



438 SUPERIOR COURT REPORTS. 

Seitz vi Schmidt. 

plaintiff, and on the 7th of Decembefi 1872| cansed the same 
to be 8old by Sheriff Ruckle, as the property of her husband, 
Frederick Seitz, said Sheriff delivering a certificate of sale 
to the purchaser, &c. She prays that said sale, Am^, be 
decreed to be null, Ace., and the cloud removed from faer title. 

On the 4th of June, Ruckle filed a disdaimer. 

On the 5th Schmidt filed a demurrer to the complaint, 
which was overruled. 

On the 9th, Schmidt filed answer to which there was a 
rule to reply. 

On the 16th of June, defendant filed a second paragraph 
of complaint, which was amended on the 18th. 

This second paragrfiph of complaint alleges all the facts 
stated in the first paragraph, with dates, amounts, &c., and 
also alleges the further fact, that on the 23d of November, 
1871, said Schmidt instituted suit in the Marion Civil Cir^ 
cuit Court, to subject the property of the said plaintiff Chris- 
tina Seitz, described in the first, and also in the second para- 
graph of the complaint, in this suit, to the payment of said 
judgment against her husband, which suit was tried, and 
judgment therein rendered against said Schmidt on the 24th 
of October, 1872, a transcript of which judgment is made a 
part of said second paragraph of complaint, which para- 
graph contains the same prayer for relief as did the first 
paragraph. 

On the 21st of June, a demurrer was filed to this second 
paragraph of complaint, which was overruled on the 5th of 
July. 

On the 7th of July, defendant Schmidt, elected to stand 
by his demurrer to said second paragraph, and thereupon the 
Court proceeded to render final judgment, and decree in the 
case against him. 

No exception was taken to this proceeding of the Court, 
and no motion was made at Special Term to set it aside, 



i 



IN GENERAL TERM, 1873. 439 

Seitz V. Schmidt. 

and no steps were taken to procure a trial, or judgment on 
the first paragraph of complaint. No motion was made for 
judgment for want of a reply. The defendant afterwards 
appealed to General Term. 
He assigns for errors : 

1. The overruling the demurrer to the first paragraph of 
complaint. . 

2. The overruling the demurrer to the second paragraph 
of complaint. 

3. The rendering final judgment in the cause while the 
answer of defendant, Schmidt, to the first paragraph of com- 
plaint, was unreplied to. 

Section 559, p. 273, 2 G. & H., contains this provision : 
<' Neither shall the Clerk certify any pleading first filed, when 
there is an amended pleading of the same matter subse 
quently filed, embracing all the pleading first filed, and the 
amendments thereto; but shall certify such amended plead- 
ing only. Every paper and pleading above excepted, may 
be made part of the record by exceptions, or order of the 
Court, on motion. 

This provision rests upon the theory that a subsequent 
pleading, containing the entire ground of action or defense 
contained in the prior, shall be regarded as substituted for prior 
pleadings, attempting to set forth such ground of action or 
defense. This case falls within this provision. The so-called 
second paragraph was really, and plainly understood to be, a 
substituted complaint. This disposes of the first, and third 
assignments of error, and as to the second, we think the 
demurrer to the second paragraph, so called, was rightly 
overruled. 

Another rule of practice also would preclude a reversal of 
this cause. As we have stated, no exception was taken, or 
objection made to the action of the Court at Special Term, 
in rendering the final decree that was entered, and the Court 

12 



440 SUPERIOR COURT REPORTa 



Seitz V. Schmidt 

was not asked to correct its errors, if errors were, in fact, 
committed. 

In Harlan v. EdwardSy 13 Ind.^ 430, it is said, ^ the author- 
ity of the Court below should first be invoked (to correct 
such errors) before resorting to an appeal." 

So in Black ▼. Jackson^ 17 IndLy 13, it is said, ^ errors in 
the amount, and form of the assessment, and judgment are 
complained of, but the record does not show any attempt to be 
relieved therefrom, in the Court below, and therefore we can- 
not consider the questions made relative thereto. In 25 Ind^ 
510, such is declared to be the long, established practice. 

In Cochnower v. Cochnowery 27 /ndl, 253, this rule of prao- 
tice is recognized as a general one, but divorce cases are 
made an exception. 

There is no hardship, and need be no loss of right in 
requiring a party to first apply to the nUi prius Court to cor- 
rect errors, in such cases as this, and cases of default, &c., 
before resorting to an appellate court Skeen v. HufUingtonj 
25 Ind., 510. 

If the defendant sustained any injury in this case, it was 
caused by his own fault, and negligence., 

Judgment affirmed. 




IN GENERAL TERM, 1873. 441 



Dawson et al, v. Broiue et aL 



IN GENERAL TERM, 1873. 



Thomas E. Dawson et al. v. Maboarbt C. Brousb bt al. 
Injunction — unll not lUj against public safety. 

Where a building has become unfit and unsafe for occupancy, bj reason of 
fire, or inherent defects, making it dangerous in its condition, the fiu^ 
of a tenant holding an unexpired term of a lease will not restrain the 
owner, by an injunction, from taking down the walls, and reconstruct- 
ing the building, in such manner as he may deem best to secure safety, 
and permanency. 

Byfield tf Howe^ for appellants. 
TroQcellj for appellees. 

Blair, J. — ^^ This was an action for an injunction. The 
plaintiffs allege in their complaint that the defendants, Mar- 
garet C. Brouse, Annie B. Manlove, and Abbie L. Pearce, being 
the owners of certain real estate in the city of Indianapolis, 
upon which was situated a three-story brick l^uilding^" ^ and 
a one-story building a part of, and annexed to, and iramedi- 
ately south of said main building,"— did, on the 29th day of 
November, 1872, lease to the plaintiffs, by a written lease, 
rooms numbered, 87 and 89 of said building, being rooms 
^ upon the ground floor of the main building, and also the 
one-story building aforesaid, together with the cellar-ways 
underneath, for the term of three years from the first day of 
I>ecember, 1872 ; that the plaintif& are in the possession and 
occupancy of the same ; that the defendants are about to tear 



442 SUPERIOR COURT REPORTS. 



Dftwson eimLv, Broose et aL 



the same down, demolish the building, and disposess the plain* 
tiffs, and are threatening, and making preparations for the same, 
&c ; wherefore they ask that the defendants may be enjoined 
from tearing the building down, or in any way disturbing 
the possession of the plaintiffs.'' 

The defendants answered in two paragraphs, the first being 
a general denial. To the second paragraph a demurrer of 
the plaintiffs was overruled, and this ruling is assigned as 
error. 

This paragraph contains much that does not add to its 
force or legal effect; much that must be regarded as mere sa^ 
plusage. The substance of all the material allegations is 
that by reason of defects in the original construction of the 
building, of which defects the plaintiffs had no knowledge, 
the walls became insecure, the front, and rear walls bulging out- 
ward, breaking their connection with the partition walls, and 
the partition, and other walls, cracked to such an extent as 
greatly to impair the safety of the entire building, and after- 
wards, without the fault of the defendants, a fire broke out 
in the uppermost story of the main building, and destroyed 
the roof and its supports, and by reason of the fire, and the 
use of water in extinguishing it, the building was rendered 
less secure than it had previously been, rendering it incapable 
of being made secure by any repairs that could be made, 
hence the defendants contemplate tearing it down, and claim 
the right so to do, &c. The building is shown in other parts 
of the answer to have been erected in a business part of the 
city, to be occupied for business purposes. 

It is objected in the first place that the answer does not 
meet that part of the complaint which includes the one story 
building in the rear, and hence only answers a part of the 
complaint. 

The complaint says the rooms rented '^ include the ground 
floor of the main building, and the one-story building,'* 



W 



IN GENERAL TERM, 1873. 443 

Dawson et al v, Brouae et al. 

and, as they rented bat two rooms, we infer from the com- 
plaint that they run back from the front to the rear of the 
one-story building, and the occupancy of either of the rooms 
in the main building, included the extension of the same 
rooms in the one-story building, and that taking down the 
walls of one rendered the other useless. The complaint does 
not show that the portion of the rooms in the one-story 
building can be used without those in the main building, but 
on the contrary leads us to infer that they cannot be so used. 
Under these circumstances they have no right to complain of 
the answer in the above respect. 

When a building is located in a city, on a business street, 
and the building is to be occupied for business, and other 
purposes, and the walls have become insecure and danger- 
ous from defects in the construction, or from the effects of 
fire, it is certainly right that the walls should be taken down. 
Safety to the public, safety to those persons who may fre- 
quent the building, and its vicinity require a reasonable care 
in this respect The right to enforce the repair, or taking 
down of such walls, is one that may be exercised by muni- 
cipal, or other public authorities, and is so manifestly for the 
interests, and safety of the public, that individual interests, 
and claims must yield to the claims of the public. If the 
walls have become insecure, and endanger the occupants of 
the building, or the passers-by upon the street, if they are so 
insecure that danger may reasonably be apprehended, it is 
the duty of the owners to make them secure, and their only 
assurance of immunity from probable loss, and damage by 
actions for injuries to the life, or property of othera, in case 
of the walls or floors giving way, lies in acting promptly 
and efficiently in removing the danger. 

We are, therefore, of opinion that the answer was suffi- 
cient. 

Upon issues being joined upon the answer, the cause was 



444 SUPERIOR COURT REPORTS. 



i 



Lawson ei a/, v, Brousa et oL 



tried, the Court, at the request of the plaintif&i making a 
special finding of facts, and conclusions of law. Jadgnient 
was rendered refusing the injunction, and dismissing the com- 
plaint The plaintiflb have appealed, and the next, and only 
remaining error assigned, is, error in the conclusions of law. 

We do not deem it necessary to set out the entire finding 
of facts. 

Those in reference to the condition of the building are 
substantially as follows : 

The fire in the month of April, 1873, left the whole block 
unfit for occupancy, or business purposes; the roof was so 
injured as to afibrd but slight, if any, protection from raiui 
and the continued occupancy, or use of the rooois, was 
impracticable without a new roof. 

^ That after said fire a part of the walls of said building, 
in consequence of originally defective construction, or as a 
result of said fire, or from both causes combined, were so 
cracked, and bulged as to be unsafe, and said building could 
not be sufficiently repaired by replacing the roof, and other 
parts of the wood- work injured by the fire. The south wall 
of the main building was, and is, badly cracked above the 
first story, and between that and the third story, and is one 
and three quarter inches out of line, or plumb. The east 
wall has a breach in the south, and in the second story ; the 
north wall is a little, but not much out of a vertical line * 
the four brick partition walls, running north and south from 
bottom of the cellar to the floor of the third story are broken 
loose from the north and south walls above the first storjf 
and give the latter no strength, or support, above said first 
story; and the south cellar wall was pooriy constructed 
owing to defective mortar used in it, or from the mortar 
being frozen during the building of said wall ; but said cellar 
Wall would support a new wall built upon it for a period 
longer than the continuance of plaintifis' lease, but it is not 



( 



IN GENERAL TERM, 1873. 445 

Lvnon ettU,v. Brouse et aL 

strong enough to sustain a good upper wall as long as such 
a wall ought reasonably to stand." 

Other findings show that the building could be repaired so 
as to be reasonably safe for a period longer than the residue 
of the term of the plaintiffs' lease, " by taking the south wall 
down to the top of the first story," and the south ends of all 
the partition walls, and rebuilding them properly, and by 
securing the north wall with iron anchor to the partition walls 
and to the joists, and putting on a new roof, and repairing 
the plastering ; but with such repairs the building would not 
be " as good, nor as permanent or safe in character as a new 
building properly constructed would be. That such repairs 
would cost 93500, or 94000 ; and the annual rental value of 
the building prior to the fire, was three thousand six hundred 
dollars." 

That the building is located on a part of Market street 
devoted to business, and that the present building has the 
public reputation of being unsafe, and it will be to the inter- 
ests of the defendants to replace the building wholly by a 
new one, '^ because of the impracticability of making a per- 
manently safe and substantial building out of the present 
structure. That it would be to the pecuniary interests of the 
plaintiffs to have it speedily repaired, that for other rooms of 
like dimensions, and suitable for their business, they would 
now have to pay an increased rent, but the damages they 
would sustain by being compelled to remove would not be 
irreparable, but might be compensated in damages, if their 
legal rights are violated by the acts of the defendants in 
demolishing the present structure." 

These findings fully sustain all the material allegations of 
the answer. Indeed, they make a stronger case for the 
defendants, than the allegations of the answer. They show 
the condition of the building to be such that for the time 
being it is unfit for occupancy ; that in no event can it be 



446 SUPERIOR COURT REPORTS. 

LawBon et al r. Brouse ei aL 

made reasonably safe, without taking down the entire rear 
wall to the top of the first story, and the south end of the 
partition walls down to the same level, and rebuilding the 
same. Even with these repairs, and others which are also 
found to be necessary, the building would only be reason- 
ably secure for a period longer than the remaining term of 
the plaintiffs, and not as long as such a building ought 
reasonably to stand, and that a permanently safe, and sub- 
stantial building cannot be made out of the present struc- 
ture. To make the repairs would necessarily occupy almost 
as much time as to take the walls down, and rebuild. At 
most, the difference in time could not seriously affect the 
rights of the plaintiffs, and during such time, if either course 
is pursued, the rooms are unfit for occupancy. If the posi- 
tion assumed by the plaintiffs is correct, the defendants will 
be compelled to repair the building as best they can, still 
leaving it with inherent defects, that in a few years at most, 
would render it again unsafe. During this period the defend- 
ants would have full knowledge of these inherent defects, 
and that it was only " reasonably safe," and that this moder- 
ate degree of safety, would only last for an uncertain time, 
and might terminate in a disastrous fall of the building, or 
some portions of it, when least expected. 

This would be compelling the defendants to assume an 
unreasonable risk in maintaining a structure which they know 
to have defects rendering its safety to the occupants and the 
public, very questionable. Under these circumstances, we 
believe the defendants should not be prevented from recon- 
structing the building, so that permanent safety can be 
secured. 

It is true that the term of the plaintiffs' lease has not 
expired, and they yet have possession, but that they should 
persist in remaining in a building whose walls are raanfestly 
unsafe, both to themselves, and the public, so as to prevent 
the owners from making it safe, is unreasonable. 



I 



IN GENERAL TERM, 1873. 447 

Jordan v. Helwig ei tU, 

The decision of this cause settles nothing as to the cov- 
enants, or conditions of the lease, held by the plaintiffs. 

We simply hold that the building, having become unfit 
and unsafe to be occupied, the Court will not, on the appli- 
cation of a tenant holding an unexpired term, of a lease, 
restrain the landlord by an injunction, from taking down the 
walls, and reconstructing the building in such manner as he 
may deem best to secure safety, and permanency. 

No fact is alleged in the complaint, or found to exist, 
indicating that the plaintiffs will suffer irreparable damage 
by the threatened action of the defendants. On the contrary, 
it is found that they can be compensated, and that before the 
suit was commenced, they offered to accept a sum of money 
as compensation. On this ground alone,* the conclusions of 
law would be well and fully sustained. 

Judgment afl^med. 



IN GENERAL TERM, 1873, 



John Jordan v. Charles Helwig et al.. Appellants. 

Nuisance — liability for — 
Common Council. 

The Common Council cannot, by granting a building permit, thereby 
authorize the erection of a building, to the injury of person, or 
property. 



448 SUPERIOR COURT REPORTS. 



Jordan v, Helwig ei al. 



One who erecto » nuiBanoe ii liable for iti continuanoei as for a new nni- 
Bance, at long at it oontinuet, and It it not in hit power to releaae bim 
self therefrom by granting it over to another. 

80 where one, who demises his property for the purpose of baTing it aed 
in such a way as must prove offensive to others, may bimaelf be treated 
as the author of the mischief. 

One^ who erects a nuisance, and afterwards parts with the real estate upon 
which it is located, either by conveyance with a warranty or coTanant, 
that amounts to an affirmance of the nuisance, and a grant of its con- 
tinuance; or leases it on terms by which he derives a benefit, or proit 
from its continuance, or leases his real estate, receiving rent thetefor 
and knowing, or having reason to believe^ that the use of the prcfvtj 
for the purpose for which it is leased will prove to be injurious to the 
property of others, or become a nuisance, will be liable to an action for 
an injury resulting thereftrom. 

Where the evidence shows the use for which a lumber kiln was erected, the 
use that had been made of it, and that the lessees thereof were intend- 
ing to, and did continue to use it in the same way, and for the same 
purposes as formerly used by the lessor, the jury may reasonably infer 
that the lessor knew, or had reason to believe that the lessees would 
continue the use of it in the same place, and that such was their object 
in leasing the premises, and that if the use of the kiln, at that place, 
was inherently dangerous, they might find against the lessor, for he 
could not relieve himself from liability by leasing the real estate^ and 
not making any agreement, covenant, or guaranty to uphold them in 
the use of the kiln. 

Harvey — Porter. Harrison Sf Hinesj for appellant. 
Taylor^ Rand Sf Taylor^ for appellee. 

Blair, J. — The plaintiff, in his amended complaint, 
alleges that he is the owner of certain lots in the city of 
Indianapolis, having certain bnildings thereon, and that the 
defendant is the owner of certain other lots immediately 
adjoining those of the plaintiff, and separated therefrom 
only by an alley fifteen feet wide ; that the defendant, Hel- 
wig, over the protest of the plaintiff erected thereon, aboat 
the 24th day of May, 1869, a wooden tenement, or building 
commonly called a dry kiln, to be used for drying and sea- 
soning lumber, with a furnace therein, wherein to burn foel, 



\ 



IN GENERAL TERM, 1873. 449 

Jordan v. Helwig et al, 

heat the building, and dry lumber, Helwig knowing its dan- 
gerous character, and its liability, because of the quality of 
the material of which it was built, and the manner of its 
construction, and use ; to take fire, and burn up, and thus 
destroy the buildings of the plaintiif ; that Helwig for a time 
used and operated the same for the purpose of drying lum> 
ber^ and then leased the same to his co-defendant, to be used 
for the same purpose and in the same manner, well knowing the 
danger of using the same, and how liable the use of the 
same was, to result in injury to the plaintiff; that his co-de» 
fendant took possession of and used the premises, and the 
use, and operation of such building as a kiln for seasoning^ 
and drying lumber at the place where located rendered it a 
nuisance, and dangerous to the plaintiff, and that on th^ 
27th day of July, 1870, it took fire, and was destroyed, and 
the flames, and sfiarks therefrom fired the plaintiff's build- 
ings, and caused them to burn ; wherefore, the plaintiff seeks 
to recover, &c. 

The defendant answered in five paragraphs : 
The first was a general denial. 

The second paragraph was that the building was erected 
in pursuance of a permit from the Common Council of the 
city of Indianapolis ; that it was erected in a skillful, and 
workmanlike manner, for the purpose it was intended for; 
that while he had any connection therewith it was con- 
ducted and carried on in a careful, and lawful manner ; that 
in October, 1870, long before the injury complained of 
accrued, he sold all his right in the building to Jackson & 
Rider, from whom it passed to his co-defendant, the Indian- 
apolis Chair Company, and afterward, in May, 1870, he 
leased the ground to the Chair Company, since which he 
has had no interest in the building, its management, nor the 
work carried on therein, nor control over the same in any 
way. 



450 SUPERIOR COURT REPORTa 

Jordan v. Helwig ei oL 

The third paragraph omits the avenneats io regard to the 
permit, bnt otherwise is sabstantially the same as the second. 

The fourth paragraph avers that the plaintiff well knew 
the premises, and the trade, and the business to be carried 
on therein, and with such knowledge allowed the same to be 
erected, and concludes with the same averments as to the 
transfer of property. 

The fifth paragraph is that the defendant, Helwig, long 
before the burning complained of, ceased to have any inter- 
est in the premises, and that the fire complained of did not 
originate in said building, but was caused by fhe negligence 
and carelessness of the plaintiff and his employees, whilst at 
work on the plaintiff's premises. 

Demurrers were sustained to each paragraph of answer, 
except the first These rulings are assigned as errors. 

The City Council could not, by granting a pennit, have 
authorized the defendant, Helwig, to erect a building so a 
to injure the plaintiff, or his property. The building per- 
mit would not authorize the erection of a nuisance. Hence 
that portion of the first paragraph, alleging that the building 
was erected in pursuance of a permit, may be regarded as 
surplusage, and adds nothing to the force of the other 
allegations in the paragraph. The third paragraph is sub- 
stantially the same as the second ; it contains no facts save 
those that might be proved under the second. 

The averments of the fourth paragraph, that the plaintiff 
knowing the premises, and the business to be carried on in 
the building, allowed it to be erected, constitute no defense. 
He was not obliged to resort to an application for an injunc- 
tion, or failing to do so, lose his right of action, if damages 
ensued from the act of the defendant. 

The fifth paragraph contains no facts, except such as might 
be proved under the general issue. 

The second paragraph sets up facts showing that prior to, 



IN GENERAL TERM, 1873. 451 

Jordan v. Helwig et al, 

and at time of the fire, the defendant, Helwig, had parted 
with his property in the kiln, and afterwards leased the real 
estate upon which it was erected. If the demurrer was well 
taken to this paragraph, there was no error in sustaining it 
to the 3d, 4th, and 5th ; and if the second paragraph was 
good, there would be no error for which we could reverse the 
case, on account of the demurrers having been sustained to 
the other paragraphs ; for the same evidence might be intro- 
duced in support of the second, that would have been admis- 
sible under either of the others. 

The cause was tried, resulting in a verdict against the 

defendant, Helwig, from which he appeals. There is no 

dispute as to the material facts in the case, and the errors 

assigned upon the rulings on demurrers, and for giving, and 

refusing instructions, all raise but one and the same question 

The buildings of the plaintiff were located as stated in 
his complaint Immediately across the alley, fifteen feet 
wide, the kiln was constructed. It was erected on the real 
estate of Helwig, and was originally built by himself, and 
one Jackson, and one Rider, who were at the time partners 
in the business of manufacturing furniture, and was built 
for the use of the partnership for manufacturing purposes, 
and belonged to the firm ; other parts of the same lots on 
which the kiln stood, were used as a lumber yard by the 
firm. The kiln was built in May, 1869. In September, 1869, 
the partnership was dissolved, and Jackson & Rider con- 
tinued to carry on the business, and became the owners of 
the kiln by the terms of the dissolution, and Helwig leased 
them the lots on which the kiln was located, for a term of 
three years, reserving rent therefor. The lease merely describes 
the real estate, and adds, " together with the rights, privileges; 
and appertenances thereunto belonging, to have, and to hold 
the same, for and during the term of three years," &c. 

The premises, including the kiln, were in the possession of, 



452 SUPERIOR COURT REPORTa 

JordAD r. Helwig et aL 

and used by Jackson & Rider at the time of the fire. Hel- 
wig, at the time he sold his interest in the partnership prop- 
erty, including his interest in the kiln, leased the real estate 
on which the kiln stood, to Jackson k Rider. 

The property in the kiln passed, by the terms of the dis- 
solution of partnership, and the division of the partnership 
property, to Jackson & Rider, as other personal property of 
the firm passed, and not as real estate, or an interest in real 
estate. The mere structure itself was not a nuisance, nor 
is it claimed to be such by the complaint 

It is alleged that the use and operation of it as a Idln for 
seasoning and drying lumber, at the place where it was 
located, rendered it dangerous to the property of the plain- 
tiff. Without fire in it, without its use for the purpose for 
which it was erected, it was harmless. It was used for the 
purpose for which it was erected, for some fourteen months 
without harm to the plaintiff. From May, 1869, to Septem- 
ber 21st, 1869, the defendant, Helwig, had an interest in the 
kiln, and as a partner, derived profit from its use. After the 
21st day of September, 1869, until the time of the fire on 
the 27th of July, 1870, a period of over ten months, it was 
used for the same purpose by Jackson & EUder. or their 
assignee, the Chair Company, without any injury resulting 
to the plaintiff. 

After the defendant, Helwig, had parted with his interest 
in it, according to the terms of the dissolution of the partner- 
ship, and his lease of the real estate on which it stood, was 
he liable for damages resulting to the plaintiff? This is 
the real question in the case. 

It is a general rule that one who creates a nuisance, is 
liable for its continuance, as for a new nuisance, as long as 
it is continued, and it is not in his power to release himself 
therefrom by granting it over to another. 

The first case cited in support of the claim of the plaintifi| 



\ 



IN GENERAL TERM, 1873. 453 

Jordan v. Helwig ei al. 

is that of RosweU v. Priory 12 Mod^ 635; also, reported in 
1 Lord Raymond^ 713, and 2 SaUc,^ 460. This was an action 
for the obstruction of ancient lights. The lights were 
obstructed by the erection of a building adjacent to that of 
the plaintifl. The defendant, after the erection of the build- 
ing, had leased the same, reserving rent therefor ; and on the 
ground that he had thereby agreed that the obstruction should 
continue, he was held liable. 

The next is that of Rich v. Basterfieldy 56 Eng, Cam. Law^ 
783. This was an action arising from smoke and noxious 
gasses, emanating from low buildings, and chimneys attached 
thereto, and entering the dwelling of the plaintiff. The 
buildings erected by the defendant were let as shops, for 
what purpose is not disclosed, but the smoke passed into 
the house of the plaintiff. The defendant had leased the 
shops from week to week, and they were in possession of 
the tenant at the time of the injury complained of. It was 
shown that the premises had been used without injury to 
the plaintiff by a former tenant, and as the injury resulted 
from the use of the premises by the tenant occupying the 
shops, the landlord only being chargeable with having 
erected them, and by leasing them, enabled the tenant to 
make fires if he chose, but the landlord not being under any 
obligation to uphold the tenant in the use of the premises 
as he did use them, he was held not liable. The premises 
were capable of being used without injury to any one, and 
there is nothing in the case as reported to show that the land- 
lord had any knowledge, or reason to believe, that they would 
be used so as to become a nuisance. 

The Court says, ^ the utmost that can be imputed to the 
defendant, is, that he enabled the tenant to make fires if he 
pleased," and in commenting upon the case of the Xing' v. 
PecUepj 1 Ad Sf E.j 822, the Court says, '' if it is to be taken 
as a decision that the landlord is responsible for the act of 



454 SUPERIOR COURT REPORTa 



Jordan v. Helwig et aL 



his tenant in creating a naisance by the manner in which he 
uses the premises demised, we think it goes beyond the prin- 
ciple to be found in any previoasly decided cases; and we 
cannot assent to it" 

In the case of Fi$h v. Dodge^ 4 Demoy 311, the plaintiff 
occupied a dwelling-house, and kept boarders. The defend- 
ant owned a blacksmith shop adjoining, and rented a part of 
it to be used in finishing steam boilers, and the use of it for 
that purpose disturbed the plaintiff and her boarders. There 
was no partition in the shop, and the defendant also carried on 
his business in the shop at the same time, his workmen, and 
those making boilers working part of the time at the same 
forge, and the defendant all the time carrying the key, and 
controling the shop. After commenting upon certain cases, 
and announcing the general rule to be, as already stated, the 
Court used the following language : ^ But none of the cases 
go far enough to aid the plaintiff, unless the defendant can 
be regarded as the author of the nuisance. He did not 
manufacture the engine boilers, nor were they made for him. 
But the jury have found that he let the shop for the purpose 
of having the boilers manufactured there ; and if he knew 
that it would prove a nuisance to the plaintiff, I think the 
action may be sustained." One who demsies his property for 
the purpose of having it used in such a way as mast prove 
offensive to others, may himself be treated as the author of 
the mischief. It was, therefore, held in that case, that the 
defendant was not liable, unless he knew, or had reason to 
believe, that he was letting the shop for a use which must 
prove injurious to the plaintiff. 

The case of Wagoner v. Jermaine^ 3 Denio, 306, was an 
action on the case for overflowing lands of the plaintiff. 
The dam which caused the overflow, was erected long before 
the action vsras brought, but was raised by the defendant some 
four years prior to the bringing of the action, and after it 



IN GENERAL TERM, 1878. 455 

Jordan v. Helwig et al, 

was raised, the premises on which it was located were con- 
veyed by the defendant ; the conveyance contains covenants 
of seizin and warranty, and also a clause giving the grantees 
the right to flow the lands of the grantor ''to high water 
mark, and as far as has hitherto been necessary for the use 
of the mills on the premises above conveyed, the dam remain- 
ing at its present height." 

It was held that the action coald be maintained, because 
the covenants in the deed made by the defendant were an 
affirmance of the nuisance in possession of the grantee. 
Before that, the case of Blunt v. Aiken^ 15 WetuLj 522, had 
been decided, in which it was held (it also being an action 
for overflowing lands by a mill dam) that an action on the 
case for flowing lands will not lie against a former owner of 
land who erected the dam and built a mill, by means of which 
the injury was done, where it appears that other persons are 
in possession of the premises, occupying them as their own^ 
and there is no evidence that they hold as tenants of such 
former owner. The action must be against the person in 
possession. 

In the case of Wagoner v. Jermainej the Court in com- 
menting upon the case of Blunt v. Aiken^ uses the following 
language: "The principle, however, is recognized, and 
sanctioned by the reasoning in that case, that where the 
defendant is out of possession at the time the injury was 
committed, and another person has the entire possession, if 
he was the erector of the nuisance and owner of the premises, 
and under some agreement with the possessor by which he 
was bound to uphold him in possession, the action would 
well lie against him, on the ground that he, by such relation 
with the occupier, had affirmed the continuance of the nui- 
sance, that it might be said to be a continuance by himself.'^ 

It will be seen from an examination of the foregoing cases, 
that the principle upon which an action is maintained against 

13 



456 SUPERIOR COURT REPORTS. 

Jordan v. Helwig ei aL 

one who erects a nuisance, but who has afterwards parted 
with the real estate on which it is located, is that he has 
conveyed it with a warranty, or covenant, that amounts to an 
affirmance of the nuisance, and a grant of its continuance, or 
has leased it on terms by which he derives a benefit, or profit, 
from its continuance ; or leases his real estate, receiving rent- 
therefor, and knowing, or having reason to believe, that the 
use of the property for the purpose for which it is leasedi 
will prove to be injurious to the property of others, or become 
a nuisance. 

The case of Hanse v. Comngj 1 Lansings 288, is cited by 
the defendant This was also a case for the flowing of water 
caused by a dam, or embankment Evidence was introduced 
showing, that the premises had been conveyed by the defend- 
ant, who had erected the dam, or embankment, and it was 
held competent for the purpose of showing that he was not 
liable for a continuance of the nuisance. The following 
language is used by the Court on this point << The general 
proposition is undoubted, that one who creates a nuisance is 
liable for its continuance, as for a new nuisance, so long as it 
continues, but the proposition is not unqualifiedly true. To 
remain liable, he must in fact own, or possess the prem- 
ises on which the nuisance is created, or must derive some 
benefit from its continuance." It is said, further, that ^ the 
deed, to bind the party who erects the nuisance should war- 
rant the continued enjoyment of the nuisance itself, or what 
creates the nuisance as used at that time." 

In the case at bar, the kiln was not a part of the real estate, 
it was erected for manufacturing purposes, and was never 
owned by Mr. Helwig, except as a member of a partnership. 
Before the injury occurred, he parted with his entire interest 
in it ; he owned the real estate on which it was erected, and 
leased it to his former partners, who were then the owners 
of the kiln. There is nothing in the lease, in evidence, that 



IN GENERAL TERM, 1873. 457 

Jordan v. Helwig et al, 

binds Helwig to maintain them in the use of the kiln, nor 
can it be said that he, after parting with his property in it, 
derived any benefit from its use, except as he received the 
rent stipulated for the use of his real estate. 

If the use of the kiln, at the place where it was located, 
was as allegdd in the complaint, inherently dangerous to the 
property of the plaintiii, and the defendant with such 
knowledge sold his property in the kiln to Jackson & 
Rider, his former partners, and leased them the real estate, 
reserving rent therefor, knowing, or having reason to 
believe, that they would continue to use the premises as a 
location for the kiln, and knowing, or having reason to 
believe, that they would continue the use of the kiln for 
the purpose for which it was erected, and as it had been 
used before, the ease is within the rule laid down in numer- 
ous cases, and particularly that of Fish v. Dodge, supra, and 
the defendant would, in such case, be liable. 

The second paragraph of the answer does not (nor do any 
of the other paragraphs) negative these averments of the 
complaint^ or avoid them. The lease of the real estate by 
Helwig, was introduced in evidence, and also testimony as 
to the sale of his interest in the kiln to Jackson & Rider ; 
and, in fact, there does not seem to have been any evi- 
dence that would have been admissible under the second 
paragraph of answer, excluded from the consideration of 
the jury. The first, second, and third instructions, given by 
the Court, to the giving of which the defendant excepted, 
are in harmony with the rules of law as before stated, and 
are unobjectionable. 

The fourth, fifth, sixth, and seventh instructions, asked by 
the defendant, and refused by the Court, and to which refusal 
the defendant excepted, ignored the rule as we have given it, 
and sought to release the defendant from liability, on the 
ground of his having parted with his property in the kiln, 



458 SUPERIOR COURT REPORTS. 

Jordan v. Helwig ei aL 

and leased the premises without any covenant or guaranty, 
to uphold the lessees in the continued use of the same. If 
be knew the kiln was inherently dangerous, and knew, or 
bad reason to believe, that the lessees would continue the 
use of it in the same place, he could not relieve himself from 
liability by leasing the real estate, and not making any 
agreement, covenant, or guaranty, to uphold them in the 
use of the kiln. 

The instructions given, fairly submitted these questions to 
the jury, and as the evidence showed the use for which the kiln 
was erected, the use that had been made of it, and that the les- 
sees were intending to, and did continue the same use, the jury 
might reasonably infer that Helwig knew, or had reason to 
believe, that the lessees would continue the use of it in the 
same place, and that such was their object in leasing the 
premii$es ; and if the use of the kiln at that place was inher- 
ently dangerous, they might find for the plaintiif; and as 
they did so find in accordance with the instructions, we can- 
not disturb the verdict 

We discover no error in refusing the instructions asked. 

Judgment afRrmed. 



IN GENERAL TERM, 1873. 459 



Munson v. Meiners. 



IN GENERAL TERM, 1873. 



David Munson v. Cornelius Meiners. 
Contract — by vnfe. 

A contract entered into by the wife, for work, and material to be furnished, 
unauthorized by the husband, will be held to be ratified by him, 
if, with a full knowledge of all the facts, he gives no notice of disap- 
proval, or otherwise seeks to absolve himself from liability within a 
reasonable time, by repudiating such act done without his authority. 

Newcomb, J. — The plaintifTis a manufacturer and vender 
of lightning rods, and one Gardner was, in May last, his 
traveling agent for the sale of the same. 

This suit was brought to recover the value of a liberal 
quantity of lightning rods, with which the defendant's resi- 
dence was embellished by Gardner. His professional adroit- 
ness in the transaction is detailed by Gardner, in a manner 
so bland and artless, that we cannot improve his statement 
by condensation, and therefore copy his testimony in full 
from the bill of exceptions. 

He says : << I was working for the plaintiff in May last, 
putting up lightning rods. While passing the house of 
defendant, his wife called me in, and told me to fix the light- 
ning rod on the house, that it was broken. I examined the 
old rods, and told her that they could not be fixed, but that I 
could put on new ones. She asked me what it would cost. 
/ told her 1 did not know. She said fix it right and safe. I 



460 SUPERIOR COURT REPORTS. 



\ 



Monaon v, Meinen. 



then put on 20G feet of uew rods. B was worth 975. Do 
not know Mr. Meiner's — never saw him." 

Cross-examination. — ^^ Can't tell how much old rod there 
was. I put the new all aver the hause^ and back on the sheds. 
There were only two points to the old rod — there were five 
points to the new. She asked me how much it would cost| 
but I did not even intimate whether it would cost $5 or 9100. 
Oave her no idea what it would cost I don't know what I 
did with the old rod ; we generally take them away ; they 
are not worth anything." 

The defendant testified that his wife had been an invalid 
for years, and that she was not, and had not been, his 
agent for the transaction of any business whatever; that 
he was absent when the lightning rods were put up, and that 
on his return, about three weeks afterward, he was displeased 
because they were there, and so told his wife ; that she said 
they would not tell her what it would cost, and that she had 
910 in the house out of which she expected to pay the bill ; 
that if she had known it would cost more, she would not 
have had the work done. The defendant further testified 
that he never interferred with the rods ; that he did not notify 
Munson that he was dissatisfied with the act of his wife, or 
have any communication with him touching the lightning 
rods. 

There can be no doubt, from the testimony of Gardner 
himself, that he purposely concealed from the defendant's 
wife the cost of putting up the new rods, by the false state- 
ment that he did not know what they would cost ; and that 
he used a much larger quantity of material than was on the 
building before, and larger than he was authorized to by the 
order he received ; but under the faet^ as they appear in the 
bill of exceptions, we cannot relieve the defendant from the 
judgment rendered against him at Special Term. He might 
have absolved himself from liability by repudiating the unaa- 



IN GENERAL TERM, 1873. 461 

Munson v. Meinen. 

thorized act of hia wife, and notifying the plaintiff to remove 
the rods. Instead of doing this, he remained silent for more 
than two months after all the facts in the case came to his 
knowledge, although both he, and the plaintiff resided in this 
city ; and there is no evidence that he gave any notice of 
dissatisfaction until after he was sued for the value of the 
lightning rods. 

The defendant must, therefore, be held to have ratified 
what his wife had done without his authority, and also the 
acts of Grardner in excess of the wife's order ; consequently 
the motion for a new trial was properly overruled. 

On the trial the plaintiff was permitted by the Court to 
amend his complaint by striking out the words, <' his special 
instance and request," and inserting the words, <' the request 
of defendant's wife, and that the defendant ratified and 
affirmed the same," so that instead of avering a request from 
the defendant himself to furnish the rods, the complaint 
charged a request by defendant's wife and a ratification of 
her act by him. To this amendment the defendant excepted, 
and assigns its allowance as error. In legal effect there was 
no essential difference in the averments. The complaint 
was neither better nor worse for the amendment, and no 
injury accrued to the defendant in consequence of it 

The judgment at Special Term is affirmed, at the cost of 
the appellant. 



462 SUPERIOR COURT REPOBTa 



Bruce v. Baker et at. 



IN SPECIAL TERM, 1873. 



George Bruce v, Margaret M. Baker et al. 

Will — interpretation of— 

Descent — laws of- — 

Kindred — degrees ofj how comyUed. 

Where two provisions in a will are inconsbtent with each other, and can- 
not stand together, the rule that the latter provision must prevail, is 
only to be applied where there is an invincible repugnancy, and it is 
impossible to determine which clause the testator intended to prevail. 

In arriving at the intention of the testator, the entire will is to be examined, 
and if necessary, words and sentences may be transposed, or even sup- 
plied, to make it read as evidently intended, and as near as can be, effect 
given to the whole instrument. 

A general disposition, by will, of an estate, will be regarded as subject to a 
more S2>ecific disposition, and it is not important in applying this rule, 
whether the general, or more specific provision comes first in order. 

A will should not be construed so as to disinherit an heir, unless the 
intent to do so is clearly expressed. 

The Statute of this State regulating descents and the apportionment of 
estates, covers the entire law of descent, and the common law canons of 
descent are not in force. 

Where an intestate loaves him surviving, no widow, no child or children, 
or descendant of such child or children, no father or mother, no brother 
or sister, and no descendant of any brother or sister, no grandfather or 
grandmother, no uncle or aunt in the paternal line, or descendant of 
any such uncle or aunt, the estate will go to the next of kin. 

In ascertaining who are next of kin in such case, we are not limited in the 
line of lineal ascent to that of grandfather and grandmother, but the 
estate must go to the next of kin, though such kin is found in the line 
of lineal ascent further removed in degree of kindred than grandfather 
or grandmother. 

It is not contemplated by the Statute of descents and the apportionment of 
estates that two different rules should be followed in computing degrees 
of kindred, one to be applied in cases of descent of real estate, and the 
other in the distribution of personal estate. 



IN GENERAL TERM, 1873. 463 

Bruce v. Baker ei al. 

Degrees of kindred under the Statute of descents and apportionment of 
estates, are to be computed by the rule of the civil law. 

The great-grandmother of an intestate, by the rule of the civil law, is one 
degree nearer of kin to the intestate, than a great-uncle or great-aunt. 

The principle of representation as given in the second section of the Statute 
of descents, is not applicable to that part of the fifth section of the 
Statute which provides that in the absence of any of the kindred 
named in that, and the preceding sections, the estate " shall go to the 
next of kin in equal degree of consanguinity." By this latter pro- 
vision the estate goes to the next of kin who are living at the death of 
the intestate. 

Bakery Hord Sf Hendricks^ for plaintiff. 
R, B. Sf J, S, Duncan^ for Margaret M. Baker. 
Rittefy Walker Sf Rittety and Chapmariy Hammond Sf Hawesi 
for other defendants. 

Blair, J. — The plaintiff in his complaint, claims to be the 
owner in fee simple of the undivided seven-eighths, and 
admits that the defendant, Margaret M. Baker, is the owner 
of the undivided one-eighth of certain tracts of land in Marion 
county. For more particular reference, one of the tracts is 
designated as tract No. 1, and the other as tract No. 2. 
William Reagan owned tract No. 1, and died testate, on 
the 5th day April, 1847. By his will, which is made a part 
of the complaint, it is claimed that the said tract passed to 
his widow, Nancy Reagan, during her natural life, remainder 
to his daughter, Rachel Johnson, then the wife of Jeremiah 
Johnson, during her natural life, and after her death to her 
child or children of her body, lawfully begotten, who might 
survive her, in fee simple. The will, which was duly pro- 
bated, reads as follows : 

" I, William Reagan, of Marion county and State of Indi- 
ana, knowing the uncertainty of life, but being of sound 
mind and discretion, do make and publish this, my last will 
and testament, hereby revoking all former by me made. I 
do bequeath unto my daughter, Rachel Johnson, wife of 
Jeremiah Johnson, a tract of land on which she now lives, 



464 SUPERIOR COURT REPORTS. 

Bruce v. Baker ei aL 

lying and being in Marion county, known as the soath half 
of the south-east quarter of section number twenty-five in 
township number sixteen north of range three east, for and 
during her natural life, provided she shall be living at the 
time of my death, and after her death to the child or children 
of her body lawfully begotten who may survive her, in fee 
simple. But if she, said Rachel, should die before me and 
leave such child or children living at my death, then, in that 
event, I bequeath said land to said child or children in fee 
simple. But should she, said Rachel, be living at the time 
of my death and afterwards die leaving no such child or 
children, then I give and bequeath said tract of land to said 
Rachel for life. Remainder to my right heirs in fee simple. 

I give and bequeath to my daughter, Dovey Bruce, wife 
of George Bruce, the north half of the aforesaid tract of 
land for and during her natural life, provided she shall be 
living at the time of my death, and after her death to the 
child or children of her body lawfully begotten who may 
survive her in fee simple. But if the said Dovey should die 
before me and leave such a child or children living at my 
death, then, and in that event, I bequeath said tract of land 
to said child or children in fee simple. But should the said 
Dovey be living at the time of my death and afterwards die, 
leaving no such child or children, then I give and bequeath 
said tract of land to said Dovey for life. Remainder to my 
right heirs in fee simple. 

It being my express intention that my said daughters shall 
respectively enjoy said tracts of land above described and 
bequeathed during their respective natural lives, and after 
their and each of their deaths to descend in fee simple respec- 
tively to the child or children of their bodies lawfully begot- 
ten that may survive them respectively and survive myselfi 
and in default then to go to my right heirs in fee simple. 

I give and bequeath to my beloved wife Nancy during her 
natural life, the farm on which I now live, known as the 



IN GENERAL TERM, 187a 465 

Broce v. Baker ei al. 

8outh-eaBt quarter of section number twenty-five in town- 
ship number sixUen (16) north of range three east, and after 
her death to my right heirs in fee simple, except the said 
Rachel Johnson and Dovey Bruce, and their descendants. 

I also direct that all my just debts, expenses of my last 
sickness, and funeral expenses, shall be paid out of the money 
and personal property I may die possessed of, and the rest 
and residue thereof I give and bequeath to my said wife 
Nancy, and after her death to my said daughter, Dovey 
Bruce. 

In witness whereof, I have hereunto set my hand and seal 
this 11th day of November, 1842. 

[l. s.] WILLIAM REAGAN. 

Signed, sealed, and published in presence of us who have 
signed as witnesses in presence of each other. Phillip 
Sweetzer, John W. Hamilton, John Sutherland, Greorge W. 
Stipp.'^ 

The complaint then shows that at the death of William 
Reagan, he left him surviving, his wife Nancy Reagan and 
his two daughters Rachel Johnson, then the wife of Jere- 
miah Johnson, and Dovey Bruce, then and still the wife of 
the plaintiff, George Bruce, and leaving no other child, or 
descendant of any other child surviving him. That Dovey 
Bruce had, at the making of the will, and at the death of 
said testator, two sons living, and that Rachel Johnson had 
one son, Harris L. Johnson, then living. That Rachel John- 
son died on the 24th day of April, 1847, leaving her husband, 
Jeremiah Johnson, and her son Harrison L. Johnson, her 
surviving. That at the death of the said Rachel Johnsoii, 
the fee simple in and to tract No. 1, vested in Harrison L. 
Johnson, subject to the life estate of Nancy Reagan. 

As to tract No. 2, it is alleged to have been purchased of 
the government of the United States, by Jeremiah Johnson 
in 1821, and afterwards conveyed to his son, Harrison L. 



466 SUPERIOR COURT REPORTa 

Bruce v. Baker et aL 

Johnson, for a valuable consideration. That Harrison L. 
Johnson, married Margaret Peck, by whom he had one child, 
John W. Johnson. That Harrison L.Johnson died intestate, 
on the 15th day of September, 1856, leaving his widow, 
Margaret Peck Johnson, and his son John W. Johnson, sur- 
viving him, each of whom received by descent an undivided 
one-half of both of said tracts. 

That Jeremiah Johnson, (grandfather of John W. John- 
son,) died on the 5th day of April, 1857. That Margaret 
Peck Johnson, widow of said Harrison L. Johnson, died on 
the 5th day of December, 1857, leaving her son, John W. 
Johnson, her sole heir. That the said John W. Johnson, 
being thus the owner of one half of both tracts of land by 
descent from his father; and the other half by direct descent 
from his mother, died intestate on the 27th day of Decem- 
ber, 1872, leaving surviving him no widow, no child or chil- 
dren, no father, no mother, no brother or sister, and no 
descendant or descendants of any such brother or sister, no 
grandfather or grandmother, no uncle or aunt in the pater- 
nal line, and no descendant or descendants of any such uncle 
or aunt in said paternal line, but leaving him surviving his 
great-grandmother, the said Nancy Reagan, who was the 
grandmother of his father," she being his next of kin among 
his paternal kindred^ and to whom it is alleged the undivided 
one-half of the two tracts of land descended or rather ascend- 
ed, and that she has since conveyed the same to the plaintiff. 
The other half of said two tracts, it is admitted in the com- 
plaint, passed to the maternal kindred of John W. John- 
son, all of whom have conveyed to the plaintiff except the 
defendant, Margaret M. Baker, who owns one-eighth as 
before stated. 

The complaint alleges that the defendants, other than Mar- 
garet M. Baker, claim some interest in the real estate, and 
the plaintiff asks that his title may be quieted ; and a second 
paragraph asks that partition be made, etc. 



I 



IN GENERAL TERM, 1873. 467 

Bruce v. Baker ei al. 

The defendants, Rouel Reagan and others^ one of whom 
is a brother of William Reagan, and others who are descend- 
ants of other brothers and sisters of William Reagan, by 
their answer claim an interest in tract number one, by virtue 
of the will of William Reagan. 

A demurrer having been filed to their answer, the follow- 
ing opinion was rendered thereon : 

It is not disputed but that by the first clause of the will ; 
if it is to stand and be construed as it reads, the tract in 
question would pass as follows : To Rachel Johnson, daugh- 
ter of the testator, for her natural life, and after her death to 
her son, Harrison L. Johnson, in fee simple. 

The claim of these defendants is based upon the last 
clause of the will, they claiming to be right heirs of William 
Reagan, the testator. This clause, as far as it relates to the 
claim of the defendants, Reagan and others, is as follows : 
" I give and bequeath to my beloved wife, Nancy, during her 
natural life (here tract No. 1 is described), and after her 
decease to my right heirs in fee simple, except the said 
Rachel Johnson and Dovey Bruce and their descendants. 

Taking each of these provisions of the will we have : 

1st The same real estate bequeathed to Rachel Johnson 
for life and Nancy Reagan for life ; 

2d. That after the death of Rachel Johnson it is be- 
queathed in fee simple to her son, Harrison L. Johnson ; 

3d. After the death of Nancy Reagan it is bequeathed 
in fee simple to the right heirs of William Reagan, the tes- 
tator, '^except the said Rachel Johnson and Dovey Bruce, 
and their descendants. 

As to the two co-existent life estates which are carved out 
of the fee, we have but little difficulty. One of the first 
rules for disposing of such cases, is, that both take jointly, 
or as tenants in common — but whether we dispose of the 
apparent difficulty in that way, or by holding the latter life 



468 SUPERIOR COURT REPORTS. 

Bruce v. Baker et ml. 

estate to prevail over the first, is unimportant ia this 
Whatever estate Rachel Johnson took, ended at her deathf 
which occurred only nineteen days after that of her father. 
The disposition made of the fee presents greater difficulty. 
The entire scope and scheme of the will, except the latter 
clause, contemplates and shows, an intention on the part of 
the testator, to devise the estate in fee to the child or chil* 
dren of Rachel Johnson, if any such survived her, and only 
in case such child should not survive her, was it to go to his 
heirs. 

The first part of the will, is clear and explicit ; and makes 
a specific disposition of the fee simple of the real estate to 
parties competent to take, and to such as we would natur* 
ally infer he wished to give it — that is ; to bis daughter for 
life, and to his grand son in fee. In addition to this, he says 
such is his express intention. 

It is urged that the two provisions can not stand together, 
and hence the latter must prevail. This is a rule which is 
generally announced, and yet seldom applied, and less f)re> 
quently now than formerly. 

There is but little reason to support it The last solemn 
act in making a will, is signing and publishing it, and this 
act relates to all and every part of the instrument, and gives 
force and validity to the instrument as a whole. 

The rule, at best, is but an arbitrary one, and only to be 
used where there is an invincible repugnancy, and it is impos- 
sible to determine which clause the testator did intend to have 
prevail. In arriving at the intention, the entire instrument 
is to be examined, sentences and whole clauses transposed, 
if necessary, and even words and sentences supplied, to 
make it read as evidently intended. As near as can be, 
effect must be given to the whole instrument 

A search among precedents will aid us but little. 

As before stated, the will under consideration in its first 



IN GENERAL TERM, 1873. 469 

Bruce v. Baker et aL 

provisions is clear and specific. The person, or persons, who 
take in fee, certain definite parts of the real estate, are pointed 
oat as the '< child or children " of his daughters, lawfully 
begotten. The last clause, if the construction claimed by 
the defendants is to prevail, is a general bequest of the fee 
to bis '< right heirs," except to his daughters and their 
descendants. This construction would violate one funda- 
mental rule, that a general disposition of the estate, will be 
regarded as made subject to the more specific. It is not 
important in applying this rule, whether the general, or more 
specific provision, comes first in order. 

The construction claimed on behalf of the defendants, 
abrogates the entire will, except the last clause, and disin- 
herits his own children ; thus violating another rule, that 
wills should not be so construed as to disinherit an heir, 
unless the intent to do so is clearly expressed. 

Immediately preceding the last clause, the testator says, it 
is bis express intention, that all of his real estate, shall go to 
the child or children of his daughters, and only in default 
thereof, should go to his right heirs. 

To give the will any other construction, than that which 
is consistent with the testator's declared intention, would 
make the last clause repugnant to the specific directions, as 
well as to the general scheme of the will, and compel us to 
believe that tbe testator had a capricious and irrational inten- 
tion. If it was necessary, I should have no hesitancy in 
holding, that some words are omitted from the last clause, 
which it is clear were intended to have been used, to make 
it express the intention of the testator. 

But even as it is, I am of opinion, that it is not susceptible 
of the construction claimed by the defendants. 

The demurrer must, therefore, be sustained. 

The defendants, Mary Cloud and others, having also filed 
their answer, and the plaintiff having demurred to the same, 



470 SUPERIOR COURT REPORTS. 



Bruce v. Baker ei oL 



upon the qnestion thas raised, the following opinion was 
rendered : 

The defendaants, Mary Cload, Milton Johnson and Nancy 
Harding, living sisters and brother of Jeremiah Johnson, the 
grandfather of John W. Johnson, and the other defendants 
who are descendants of other brothers and sisters of Jere- 
miah Johnson, claim to have inherited a portion of the real 
estate. 

Their claim is based upon three positions. 

Ist That our statute does not permit lineal ascent above 
that of grandfather and grandmother, or the survivor of them, 
and as the first canon of the common law did not permit 
lineal ascent in any case, and the common law canons of 
descent being in force except as changed or repealed, by our 
statute, the one-half of the real estate descended to the col- 
lateral relatives of the blood of the father of John W. John- 
son ; they being next of kin in equal degree of consanguinity. 

The position is untenable. Our statute was intended to, 
and does cover the entire law of descents ; and in the lan- 
guage of the court in Murphy v. Johnson^ 35 indL, 442, ^the 
common law canons of descent have been overturned in this 
State by our statute of descents." 

Such has been the ruling in most, if not all, of the States 
of the United States, where statutes of descent have been 
adopted similar to ours. Penn v. Cox^ (10 Ohio Rep.^ 32.) 

The rights of the defendants must therefore stand, or fall, 
by the construction to be placed upon our statute of descents. 

The first section of the statute (1 6. & H. p. 291,) provides 
for descent to children. 

The second section, to grand children, and as it will here- 
after be referred to more particularly, I cite it in full. 

<^ Sec. 2. If any children of such intestate shall have died 
intestate, leaving a child or children, such child or children 
shall inherit the share which would have descended to the 




IN GENERAL TERM, 1873. 471 



Bruce v. Baker et al. 



father or mother, and grand children, and more remote 
descendants, and all other relatives of the intestate, whether 
lineal or collateral, shall inherit by the same rule : Providedj 
That if the intestate shall have left at his death grandchil* 
dren only alive, they shall inherit equally." 

The third section provides that in the absence of children 
or their descendants, the estate shall go to the father and 
mother, and to brothers and sisters, and their descendants. 

The fourth section, in the absence of brothers and sisters 
or their descendants, gives all the estate to the father and 
mother. 

The defendants are hot within any of these clauses. 

The fifth section, as far as applicable to this case, reads as 
follows : 

'^ Sec 5. If there be no person entitled to take the inheri- 
tance according to the preceding rules, it shall descend in the 
following order : FirsU If the inheritance came to the intes- 
tate by gift, devise, or descent, from the paternal line, it shall 
go to the paternal grand-grandfather and grandmother, as 
joint tenants, and to the survivor of them ; if neither of them 
be living, it shall go to the uncles and aunts in the paternal 
line, and their descendants, if any of them be dead, and if 
no such relatives be living, it shall go to the next of kin in 
equal degree of consanguinity, among the paternal kindred ; 
and if there be none of the paternal kindred entitled to take 
the inheritance as above prescribed, it shall go to the mater* 
nal kindred in the same order." 

There being no grandfather or grandmother ; no uncles or 
aunts of the intestate, or the descendants of any such, the 
real estate in question must *< go to the next of kin in equal 
degree of consanguinity," and in ascertaining who are next 
of kin, we are not limited as claimed by the defendants, in 
the line of lineal ascent, to that of grandfather and grand* 
mother, but if the nearest of kin^ is found in the line of 

14 



472 SUPERIOR COURT REPORTa 



firuM V. Bftker el al. 



ascenti farther removed in degree of kindred than grand- 
father or grandmother, it is there, the estate mast go. 

The statute is silent as to the rale, by which degrees of 
kindred are to be determined. 

This leads to the second and most important qaestion |He- 
sented. The plaintiff's title is based upon the descent of 
the real estate to Nancy Reagan, the great-grandmother of 
the intestate, as his next of kin. By either rale of com- 
puting degrees of consanguinity ; by the rule of the civilians, 
as well as by the rule of the canonists, she stands in the 
third degree. The defendants, who are brothers and sisters 
of Jeremiah Johnson, the grandfather of the intestate, (being 
great-uncles and great-aunts of the intestate,) by the rule of 
the civilians, would be in the fourth degree ; and by the rule 
of the canonists, in the third degree, that is, in the same 
degree of kindred to the intestate, as Nancy Reagan. 

In reckoning degrees of consanguinity, the common law 
recognizes two methods, the rules of the canon law being 
applied to the law of the descent of real estate, and the rule 
of the civilians being followed in the descent of personal 
estate, and each of which rules, it is said by common law 
writers, has been adopted by the common law. 

A search for the origin of these rules leaves us in a maze 
of uncertainty, except in this; that the English statute of 
descents, and the rules of computing degrees of kindred 
according to the canonists, is the growth of the feudal sys- 
tem, and the encroachments of the ecclesiastical power upon 
the civil. 

The rules are never spoken of by the text writers, or in 
any of the early reports, as originally a part of the common 
law, but as rules adopted into the common law ; that is, bor^ 
rowed from the canonists in the one case, and the civilians 
in the other. Blackstone uses this language : 

'^ That this nearness or propinquity of degree, shall be reck- 



IN GENERAL TERM, 1873. 473 

Bruce v. Bakor et al, 

oiied according to the computation of the civilians; and not 
of the canonistfli which the law of England adopts in 
the descent of real estates ; becausci in the civil computa- 
tion, the intestate himself is the terminus^ a quo the several 
degrees are numbered ; and not the common ancestor, accord- 
ing to the rules of the canonists." Black$Ume^$ Cam.^ 2 voL^ 
504. 

If this is the true reason of the rule, the reason fails with 
us, for as before stated, our statute does not search back for 
the common ancestor. 35 Ind.^ supra. 

In a note appended by Mr. Christian to the same volume 
of Blackstone, page 207, note 6, he says, in reference to the 
descent of real estate : '' It is said that the canon law com- 
putation has been adopted by the law of England ; yet I do 
not know of a single instance in which we have occasion to 
refer to it. But the civil law computation is of great impor- 
tance in ascertaining who are entitled to the administration, 
and to the distributive shares of intestate personal property." 
He was perhaps mistaken in the assertion, which would carry 
the impression that seldom, if ever, was it necessary to refer to 
the rule of the canonists, in reference to real estate, but the 
main idea is correct as to the relative importance given by the 
common law to the two rules. The common law canons of 
descent not recognizing lineal ascent, but looking mainly to 
the immediate descendants of the person deceased, the dif- 
ference between the two rules of computation was not often 
a matter of serious question. The rules of the cannon law 
as adopted into the English law of descents, as before stated, 
ivrere the growth of the peculiar institutions of that country, 
and were in a great measure, if not entirely, local to that 
kingdom, and in nearly all the States of the United States, 
the system has been overturned as unsuited to our institu- 
tions and people. 

To trace the rule of the civilians as adopted into the com- 



474 SUPERIOR COURT REPORTS. 

Bruce v. Baker et oL 

mon law of England, in reference to the distribotion of per- 
sonal estate, woald take more time and space than I have at 
command. 

In the first place, the king, under the prerogative of the 
crown, seized the personal estate, and disposed of it through 
his ofHcers very much at his pleasure. Afterwards, the right 
was granted to ''many lords of manors.'' Afterwards, the 
church was invested with this branch of the prerogative^ 
under the assumption that, ^ none could be found more fit to 
have such care and charge of the transitory goods of the 
deceased, than the ordinary, who all his life had the care and 
charge of his soul.'' Grysbrook v. jPox, Plowd, 277. 

This proved a delusion, however, for it was soon found 
that the church was appropriating the funds, except what the 
conscience of the ordinary would permit him to give to the 
wife and children of the intestate. Even the debts of the 
deceased were left unpaid. This, of course, led to trouble^ 
and the liberty taken w*ith the goods of deceased persons^ 
was a matter of scandal to the church, and great oppression 
to the people, and was much complained of during the reign 
of Edward III, and in the sixteenth year of that king (in 
the year 1342) it was ordained, that debts should be paid, 
and the residue was to be given to pious objects, to persons 
of the blood of the deceased, the salvation of the souls of 
the dead, etc., and none to be retained by the ordinary, except 
something reasonable for his trouble. Reeve^s History of the 
English Laic^ voL^ 3 pp. 85 and 230. 

This did not remedy the evil. The conscience of the 
ordinary was still trusted, and relations and creditors still 
suffered. The subject was still a theme of contention, 
between the ecclesiastical power and the courts of com- 
mon law. During all the succeeding reigns, particularly 
that of Henry V, Henry VIII, Elizabeth, and James 1, it 
was the subject of various acts of parliament, and finally in 




IN GENERAL TERM, 1873. 475 

Bruce o. Baker et al, 

the twenty-second and twenty-third years of Charles II, the 
statute of distribation was passed. Stat, at large, 166fl to 
88, p. 347. 

Nothing is said in that statute as to how the degrees of 
kindred shall be reckoned. As it was drawn by a civilian 
and was conceived to have been copied from the 118th Novel 
of Justinian, it was always construed according to the rules 
of the civil law, and the rules of the civil law in computing 
degrees of kindred were always followed. The occasion of 
making this statute of distributions, was to end the long 
contest between the common law and the ecclesiastical 
courts. WaUis v. Hodson^ 2 Atkyns^ 115 ; Edwards v. Free- 
man^ 2 P. Wms.^ 435. 

An interesting case illustrating the law as it previously 
existed, is that of Carter v. Crawley^ decided in 1681. T. 
RaymofuPs Rep., 496. 

It is said of this statute '' that it is little more than restor- 
ation, with some refinements and regulations, of our old con- 
stitutional law ; which prevailed as an established right and 
custom, from the time of King Canute downward, many 
centuries before Justinian's laws were known in the western 
part of Europe. • 2 Blackstone^s Com., 516 ; Broom's Cbim., 
Fo/. 2, 649; WiUiams on EcectUorSy 1060. 

It was claimed, that the abuses that had crept in, were but 
encroachments of the canonists upon the common law. 

Granting dispensations for marriage, was a power claimed 
by the canonists, and by their rule of computing consan* 
guinity, a greater number of persons were brought within 
the prohibited degrees, and hence their power and means 
of acquiring revenue from dispensations was increased, and 
hence their adherence to the rule. 

In Britton, which was written about the beginning of the 
thirteenth century, a figure or ''Arbor Consanguinitis " is 



476 SUPERIOR COURT RBPORT& 



Bmoe V. Baker et oL 

spoken of in the chapter on degrees of kindred, as prepared 
by the author and inserted in the book. 

In a note appended by Plowden, to the case of Ckre v. 
Brooke^ {Phwdtn^ 451) a case decided in the fifteenth year 
of Elizabeth, and involving the descent of real estate, it is 
stated ^ Bracton and Britton also made mention that they 
had drawn out in their books a tree of parentage, by which 
it woold plainly appear how the degrees of consanguinity are 
to be accounted ; • • * • which figure or tree is not 
printed in either of their books, and, therefore, I have drawn 
it out in the line direct descending and ascending, according 
to the notion of Bracton, (as far as I am able to collect firom 
his book,) which is agreeable to the civil law." 

In the more recent edition of Britton by Nicholas, (vol. 2, 
p. 321) the tree is given, and is in accordance with the rule 
of the civilians. 

The establishment of the feudal system, the right of pri- 
mogeniture, and the yielding of the civil to the ecclesiastical 
power, were the growth of years. The liberty which charac- 
terized the ancient Saxons did not yield readily to such 
encroachments. By the ancient Saxon laws, lands descended 
equally to all the sons. Under William the Norman, the 
right of primogeniture was attempted to be established. 
Under Henry the First this was modified so that only the 
principal homestead went to the eldest son, and the rest was 
equally divided. It was at a still later period before the right 
was fully recognized, and with it, the recognition of the eccles- 
iastical power, and the rule of the canonists. 4 Blacks.^ ASH ; 
Siephen^s DeLolme on the Eng. CansLy voL 1, pag^ 13, 41 
and 43. 

I see no reason to doubt, therefore, that what is known as 
the rule of the civil law, is as well a part of the ancient com* 
mon law, and I believe even older, than the rule of the can- 
onists; which was forced upon the common law by the 
encroachmeuts of the ecclesiastical power. 



IN GENERAL TERM, 1878, 477 

Bruce v. Baker et al. 

For the purpose of determining who is entitled to letters 
of administration, as the next of kin to the intestate, where 
the tme degree of relationship was to be ascertained, the 
rule of the civilians has always been followed in England. 
2 Blackstone, 208, note 6. 

We have adopted the common law by statute, 1 G. & H., 
p. 515. Have we then in force in this State two modes of 
computing degrees of kindred; one to be observed in the 
descent of real estate, and the other in the distribution of 
personal estate? From 1817 to the revised code in 1843, 
the same statute in this State regulated the descent of both 
real and personal estate. Revision of 1824, p. 154 ; revision 
of 1831, p. 207 ; revision of 1838, p. 236- 

In 1843, for some reason, the two provisions were sepa- 
rated, and statutes of descent and distribution were passed. 
Rev. Stat. 1843, pages 440 and 552. 

In the revision of 1852, the descent of the real estate, and 
the distribution of personal property, are provided for in the 
same chapter and sections ; but no rule of computing degrees 
of kindred is prescribed. 

It is true that we might have two modes, the one relating 
to the descent of real estate, and the other the distribution 
of personal effects. But thift would be inconvenient and 
would lead to confusion, without accomplishing any good 
purpose, and it is not likely that such was intended. 

The leading text writers of this country have always laid 
down the civil law rule, as the one generally, if not univer- 
sally followed in the United States. 4 Rentes Com.j 412 ; 
2 Washburn on Real Prop., 405 ; 2 HiUiardy 202 ; Walker't 
Am. Law, p. 356. 

In Pennsylvania, where the common law has been adopted 
by statute, as in our State, and in Ohio where it has been 
held that the common law is in force, it is also held, that the 
rule of the civil law prevails in computing degrees of kin- 



478 SUPERIOR COURT REPORTS. 

Brace v. Baker H al. 

dred, as being more in harmony with the spirit of cor insti- 
tutions, and showing the true degree of relationship by blood. 
McDamel v. Adorns^ 45 Pefm. St., 430; Penn and others v. 
Coz, 10 OAio, 22; Cla^ftan et oL v. Drake etaljl7 O. S. 367. 
Not believing that it w€ts ever intended or contemplated 
that degrees of kindred, under our statute of descent and 
distribution, should be computed in two different ways, but 
that the rule should be uniform, and believing the rule of the 
common law, which was adopted from the civilians, to be the 
better rule, as showing the true degree of relationship by 
blood, we hold it to be the rule that should be followed. In 
the case of HUlhause v. Ckesier, 3 Da^s ( Conn.) R. 167, the 
Supreme Court of Connecticut held, that as real and per- 
sonal estate descended by the statute of that State, in certain 
cases to the next of kinj it could not be supposed that one 
rule was intended to be adopted to ascertain who was next 
of kin as to the personal estate, and another as to the real 
estate; and that as the phrase next of kin was borrowed from 
the English statute of distributions, where it meant the near- 
est relation according to the rule of computation of the civil 
law, such meaning must attach to it when used by the statute. 
The rule of the canonists, as before stated, is no more a rule 
of the common law than is the rule of the civilians. From 
the very earliest period of the English common law, from 
the time its rules first began to be recognized and applied, 
we find the rule which is spoken of as the civil rule, recog- 
nized and followed as a rule of the common law, and applied 
in all cases where degrees of kindred were to be computed, 
except in the instance of the decent of real estate. The 
peculiarities of the English canons of descent, the growth, 
or remnants of feudalism that pervade them, the right of 
primogeniture, and the grasping after ecclesiastical power, 
led to the adoption of the rule of the canonists, and as we 
have cut loose from these, we should let the rule go with 




IN GENERAL TERM, 1873. 479 

Bruce V. Baker el at. 

them, and adhere to the one best adapted to our condition 
of society and institutions*. 

In the third and next place, the claim of the defendants 
Mary Cloud and others, is based upon the principle of repre- 
sentation, as provided for in the second section of the statute 
of descents. Admitting that the rule of the civil law should 
prevail in computing degrees of kindred, they claim that being 

descendants of Johnson, the great-grandfather of John 

W. Johnson, they inherit the share which the great-grand- 
father would have inherited, had he been living at the time 
of the death of John W. Johnson ; that he was of equal 
degree of kindred to the intestate with Nancy Reagan, and 
that these defendants represent him, and are entitled to take 
the share which he would take if he were living. 

Upon this point my opinion concurs mainly with the able 
argument of Oov. Baker in his brief. 

The first section of the statutes of descents provides for 
descent to children. The second section provides, that if 
any child of the intestate shall have died, leaving descend- 
ants alive, they shall inherit the share which should have 
descended to the father or mother. 

Thus far the two sections are canons of descent 

The following is then added to section two : ^ And grand 
children, and more remote descendants, and all other relatives 
of the intestates, whether lineal or collateral, shall inherit by 
the same rule," etc. 

This latter clause is not a canon of descent; that is, it does 
not prescribe who shall inherit, but merely announces a rule 
by which those who are mentioned in the preceding and suc- 
ceeding sections shall inherit. While the principle of repre- 
sentation is one that has always been favored by the civil 
law, and is in accordance with the genius of our statute, it 
is not one to be applied in every conceivable case, and it is 
only to be used where the terms of the succeeding sections 
of the statute make it applicable. 



480 SUPERIOR COURT REPORTS. 

Braoe V. Baker tt aL 

In the third sectioii it shonld be applied. By that section, 
if an intestate dies without lawfbl issoe or their descendants 
alive, one-half the estate goes to the father or mother, or the 
survivor, if either be dead, and the other half to the brothers 
and sisters amd to the deseendamU of such as are dead. Here 
may be an application of the mle to collateral relations. 
Bat for the mle, if an intestate shonld leave two brothers 
and foar nephews, children of the deceased brother, him snr- 
viving, one-half of the estate would be equally divided 
between the six heirs, the two brothers and four nephews. 
With this rule, the half would be divided into three eqnal 
parts, the four nephews taking the part which would have 
descended to their father had he been living. 

The fourth section affords another instance where the 
application of the rule is expressly provided for. 

The latter part of the fifth section does not, in my opin- 
ion, afford any room for the application of the principle. In 
the absence of all persons entitled to take by the preceding 
sections, and of those who are named as entitled to take in 
the first clause of the fifth section, it is provided, that the 
estate '* shall go to the next of kin in equal degree of con- 
sanguinity." I take this to mean, the next of kin who are 
living at the death of the intestate. To say that it means a 
class of persons whose ancestors, if living, would inherit it, 
seems to me would be making a new canon of descent. 
This we can not do by judicial construction. The demurrer 
to the answer of Mary Cloud and others, should, therefore 
be sustained. 



NoTB. — This cauBe was disposed of by judgment at Special Term, in 
accordance with the foregoing rulings, and aftrewards affirmed in General 
Term on Judge Blair's opinion. — Rbpobtsr. 



IN GENERAL TERM, 1873. 481 



Scudder e. The Indiaiiapolia, Peru A Ohicago lUilway Computy. 



IN SPECIAL TERM, 1873. 



Edward D. Scuddbr t;. The Indianapolis, Peru and 

Chicago Railway Company. 

Railroad— ^rocft a warning of danger — 

Neoliobncb — walking on track of railroad^ of pbmHff and 

defendant — 
City Ordinance — violation of in rumiing locomoiivee^ and 

traint. 

A xmilroAd track is of itMlf^ notice, or wsmiDg of danger to any foot pas- 
senger crossing, or walking thereon. Such track is not constructed for 
a foot-way, bat is to be used for running trains of cars and locomotives, 
propelled by an agency, and with a momentum that renders such trains 
and locomotiTes impossible of instant and complete subjection to the 
will of those in chaige of the same. 

A person who assumes to walk upon the track of a railroad, is bound to use 
more care and diligence, and to keep a better lookout for approaching 
danger, than ii walking upon an ordinary road or foot-way. 

On approaching a person walking upon the track of a railroad, the engineer, 
or person in charge of a train, or locomotive, has a right to presume 
that the person so walking upon the track will get out of the way. 
The engineer, or persona in charge of the train, must not steal upon 
him ; and if the usual signals of approach are unheeded, and danger 
imminent, it is their duty to use all means at their command to stop 
the train and avoid injury, even to a person who is on the track with- 
out right. 

A mere habit of using the tracks of a railroad with the knowledge of the 
railroad company, but without invitation from the company, will noi 
lessen the degree of care required of those so using the track. 



482 SUPERIOR COURT REPORTS. 

Scudder v. The Indianapolis, Peru A Chicago Railway Company. 

Inhere the right of a plaintiff to recoyer, is based on the negligence of the 
defendant, the plaintiff must be tree f^om negligence contribating to 
the injury. The right to recover in such case does not depend upon 
measuring the degrees, or amount of negligence between the plaintiff 
and the defendant, and ascertaining which was roost negligent, or whose 
negligence contributed most to cause the injury. 

A person who is walking upon the track of a railroad, or about to step upon 
such track, must orcrcise care in looking to see if trains or locomotives 
are approaching, and a failure to look, under such circumstances, is 
negligence. 

The running of a locomotive, or trains of cars, at a rate of speed declared 
to be unlawful by the ordinance of a city, or running the same back- 
ward without a watchman on the rear, contrary to such ordinance, is 
not, merely on account of the violation of* the ordinance, an act indi- 
cating, or tending (o prove a wilfUl purpose, or intent to commit an 
injury, if without the ordinance, the running under such circumstances 
would only be an act of negligence. The violation of such ordinance 
is not of itself evidence of anything more than negligence, and is not 
conclusive evidence of negligence. 

If an engineer in charge of a locomotive, or train of cars, looks ahead and 
sees a man walking at the side of the track, it is not his duty to infer 
that the man will walk into danger in front of his engine when it is 
approaching near, and giving the usual signal of approach. 

Where a person walking by the side of a railroad track, heedlessly or neg- 
ligently steps upon the track in fh>nt of an approaching locomotive, he 
cannot recover unless those in charge of the locomotive saw his peril, 
or could, by the use of ordinary diligence, have seen it in time to pre- 
vent the injury, after it became apparent that he was in danger. 



(The motion for a new trial was filed in Special Term, and at the request 
of Judge Newcomb, who heard the cause, the motion was heard by the full 
bench, and the following opinion rendered by Blair, Judge. — Rkfobter.) 

Blair, J. — The plaintiff was injured within the corporate 
limits of the city of Indianapolis, by a locomotive and ten 
der of the defendant, which was being run upon the track 
of the Cincinnati, Cleveland, Columbus & Indianapolis 
Railway Company. The point where the injury occurred 
was north of Ohio street, between Ohio and Winston streets. 
At the point where the plaintiff was injured, and south of 
it, there are two tracks, the western one used for the trains 




IN GENERAL TERM, 1873. 483 

Scudder r. The Indianapolis, Peru & Chicasfo Railway Company. 

going north, and the eastern one for the trains going soath. 
North of the point of injury, other tracks branch ofi and 
pass to the northeast, crossing Winston street diagonally, 
and continue on through the square bounded on the west by 
Winston street, south by Ohio street, and north by New 
York street, crossing New York street, and entering the 
depot and yards of the latter company. At the west line of 
Winston street there are three tracks, and by the time the 
south line of New York street is reached, there are eight 
tracks. From Ohio street to Winston street the tracks pass 
through lots belonging to the C. C. C. & L Railway Com- 
pany, distance of sixty-five feet. 

From the west line of Winston street to New York street, 
on the route of the tracks, the distance is five hundred and 
fifty feet 

The plaintiff was employed at a saw-mill north of New 
York street, and was familiar with the entire locality, and 
the manner in which the tracks were used, and knew that 
locomotives and trains were continually passing thereon. 
On the day of the injury, he started, with a companion by 
the name of Kirchoff, to go to some point south of Ohio 
street On New York street his companion stopped to talk 
with one Resener, and the plaintiff walked southward on 
the third track from the east, continuing on that track until it 
became united with the western tracks, and until he reached a 
point on Winston street, and from there he walked between 
the tracks across the lots of the Company, to the point where 
he was injured, between Ohio and Winston streets. At the 
point on Winston street, where the plaintiff stepped between 
the two tracks, he heard a passenger train moving north on 
the west track (that being the one he was then on), and he 
stepped off to the east, a distance that he thought would be 
safe from any danger from the passenger train, and continued 
on his course southward. The locomotive of the defendant, 



484 SUPERIOR COURT REPORTS. 



Scudder v. The Induuii^wlis, Peru St Chicago Railwaj Goaipanj. 

from which he received the injury, was backing from the 
yards north of New York street, and was passing apon the 
second track from the east ; from the east line of Winston 
street, or before the locomotive passed npon the eastern trad[, 
there being bot the two tracks at the point where the plain- 
tiff was injured, the bell of the defendant's locomotive was 
ringing, but there was no one upon the tender as a lookout, 
and there was a backboard enclosing the back of the cab, to 
protect the employes from cold, it being very cold weather 
at the time. The space between the two tracks, where the 
plaintiff was walking, was such that engines and cars could 
pass each other, leaving a space of at least three feet seven 
inches between them. 

The passenger train approached the plaintiff from the 
south, and as the engine came opposite him he stepped 
over toward the eastern track, approaching so near it that 
the locomotive and tender of the defendant, coming up 
behind, struck him, causing the injury complained of. 

The plaintiff's companion, Kirchoff, after his conversation 
with Resener, on New York street, followed on after the 
plaintiff, and when about midway between New York and 
Winston streets, the defendant's locomotive and tender passed 
him, and the plaintiff was then not far from the middle of 
Winston street, or about two hundred and seventy-five feet 
distant This was about the time the plaintiff heard the 
passenger train coming north on the track he was then walk- 
ing on, and he stepped between the two tracks and kept on 
his course. 

Kirchoff says he watched the plaintiff from the time he 
left New York street ; he saw him step from the track the 
passenger train was going out on, and says : ^ At first he 
walked along right between the track the pony was on, and 
then he went over a little too far, and the pony was backing 
down and the Bee Line accommodation coming at the same 
time." 



IN GENERAL TERM, 1873. 485 

Seadder v. The Indianapolis, Peru A Chicago Railway Company. 

At the point where the plaintiff stepped off the western 
track and started on between the two tracks, he could, by 
looking back, have seen the defendant's locomotive as far 
back as New York street, or even two hundred feet beyond, 
and the line of vision could not have been perceptibly changed, 
or shortened, from that point to the place where he was 
injured. The plaintiff says he had looked back just before 
he was injured, but saw nothing coming from behind. Kir- 
choff followed the plaintiff from New York street, and says 
in his testimony, that he watched him and did not see him 
look back. 

The plaintiff was in full possession of the senses of sight 
and hearing, and says he did not stop at all, but kept mov- 
ing right along. 

The engineer testifies, that when he crossed New York 
street, he saw the tracks all the way to the point where the 
plaintiff was injured, and he only saw one man, and he was 
walking upon the track west of the one upon which the 
engine was moving. The engineer and his engine, when at 
New York street, were about five hundred and eighty feet 
from the place where the plaintiff was struck. There is 
nothing in the evidence to show that the engineer took any 
further notice, until the plaintiff was injured, and the flag- 
man signaled the engine to stop. There is some conflict in 
the evidence relating to the speed with which the engine 
was being run. The plaintiff and Kirchoff place it at about 
eight miles per hour ; other witnesses about four. The ordi- 
nance of the city was introduced in evidence by the plain- 
tiff, declaring that it is unlawful to run trains in the city at 
a greater rate of speed than four miles per hour, and also to 
run a train backwards without a watchman, or other person 
on the rear end of the train. 

There was, therefore, evidence from which a jury might 
find, that the engine was being run at a greater rate of speed 



486 SUPERIOR COURT REPORTS. 

Scudder v. The Indianapolis, Peru & Chica^ Railway Company. 

than foar miles per hoar, and in considering a motion for a 
new trial, we will examine the case as if the jury had so 
found. As to the other facts, there is no conflict in the evi- 
dence, except as the testimony of the plaintiff and of Kir- 
choff, a witness for the plaintiff, may conflict upon the ques- 
tion whether or not the plaintiff looked back about the time 
he stepped between the two tracks. 

The complaint is in two paragraphs. The first is founded 
upon the theory of a recovery for an injury resulting firom a 
negligent act of the defendant's servants, without any fault 
on the part of the plaintiff contributing thereto. The second 
seeks a recovery on the ground of ^ careless, negligent, will- 
ful, reckless and intentional acts" of the defendant's servants, 
irrespective of any allegation that the plaintifi' was without 
fault. 

The cause was tried in room No. 2, and resulted in a ver- 
dict for the plaintiff. The defendant has filed a motion for 
a new trial, and at the request of the Judge who heard the 
cause, the motion was heard by the full bench. 

In support of this complaint we have the following undis- 
puted facts : 

The plaintiff, knowing the manner in which the tracks 
were used, knowing that a great number of trains were con- 
stantly passing thereon, walked upon the line of the tracks. 
Seeing a train approaching upon the track he was walking 
on, he passed from it to the space between the two tracks, 
where there was barely room to stand or walk without being 
endangered by passing trains, and from thence he stepped 
within the range of cars passing upon the other track, with- 
out looking to see if there was any train about to pass 
thereon ; or if he did look, it was but a careless glance and 
availed nothing, when reasonable care in looking, would 
have disclosed the danger in ample time to have avoided it. 

The servants of the defendant, were running their loco- 



IN GENERAL TERM, 1873. 487 

Soudder v. The Indianapolis, Peru A Chicago Railway Company. 

motive and tender upon the track where they might lawfully 
run it. It was being run at a rate of speed declared by an 
ordinance of the city to be unlawful ; the bell was being rung, 
and when about five hundred and eighty feet from the point 
where the injury occurred, the engineer looked and saw that 
his track was clear, and passed on, not seeing the plaintiff 
until after he was injured; and there was no lookout or 
watchman on the rear of the tender. 

£xcept in so far as the circumstances under which each 
part^ was placed, necessarily require it, the same rules of 
law apply both to the plaintiff and the defendant. A rail- 
road track is of itself, notice, or warning of danger, to any 
foot passenger crossing, or walking thereon. It is not con- 
structed for a foot-way, but is to be used for running trains 
of cars and locomotives, propelled by an agency, and with 
a momentum that renders such trains and locomotives 
impossible of instant and complete subjection to the will of 
those in charge, nor can they be turned aside to avoid injur- 
ing any one. 

It is easy for a person who is walking, to control his steps 
and his course. 

III cases of ordinary travel, upon a highway, it is a well 
recognized and wholesome rule of law, that '<a person 
who leaves the ordinary side of the road is bound to use 
more care and diligence, and to keep a better lookout to 
avoid concussion, than would be requisite if he were to con- 
fine himself to the proper side." Wpnn v. AUardj 5 Watts 
wad Sergi., 524. 

The principle contained in this rule, is much more appli- 
cable to one who assumes to walk upon the track of a rail- 
road, where a neglect to use care is likely to be attended 
with more fatal results. The purposes for which railroads 
are constructed and the exacting demands of the public, 
would be but illy served, if engineers were required, by a rule 

15 



488 SUPERIOR COURT REPORT& 



Seodder «. The IndiaiwpoIi% Pern A Chicago BaOwky Compaiiy. 

of law, to stop on approaching within a few hundred feet of 
a foot passenger, and give him time to pursue his journey, or 
leisurely get oat of the way. On approaching a person 
walking upon the track, the engineer has a right to presume 
that he will get out of the way. He niust not steal upon 
him ; and if he sees that the usual signals of approach are 
unheeded, and danger eminent, it is his duty to u^e all the 
means at his command to stop the train and avoid injury, 
even to a person who is on the track without right 

It is claimed by the defendant, that the plaintiff, in passing 
along the tracks on the private grounds of the Railroad Com- 
pany, was a trespasser, and for that reason he cannot recover, 
unless the inflction of the injury, was a willful act on the 
part of the servants of the defendant. In view of the fact that 
there was evidence tending to show that, with the knowledge 
of the Railroad Company, persons were in the habit of passing 
where the plaintiff was injured, we are not prepared to say 
that he was a trespasser, but we would say, that a mere habit 
of so using the tracks, without invitation from the company, 
would not lessen the degree of care required of those so 
using them, nor would it increase the defendant's liability as 
far as the facts and the law of this case are concerned. 

Where the right of a plaintiff to recover is based on the 
negligence of the defendant, the plaintiff must be free from 
negligence contributing to the injury. This principle is so 
well settled that it needs no citation of authorities. It is not 
questioned. It is a principle older than railroads and loco- 
motives, and applicable as well to individuals as to corpo- 
rations. It is the growth of long experience, in settling mat- 
ters of difficulty growing out of the negligent acts of parties, 
and we are not at liberty to vary or change the rule. The right 
of a plaintiff to recover in such case, does not depend upon 
measuring the degrees, or amount of negligence, between the 
plaintiff and the defendant, and ascertaining which was most 



\ 



IN GENERAL TERM, 1873. 489 

Scudder o. The Indianapolis, Peru A Chicago Railway Company. 

negligenti or whose negligence contributed most to cause the 
injury complained of. The question is this : Was the defend- 
ant negligent, and was the plaintiff free from negligence that 
contributed to his own injury ? 

How, then, stands the case of the plaintiff, on the facts 
about which there is no conflict ; or if conflicting, taking 
them most fovorably to the plaintiff and roost unfavorably 
to the defendant ? 

1st The plaintiff voluntarily placed himself in a place 
of great danger, by walking on the western track of the 
railroad. 

2d. He removed himself from that place of danger, to a 
place between the tracks, where, by the exercise of proper 
care, he was safe. 

3d. He negligently stepped from that place of safety, to 
another place of danger, and was there injured by the loco- 
motive and tender of the defendant 

His negligence, in the latter instance, consisted mainly in 
not looking, or looking so carelessly that it availed nothings 
when by the exercise of care in looking, he could readily 
have seen the approaching danger and avoided it. 

The authorities are numerous, showing that a failure to 
look, under such circumstances, is negligence. Belief orUainey 
ifi:.^ Co. V. Hunter, 33 Ind., 335 ; Toledo Sf etc. Go. v. God- 
dardj 25 Ind^ 185 ; Slout v. Indianapolis 4* St. Louis R, R. 
Co.j 1 Sup. C. Marion Co., 80. 

This proves that there could be no recovery under the evi- 
dence, unless it was shown that the conduct of the defend- 
ant's servants was more than merely negligent, unles it was 
shown that their conduct was such as to warrant us in imply- 
ing a willful purpose to commit the injury on the part of the 
servants of the defendant. 

Applying the same rule as before, that is, giving the evi- 
dence the greatest force in favor of the plaintiff and against 



490 SUPERIOR COURT REPORTa 



Scudder v. The Indiuiapolu, Pent A Chicago Bailwmy Comfaaj. 

the defendant which the xnles of law will permiti and we 
have: — 1st, The locomotive and tender were being ran at a 
rate of speed declared to be unlawful by an ordinance of the 
city; 2d, The locomotive was being run backwards, and 
there was no watchman on the rear of the tender; 3d, The 
engineer in charge was negligent in not looking oat to avoid 
injuring any one. 

The locomotive was not being run at a rate of speed that 
could, under the circumstances, be considered reckless, nor is 
it clear that it was a violation of the ordinance to run it 
backwards without a watchman on the rear of the tender. 

The ordinances in evidence were evidently passed for the 
purpose of protecting persons from injury by the running of 
trains at an tinsafe speed, and without proper care to avoid 
injury to persons and property ; and such ordinances should 
be enforced. 

The violation of these ordinances does not necessarily 
result in injury, nor is it necessary that an injury should 
result, in order to constitute a violation. 

Their violation does not, merely on account of the viola- 
tion, change the act which is declared to be unlawful, from 
an act of negligence, (if without the ordinance it would only 
be an act of negligence,) to that of an act, indicating, or 
tending to prove, a willful purpose, or intent, to commit an 
injury. Similar ordinances and statutes are not uncommon. 
In many of the States, a penalty is imposed by statute, upon 
railroad companies, if they neglect to ring the bell upon their 
engines, a certain distance before reaching a road-crossing. 
While numerous cases have arisen, where partie-s have been 
injured, and the defendant was guilty of violating similar 
statutes and ordinances, we have found none where sach 
violation has, of itself, been held to be evidence of anything 
more than negligence ; and such violations are not even con- 
clusive evidence of negligence. Taffe v. Madison ^ L K 



\ 



IN GENERAL TERM, 1873. 491 

Scudder v. The Indianapolis, Peru & Chicago Railway Company. 

jR. Co.j 37 IfuLj 361 ; Ernst v. Hudson River R. R. Co., 35 N. 
Y.,9; Wrightw.Maldeniix.,KR.Co.,4AUen,2i3; Sherman 
and Redfield on Negligence, p. 543, § 485 ; Langhoffj Admr. v. 
The MUwaukee <J- Prairie DuChien R. R. Co. et al. 1» Wis., 
489; Broum v. J5tt/ato i^. K K Co., 22 M Y., 191; Tike 
Augusta 8f Savannah R. R. Co. v. McElmurry, 24 Ga., 75. 

While, for the purpose of putting the facts as strongly as 
possible against the defendant, we have said that the engineer 
was negligent in not looking out to avoid injury to any one» 
it is impossible to construe it into anything more than 
negligence. An engineer and fireman have other duties to 
perform, as well as to look to the track ahead of them, and 
it would be applying a rule of difficult, if not impossible^ 
application, to say that one or the other of them should con- 
tinually be looking along the track. The engineer says, that 
on crossing New York street he did look, and saw that the 
track he was using, was clear beyond the point where the 
injury occurred. There is nothing in the evidence, that tends 
to cast a doubt upon the truth of this statement. He says 
he saw one man, but he was not on his track. He had no 
reason to assume, nor was it his duty to infer, that the man 
he saw, or any one else, would walk into danger in front of 
his engine, when it was approaching so near, and giving the 
usual signal of approach by ringing the bell. 

The track on which the locomotive and tender was being 
run, was clear, and there was no one in danger, or imminent 
peril, until the plaintiff, by less than the distance of one step, 
placed himself in danger, and that, so suddenly, that the 
engineer could not have stopped his engine in time to have 
prevented the injury. If the engineer had been carefully 
watching the plaintiff all the time, he would have seen that 
he was in a place, where he might be passed in safety, and 
as before stated, he would not, under such circumstances, be 
bound to infer that the plaintiff would suddenly step so near 
bis track as to be in danger. 



492 SUPERIOR COURT RBPORTa 

Seodder «. The Indianapolii, Pera A Ghieago BftilwAj Compuiy. 

There has been some uncertainty and confusion in the 
adjudged cases, in attempting to define the right of the plain- 
tiff to recover, though he has himself been negligent. Much 
of this has arisen from the incautious use of terms and 
expressions, in cases where the question was unimportant 
It is not necessary in this case, to make a critical examin- 
ation of this question. Cases where a recovery under such 
circumstances is possible, do not often occur, and an attempt 
to bring every case within the rule permitting such recovery 
but serves to confuse, without accomplishing any good pur-^ 
pose. 

In the case of Bellefantaine^ etc.^ Co. v. Hunter^ ^i^ira, it is 
said, that where the plaintiff has been negligent there can be 
no recovery, ^unless the railroad company has been guilty 
of such conduct as will imply an intent or willingness to 
cause the injury ; and this can only be attributed where the 
company has notice of the particular emergency in time, by 
the use of ordinary diligence, the means being at hand, to 
avoid a collision." 

The latter part of the seventh instruction given by the 
Court, in this case, is to the same effect, and is a correct and 
clear statement of the law. It reads as follows : 

^ It is important to inquire at this point whether the space 
between the two tracks was sufficient there, to enable the 
plaintifl to avoid danger from the passenger train, without 
approaching so near the other track as to be in danger from 
trains that might pass on the latter. If there was such suffi- 
cient space, and the plaintiff heedlessly or negligently went 
so near the latter track as to meet the injury of which he 
complains, or could by the use of his sense of sight or hear- 
ing have discovered the approach of defendant's locomotive, 
then his carelessness was such as to preclude a recovery in 
this action, unless the persons in charge of defendant's loco- 
motive saw his peril, or could, by the use of ordinary dili- 



^ 



IN GENERAL TERM, 1873. 493 

Scudder v. The Indianapolis, Peru A Ohicago Railway Company. 

gence, have seen it in time to prevent the injary, after ii 
became apparenl that he was approaching the track too close 
for safety^ 

In this connection we refer also to the language of the 
Court in the case of The Northern Central Railway Co. y. 
The State, 31 Md., 357, at p. 366. 

*^ But it is true that, in some cases, there may be negli- 
gence in both parties concerned, and yet an action may be 
maintained ; but in such cases it must appear either that the 
defendant might, by a proper degree of -caution, have avoided 
the consequences of the injured parties, neglect, or that the 
latter could not, by ordinary care, have avoided the conse- 
quences of the defendant's negligence. This, however, 
implies time for the one party to become aware of the con- 
duct and situation of the other, for neither could be required 
to anticipate the other's negligence. But where there is a 
concunence of negligence of both in the production of injury 
to one of the parties, the causes are commingled, and are 
regarded as equally proximate to the effect produced, and 
are therefore not susceptible of apportionment." 

Many other cases might be cited of the same purport. 
Under the rule, as thus defined, the facts in the case at bar 
do not show an *' intent or willingness," to cause the injury 
received by the plaintiff. 

The acts of the defendant's servants were acts of negli- 
gence and nothing more, and hence there could be no recov- 
ery on the second paragraph of the complaint 

We have not given the instructions a critical examination ; 
but in the main they are undoubtedly conect. The eighth , 
given by the court, reads as follows : " 8. If the plaintiff 
was walking by the side of the track upon which defendant's 
engine approached him, and not on it, the employes of the 
defendant were not required to anticipate that he would step 
upon the track or within the reach of defendant's engine. 



494 SUPERIOR COURT RBPORTa 

Scudder v. The IndianapolU, Pera A Ghicigo Bailwfty Compuiy. 

and had a right to assume that he would not step upon the 
track, or within the reach of the engine, and if just as the 
engine approached him he stepped upon the track or within 
the reach of the engine, and if promptly, upon the signal of 
danger being given, the defendant's employes stopped the 
engine, but the time was so short that the plaintiff was, not» 
withstanding this, injured, he can not recover on the first 
paragraph of the complaint" 

The state of facts on which the instruction was based fol* 
lows those which were clearly proven in the cause, and pre- 
clude a recovery equally as well upon the second as upon the 
first paragraph of the complaint Limiting their application 
to the first paragraph, may have led the jury to infer that they 
had no application to the second ; and that the recovery upon 
the second was still an open question, though these facts were 
found to be true ; there being no similar instruction applied 
to the second paragraph of the complaint 

We are, therefore, of opinion that the motion for a new 
trial i$hould be sustained. 



NoTK. — The Court, in Special Term, upon its own motion, instructed the 
jury as follows: 

1. ** It has heen conceded in the argument by the defendant's counsel 
that the plaintiff was struck by the tender of a locomotive belonging to 
and used by the defendant; that the plaintiff was knocked down by the 
stroke, and that the tender and locomotive passed over his arm, crushing it 
so that amputation of the injured ipember became necessary. 

It is also undisputed that the accident or injury occurred on a part of the 
track of the Cincinnati, Cleveland, Columbus & Indianapolis Railway Com- 
pany, more briefly known as the Bellefontaine Kailroad Company, in the 
city of Indianapolis, so on these points you will have no difficulty in com- 
ing to a conclusion. 

2. A question has been raised in the argument whether defendant's loco- 
motive had a right to be in the place where plaintiff was injured. 

If defendant was using said track by the consent, express or implied, of 
the company owning the same, fur the purpose of transferring freight can 
from one part of the city to another, or for any other lawful purpose, then 



IN GENERAL TERM, 1873. 495 

Scudder v. The Indianapolu, Peru A Chicago Railway Company. 

defendant was, for the time being, in the lawfal posseeiion of the track, and 
had the same rights there, as to strangers, as the corporation owning the 
road would have had if the looomotive belonged to it instead of the 
defendant 

8. Some question has been made, also, as to whether the plaintiff was not 
unlawfully trespassing upon the railroad track at the time and place where 
he was injured. If you find that the injury happened on the private groundi 
of the Bellefontaine Company, and not on a public highway, the plainUfT 
was a trespasser, unless he was there by the express or implied license of 
that company; but if you find, f^om the evidence, that the railroad track, 
and the spaces between them at that point, had, for a long time previous, 
been freely used by pedestrians who had occasion to pass from Washington 
or Ohio iitreets to the neighborhood of the Bellefontaine freight depots and 
shops, and that such use had been acquiesced in by said company, without 
protest or warning against it, you will be authorized to infer a license by 
said company for such use of its tracks, subject, of course, to the free and 
onobstructed use of said tracks for railroad purposes. 

4. But a person so entering upon a railroad track at such a place, must 
observe care and caution for his own safety proportioned to the danger he 
incurs by this act, and must not omit any reasonable precaution to avoid 
contact with trains upon the road. 

6. To enable the plaintiff to recover on the first paragraph of his com- 
plaint, you must find, from the evidence, that the defendant's servants, at the 
time the plaintiff was injured, ran said locomotive carelessly and negligently, 
and that the plaintiff was not himself guilty of any negligence that directly 
contributed to the injury. 

6. What is negl igence in this case depends on the circumstances surround- 
ing the transaction, the place where the act complained of occurred, the 
degree of danger likely to be incurred by using the railroad as a footway; 
and in regard to the acts of the plaintiff which are imputed to him by the 
defendant as negligence, on the previous knowledge he had of the extent to 
which the tracks were usually employed in the passage of trains, the fre- 
quency and regularity, or irregularity, of such trains, and the facilities for 
seeing the tracks in each direction from him, and for seeing trains approach- 
ing in either direction thereon. 

Did the plaintiff know that locomotives and trains very often passed in 
both directions along the part of the road he was on when injured, snd at 
irregular intervals ? If he did, then greater care and caution was required 
of him than if he had been on a track where trains were infrequent, or 
when they came at regular intervals, and he entered upon the track between 
iuch intervals ; and, on the other hand, if foot passengers were frequently 
met at the place where plaintiff was injured, greater care was required of 
the defendant to prevent injury than would be requisite in places where 



496 SUPERIOR COURT REPORTS. 

Scodder v. The Indianapolia, Pera A Chicago Bailway Compuiy. 

foot ptiMikgen were •eldom met| and woQld not raaaooably be eaEpected to 
be foond on the track. 

7. One of the unoontroverted fiusts in this case is, that the plaintiir started 
to walk down the railroad to Ohio street on a track other than the one open 
which he received the injury; that between New York and Ohio streets he 
eaw a passenger train of tiie Bellefontaine Company approaching him; that 
to get out of its way, he stepped off that track into an open space between 
that and the track to the southeast, and that in avoiding the passenger traing 
he approached so near to the latter track as to bring his person in contact 
with the tender of the defendant's locomotive, which was backing down 
toward Ohio street, and thus received the injury complained ot 

It is important to inquire at this point whether the space between the two 
tracks was sufficient there to enable the plaintiff to avoid danger ftoni the 
passenger train, without approaching so near the other track as to be in 
danger from trains that might pass on the latter. If there was such sufficient 
epace, and the plaintiff heedlessly or negligently went so near the latter 
track as to meet the injury of which he complains, or could by the use of 
his sense of sight or hearing have discovered the approach of defendant's 
locomotive, then his carelessness was such as to preclude a recoYery in this 
action, unless the persons in charge of defendant's locomotive saw his peril, 
or could, by the use of ordinary diligence, have seen it in time to prevent 
the injury after it became apparent thai he was approaching the track too 
-doeefor safety, 

8. If the plaintiff was walking by the side of the track upon which 
defendant's engine approached him, and not on it, the employes of the de- 
fendant were not required to anticipate that be would step upon the track or 
within the reach of defendant's engine, and bad a right to assume that he 
would not step upon the track or within the reach of the engine, and if^ just as 
the engine approached, be stepped upon the track or within the reach of the 
engine, and if promptly, upon the signal of danger being given, the defend- 
ant's employes stopped the engine, but the time was so short that the plain- 
tiff was, notwithstanding this, injured, be can not recover on the first para- 
graph of the complaint. 

9. At the point where the plaintiff was waUciug at the time of the 
injury, the railroad company was entitled to the exclusive use of the road 
bed and tracks, and the plaintiff was bound to take notice of this right, and 
that the use to which the railroad company put it was one of great danger 
to passers. Ho was bound to use his senses of sight and hearing to antici- 
pate the approach of engines, and if, with carefUl use of those senses, he 
might have known that the defendant's engine was approaching, and did 
not, he was guilty of such negligence as will prevent a recovery on the first 
paragraph of the complaint. 

10. CerUin ordinances of the city of Indianapolis have been put in 



^ 



IN GENERAL TERM, 1873. 497 

Scudder o. The Indianapolis, Peru & Chicago Railway Company. 

evidence limiting the speed at which railroad trains may run through or in 
•aid city, and also requiring trains, in backing, to have a watchman or per- 
son on the rear of the train in order to avoid accidents. It was the duty 
of the defendant to observe those ordinances, and the public had a right to 
expect obedience to them, and if you find that the injury to the plaintiff 
was occasioned by the failure of the parties in charge of defendant's loco- 
motive to observe the requirements of those ordinances, or either of them, 
and there was no want of ordinary care on his part to avoid the injury 
then you should find for the plaintiff; but if you believe, from the evidence, 
that the injury would have occurred all the same if said ordinances had been 
obeyed, then the ordinances can add nothing to the defendant's liability 
in this case, an4 you will decide it on the general principles I have laid 
down, irrespective of such ordinances. 

11. In short, the law exacts ordinary care on the part of a railroad com- 
pany in the running of its trains, and the same degree of care is required 
of persons going upon the railroad track. If an injury occurs by the want 
of this degree of care on the part of the company, in a case like the present, 
and ordinary care is used by the injured party to avoid danger, the latter 
has a right to recover such damages as he may sustain by the careless act of 
the railroad company; but if the carelessness of the injured party immedi- 
ately contributed to the injury, he can not recover. A plaintiff can not 
recover in a case like this, on the ground of any negligence, if it appears 
that by the wantf of ordinary care or prudence on his part, he directly con- 
tributed to the injury, or, in other words, if by the exercise of ordinary care 
and prudence he might have avoided the injury. 

"Where liegligence is the issue, it must be unmixed negligence to justify a 
recovery; and if both parties, by their negligence, immediately contributed 
to produce the injury, neither can recover. 

12. The second paragraph of the complaint does not claim that the 
plaintiff was without fault, but the right of recovery is based on the ground 
of the willful or wanton misconduct of the servants of the defendant. To 
sustain this pafagraph of the complaint, the evidence must satisfy you by 
M fair preponderance, of the truth of one at least of the following proposi- 
tions: 

1. That the person or persons in charge of defendant's locomotive, pur- 
posely ran over the defendant, when the engine might have been stopped 
in time to prevent the injury; or, 

2. That the servants of the defendant were ignorant of the presence of 
plaintiff on the track,