Indiana State sentinel. [volume] (Indianapolis) 1841-1853, 1845-12-18
SUPREME COURT OF INDIANA.
cAsEs DETERMINED NOVEMBER TERM, ls45.
Reported for the Indiana State Sentinel

cAsEs DETERMINED AT THE NOVEMBER TERM. ls45.
Reported for the Indiana State Sentinel,
A. cARSAHAS.
TUESDAY, Dec. ID, Is45.
Opinion by DEWEY J..
In proceedings. application for writ of dd quOd dam
num- in relation to the erection continuing mill DAM the
petition, the writ and the inquest Of the jury, or at least
the latter must embrace all the proprietors Of land both
above and below the site Of the DAM who be- have
been, in any way injured by it. affirmed COlerck and
Wapole for the plaintiffs Bigger, Breckenridge Combs and
kieTsed for the defendants
Fletcher and another Pdft Error to Fountain c.
{. Opinion by DEWEY J.
AssumpSit will not be upon a specslty
If there be misjOnder Of actions there should not be
separate demurTers each count but demurrer
whole declaration.
written promise of indemnity is assignabe.
Reversed D. Brer and r. c. Gregory for the plaintiffs s.
S. Bsier for the defendant.
Mcdonald q. EogiRs Error 10 the Monroe c. c. 0pin-
ion by BLACKBOARD J.
Each county in the right to send students
be educated fee OF charge in the Law department of the
Indiana University, well other departments of
the institution. Affirmed Hester for plaintiff, Watts for
defendant.
Jackson ct al. Ydndes ct al Error to the Tppecanoe
C. c. Opinion by BLAcKFoRD J..
guarantee directed Messrs. Yandes and Barbee
delivered to the plaintiffs, William Babee, Daniel Yandes,
and James W. Yandes who furnished the goods request
ed by the guarantee The declaration alleged that the
promise made to the plaintiffs by the of Messrs
fandes and Barbee Held that the allegation was sustain
ed by The facts.
In the of a conclusive guarantee-not a
tue to one-notice Of its acceptance is not necessary.
Whether the notice the defendants of the ment
by the for whom they guarantOrs
bic or not, is mere question Of fact for the jury
And such insOvent notice of his default
10 the guaTantors is necessary.
The Judgment in this far too mueh but If the over
plus be remted the judgment can be affirmed otherwise
must be reversed Ingram and Jones for the r. C.
Gregory for the defendants.
"WEDNESDAY, Dec g.
The State rel Of adams Johnson ct al Error to the
Dearborn C. c. Opinion by DEWEY j. If administrator
lend the money of estate while there debts Of The
pay and the money be repaid is pervesion
of the assets from their proper use and amounts under the
statute 10 For such misappcation of ad
minsraOr, who is subsequently removed is liable with his
surety, his official bond, the relation of the admins
de bonis without previous judgment against him.
If appear in pleadings that Probate Court has Temov
ed administrator, the presumption the court ap
pointed him. Reversed
Black .. WILSON Appeal from the Wayne c. c. 0pin-
by BLACKBOARD j. !. The maker Of promissory note
died leaving considerable personal property but su
cient pay all his debts His real estate sold after his
death but did bring sufficient pay the liens it. 2
The maker Of the note died the fifth day Of the term Of
after the assignment Of the by the payee
the plaintiff The dates of the liens not proven. In
suit against the assgno the plaintiff relied the above
facts show the makers insolvency for not
suing him. Held that Judgment might have been obtain
ed for any thing shown before the liens created and
that execution such judgment might have been put into
the hands of the sheriff before the makers DEATH the excuse
of not suing the maker Insufficient. Held also, that
the Circumstance that several suits other persons against
the deceden had abated not sufficient evidence Of it.
SELF show that the plaintiff could have obtained udg
ment against him. Reversed
THURSDAY, Dec. 4.
Parks o. HazeIrigg Error to the Hendricks c. c. Opin-
ion by SULLIVAN J. l. At law signing not
essential the validity of deed 9 We have statute
which changes the law in this respect bond therefore
that has been sealed by obor though not sgnd by him
is valid. Reversed.
ConpeH .. Buckingham Error 10 the Ripley C. C. 0pin-
ion by SULLIVAN J. Where jury has weighed and de-
cided upon testimony that apparently contradictory, this
court will not grant trial upon the ground that the
evidence not sufficient to sustain the verdict Where
account of than FIVE years standing presented
to the defendant who did object the but said
he thought he had pld it, and that he had receipt at home
Held that this not sufficient promise to take the
Of the statute of limitations To take the out of
the statute there must be express promise TO pay,
such admission that promise TO pay may be implied
from it. g. Where it i, established that there is debt
from the defendant plaintiff which OPP
crates proof OF payment by the defendant on account OF
principal interest," part performance of the promise laid
declaration written five years before commence
ment of the action will take the of the Of
limitations for such payment deemed recognition OF the
existence of the of action and be equivalent to
promise. Affirmed.
Hays .. Walker. Error to the Dearborn C. C. Opinion
by SULLIVAN l. note made and endorsed to be negO
TABLE, and actually negotiable at more than legal interest
usuriOus. Such note however void but the prnc
pal sum without interest may be recovered. Reversed
Ellis the State Error the Tippecanoe c. C. Opin-
ion by SULLIVAN j. On indictment for erecting build
ing in which offensive trade carried alleged be
nuisance the defendant in bar of the Indictment
that when the building erected il remote from hab
ations, and that afterwards the persons offended by il built
their habitatons within the reach Of its noxous effects
Reversed.
Sutton .. Hays ct al Error to the CLARK c. c. Opinion
by BLAcKFoRD j. Process against A, B. and c. served
the two former and returned not found" the latter
Held that the plaintiff entitled continuance in
der to procure the attendance of G. Reversed
Vdnsman o. Fdirbrother. Error to the Koscusko C. C.
Opinion by DEWEY j. If court of equity order the bill TO
be dismissed motion of the complainant in
order with prejudice, such order of dmissiOn per-
emptoy and does not operate like decree Of dSmssOn
final hearing bar other proceedings for the
Nor can the complainant prosecute writ Of upon
such order. Reversed
FRIDAY, Dec s.
Murray Buchanan. Error to the Huntington C. Court
Opinion by SULLIVAN J. l. If plaintiff die after erf ia
Gas issued but the executor or administrator shall have the
money if the plaintiff has made executor, admin
Tator be granted, the money be brought
count and deposited until there be representative receive
it. 2 To admit proof of the contents of paper which has
been lost destroyed it necessary positive proof Of
destruction Of the cannot be had show that bona
and dgent search has been made for the instrument in
vain, where was likely to be found and in general the
loss Of it must be by the in whose hands
was at the time OF its loss TO whose custody it is traced
il the person be living
seems that for any description Of injury the personal
property of deceased person, whereby rendered less
beneficial TO the executor administrator, done even
before administration granted executor administrator
recover for the injury notwithstanding the action
form delicfO. Reversed
FdrIot0 . Kemp Error 10 the PaTke C. c. Opinion by
SULLIVAN J. l. The defendant received from Mr. y. in
North Carolina Of money which he promised to carry
and pay f. in Indanapo for certain rcasona
Bile reward to be paid By The contract made
Mr. F. and there was avement in the declaration that
the money belonged F. that he recognized the agen-
cy of the defendant. He'd, demurrer the deciara-
0n that j. F. cosld not maintain action for the money
II is general rule upon all actions upon contracts that
consideration Of the promise from the psni or
he cannot maintain action upon il. 3. Where party
brings contract made with another person for his bene-
ship, for example, OF debtor and creditor principal and
agent &c. to exist, or prove an express promise pay
money affirmed.
DIXON o. Bower. Error to the Clark c. c. Opinion hv
svLivAr j. In the Of Judgment by default If