Indiana State sentinel. [volume] (Indianapolis [Ind.]) 1845-1851, 1845-06-04
SUPREME COURT OF INDIANA.
Cases Determined at the May Term, 1915.
Reported for the Indiana Sentinel by j.


Opinion by SvLLIvAs j. In this case it was held
! /. That Courts of equity will follow the law in the
construction Of the Statute against usury, but bill filed
be relieved against they will require
the plaintiff to pay the defendant what is really and
bona de due to him, deductng the usurious interest," aud
appear in the bill that II has been done, Of
fer TO do so must be made
= Where a creditor holds demands against his
debtor aud payment has been made which has been
applied by the parties, Court of equity ii required 10
make the application will apply in reduction Of the
demand, that most onerous aud oppressive The de-
of the Court reversed at defendants costs T.
H. Smith for Plf, Parker for Diff.
Jones al. Myers. Error the Fayette c. T.. Opn-
ion by SULLIVAN A second mortgage, before forfeit
filed bill in Chancery against the first mortgagee,
alleging that hal been paid oil by the morgago The
bill did allege that the security Notwithstanding the
existence Of the first mortgage insufficient that
the complainant preiudced by it. Hetd on demur-
the BILL that it could not be sustained Decree of
frmed C. ID. Smith for Pif Parker for DIT.
anderson z. Farmer. Action Of Dat. Error TO the
Randolph C c. Opinion by DnwrY j. A justice of The
peace may take cognizance of bond, the penalty of
which Hundred dollars, if the plaintiffs actual
demand be for a less sum
a bond To indemnify officer against the
querces Of legal act apparently legal act Is valid
otherwise. It the act be unlawful Biownlee ~ McCei-
land for PHI, J Smith for Dt.
Schucr Tceder. Case. Error to tho Tippecanoe c.
&. OPINION by DEWEY J. For forcibc aud direct in
jury property, if occasioned by caressncss, ucspass
will lie at common law but # the lnjur. be will
fully done trespass only will lie
The distinction between the two actions is abolished
bv Statute Judgment reversed Mace for Plf Orth for
Def
Hamii,on ~ Hort Error to the Washington c. c.
Opinion by BLAoKroRD j. Judgment affirmed except
TO The costs, aud reversed Ms TO them.
Bo,cser & another Bliss Ct al. Debt Error to the
Grant &. &. Opinion by BLAcKroRp }. Judgment at
lfmed with five per cent damages
Hamilton y. Ho,t Error to the Washington G. &. an
award stated inter ala that the defendant should pay the
plaintiff certain Of money within five months from
the date of the award but silent the costs of
the suit
Held TINT there might be judgment on tho award for
the found due, with interest from the time III.
ney payable 10y the award but that there could bo
Judgment lur costs the award being silent to costs
Bo'rser II ~. r Bliss d al Error to the Grant {. &.
Bi.eNroHn J. A suit was brought by against u, &
aud on the following valid note executed by 4, - and
- "One ycnr after date, W. OF either of as promise 10
pny 100 dollars value received Provided does not
make 90 SELL trade, tanning mills within 30 uer
Of Marion, south OF the Wabash riycr Both July, 1910
An article Of agreement entered into 10y Tho above
named parties ~ the Time with snd note lay which
among other ,ings was authorized Ia rall four fan.
nlng ml within the space described ~ said ,o,c
Hdd Also that the contract was not Invalid os being IN
restraint Of unde.
Heid Also that tho burIhcn Of proof Of showing that
the plaintiff had sold than four mills within tho
space specified lay on the defendants.
TurspAY, May %
NafJr Uohingspof ppen from tbs Union & e.
Gpin.Dn b, f.livAN ]. l. "a n suit by the assignee
against nsrignor n ptonssory note, tho plninth'
unless lhe insolvency of tho maker be otherwise
shown, must not only prove TINT .ult commenced
against the maker IN reasonable IN but TINT II was
osrnied according 10 The lofms at To judgment ana
execution without unnecessary delay. When judy
mcnt has been oblnIncd 10y the assignee against the max
Of note which execution issued and was lew
led property but sold FIR of buyers and
further proceedings were had ir five months when n
cond f. ia. issued, and returned property found
He'd, that the second H. Ia and the proceedings under II
irregular and void, and thai the assignee had been
guilty OF negligence ~ not issuing re"d e. ~ required
10y the statute and under the circumstances he could not
of The assignor Judgment revered, with costs
Reid for Pf, Yaryan aud Nsvman for Drft.
\ Al. u 1. T.
Opinion by SuiIiyAs J. For libel against and
has wife, joint ncon. in which JOINT damages sought
To he recovered for The injury done 10 both, cannot he
maniared for the INJURY The husband he alone must
for the injury the wife, the husband aud wife
should JOIN IN the action % in other eases Judgment re-
rerscd ic;th cosfs Lockbar for PIN Goodlet for Dei-
sta,e rel If Loury 4. Bodicy u another Error To
the Fountain {. e. Opinion by Drwr, j. The Circuit
Court IS authorized Ia appoint ellz"r To act
IN which the sheriff - party, there being no coroner ~
attendance aud person having served under the sheriff.
as hailif to the Pet jury IN other cases - eligible as
such elisor.
II the Circuit Court ovcrruled motion TO reject plea
md the plaintiff afterwards reply to- JON issue
such plea, he thereby abandons the motDS and cannot
allege the rcfsa To reject the plea erf II the sub
scrbng witness written instrument reside out of the
jurisdiction Of the State his handwriting may be proved
by The plaintiff Notwithstanding Tho defendant has pro-
cured his deposition and placed amorg the files of the
hut the refusal oi the court To- receive The second
evidence cannot he alleged by the paini
II after the rejection of the evidence hc resort To the de-
position Ia prove the eNccuon ot The instrument, such
resort i waiver of the Under issue formed
upon plea Of eScro'r the instrument In dispute aud all
the evidence respecting it, execution and delivery should
go the Jury. Under plea of facfum the writ
ten instrument aud the evidence respecting liz alteration
matters for the consideration the Jury. Judgment
rcrersed Chandler for PHI, Gregory for Den.
flanagan Bloomfield. Error Ia the Wayne &. e..
Opinion 10y DEWEY J. la general. creditor having n
right 10 safe aud sufficient funds for tho
satisfaction of his debt be compelled ~ equity by
another creditor 81 the debtor. having lien one
Of three funds oaly look 10 that fund.- which The latter
touch II tho inIncr creditor have exhausted
the fund bound for the debts of both creditors, leaving
the other funds unexhauscd that fund may ie reached
by the unsa~fed CREDITOR by the application Of the prn-
cpie of substitution.
But there Is rule in equity by which creditor can
he compelled 10 accept security against s consent ar
by which another creditor II IN his place,
after he has rejected Decree AFFIRMED Julian for Pin
Newman Cor Def.
striagiyr kirkpefrick. Error to the Tippecanoc C.
C. Opinion by BLAcKroRp j l. To render n plea of "A for
recovery valid, must he alleged and proven that the
merits issue IN the first suhai the issue
determined by the proper rbunal--and that there
Judgment that the defendant should go without day.
The holder of Joint and several promssory note Inns
right as either aud all the makers in POINT
suit either of the three in separate suit Though
he can have but satisfaction of Judgment; but lac
all the makers jointly and utter judgment
the merits either Of them separately Judgment reversed
Ingram and Jones for PHI, Mace for Def.
Dickens d another r. tie State rel Burroughs APP
peal from the Hendricks e.. &. BLAoKfoED j. This
action against constable and his surety then
bond Held that suit such bonds may be Sustained
for breach of The condition committed subsequent,
10 its execution. Judgment affirmed Morrison for ap