Indiana State sentinel. [volume] (Indianapolis) 1841-1853, 1845-06-05
SUPREME COURT OF INDIANA.
Cases Determined at the May Term. 1915.
Reported for Es h4diana State ssatind By a. j. stscsns.
No.. NJ. nc

OoHHtT q al. o.. -UHcTS. EFTOr 10 the LHVelte L. u.
Opinion by SULLIvAs J. In this case il was held,
i. That Courts of equity will follow the law in the
construction of the Statute against usury, but on bull filed
to be relieved rgainsl a Usurious contract they will require
The plaintiff To pay to the defendant, what is really and
b1na fde due TO him, deducting The usurious interest, and
il must appear in the bill that il has been done, or an Of
fer to do so must be made.
2. Where a creditor holds two demands against his
debtor, and a payment has been made which hashot been
applied by the parties, a Court of equity if required to
make the application, will apply II in reduction of the
demand, that IS most onerous and oppressive The de-
cree OF the Court was reversed al defendants costs. T..
b. Smith for PHI, Parker for Diff.
Jones ct al. .. Myers. Error to the Fsyette &. e. Opin-
ion by SULLIVAN A second mortgage, before forfeit
ure, fled a bill in Chancery against the first mortgage,
alleging that 1t had been paid off by the m~origagor. The
bill did not aIIego that the security, Notwithstanding the
existence OF the first mortgage was insufficient, nor that
the complainant was ~preiudiced by it. Held, on demur-
rer TO the bill, that it could not be sustained. Decree aE
frmed. c. b. Smith for Plf., Parker for DIT
anderson o. Farmer. Action Of Debt. Error to the
Randolph c. c. Opinion by DEWEY J. A Justice of the
peace may take coguizance of a bond, The penalty Of
which is over one hundred dollars, if the plaintiffs actual
demand be for a less sum-.
A bond to indemnify an officer against the conse-
quences Of a legal act or apparently legal act is valid
otherwise. lf the act be unlawful. Blownlee g. McClel-
land for Plf.. J. Smith for DIT.
Schuer q. Feeder. Case. Error to the Tippecanoe &.
e. Opinion by DEWEY J. For a forrible aud direct in
jury to property, if occasioned by carslessness, rIesPass
or case will lie, at common law but If the injury be will
fully done trespass only viii lie.
The distinction between the two actions is abolished
by Statute Judgment rerersed. Mace for Plf, Orth for
Den.
Hamilton n. Wort. Error to the Washington C.. C.
Opinion by BLAcKFoRDJ ]. Judgment affirmed except as
TO the costs, and reversed rs 10 them.
BODser & another .. Bliss t al. Debt. Error TO The
Grant c. &. Opinion by BLACKBOARD J. Judgment aE
6rmed with FIVE per cent. damages
Hamilton q. Wort. Error 10 the Washington {. C.. An
award stated inter ALA, that the defendant should pay the
plaintiff a certain sum of money within five menths from
the date of the award but 1t was silent as to the costs Of
the suit.
Held, that there might be a judgment on the award for
the sum found due, with interest from the time the mo-
ney was payable by the award but that there could be
no Judgment for costs, the award being silent as 10 costs.
Bo1cSer ct al. q. Bliss ct al Error To the Grant Z. Z.
BLAcKFoRD J. A suit was brought by A against u, Z
and d on the following valid note executed by c, d and
ID. "One year after date, we or either of us promise to
paw A $50 dollars, value received; Provided A does not
make or sell, or trade, any tanning mills within 80 miles
of Marion, south of the Wabash river Both July, 1910"
An article of agreement wa entered inIo by the above
named parties al the same time with said note hy which,
among other things, A was authorized 10 sell four fau-
ming mills within the space described IN said note.
Held, also, that the contract was not Invalid az being IN
restraint of trade. &.
Held. also, that the burthen of proof of showing that
the plaintiff had sold more than four mills within the
space specified lay on the defendants.
TUESDAY, May 81.
Macy q. HoVings1corth. Appeal from the Union {. C..
Opinion by SULLIVAN j. i. In a suit by the assignee
against the assignOr Of a promIssory note, the plaintiff,
unless the insolvency of the maker can be Otherwise
shown, must not only prove that suit was commenced
against the maker in a reasonable time, bu; that it was
prosecuted according TO the forms Of law TO judgment and
execution without unnecessary delay. 2. When a judg-
ment has been obtained by the assignee against the max
er of a note on which execution was issued and was lew
led on property but not sold fr want of buyers, and no
further proceedings were had for five months when a Sc
cond f. ia. was issued, and returned no property found.
Held, that the second f. ia. and the proceedings ander II
were irregular and void, and ihat the assignee had been
guilty OF negligence in not issuing a UeRdt er. as required
by the statute, and under the circumstances he could not
recover of the assisnor. Judgment reversed, with costs.
Reid for Plf., Yaryan and Newman for Deit.
Hart .. CrOo g. Crolp Error to the Warwick c. C..
Opinion by sullivan j.. For a libel against a man and
ms wife, a Joint action, in which joint damages are sought
TO be recovered for The injury done TO both, cannot be
maintained for the injury TO the husband, he alone must
sue For the injury To the wife, the husband and wife
should Join in the action as in other cases. Judgment re-
rersed oith costs. Lockhart' for Plf.. Goodlet for Defls.
State eI rel. IF Lowry o. BOdIey & another. Error To
the Fountain c. C. Opinion by DEwEYJ J. The Circuit
Court is authorized to appoint an eliZOr TO act in a cause
In which the sheriff is a party, there being no coroner in
attendance, and a person having served under the sheriff,
as hailItf 10 the petit jury, in other cases Is eligible as
1t the Circuit Court overruled a motion to reject a plea,
and the plaintiff afterwards reply TO, or JON issue on,
such plea, he Thereby abandons the motion and cannot
allege the refosal 60 reject the plea as error. If the SUBJ
scTibIng witness 10 a written instrument reside out OF the
jurisdiction of the STATE, his handwriting may be proved
by the plaintiff notwithstanding the defendant has pro-
cured his deposition aud placed IL among the files of the
cause but the refusal of the court TO receive the second
ary evidence cannot be alleged rs error by the plaintiff
III atter the relecuOn OF Tile evidence lie Te>nfl u u Oe-
position 10 prove the execuIfon of the instrument, such
resort is a waiver of the error. Under an issue formed
upon a plea of eScroto, the instrument in dispute and all
the evidence respecting its execution and delivery should
go to the jury. Under a plea Of mon est factHn, the writ
ten instrument and the evidence respecting lis alteration
are matters for the consideration OF the jury. Judgment
rererSed. Chandler for Phf., Gregory for Def.
flanagan z. Bloomfield. Error to the Wayne c. C
Opinion by DEWEY j. In general. a creditor having a
right TO resort Ia two safe and sufficient funds for the
satisfaction of his debt can be compelled in equity, by
another creditor of the same debtor. having a lien Oh one
of three funds only. tn look to that fund, which the laIteI
cannot touch erif The lormer creditor have exhausted
the fund bound for the debts of both creditors, leaving
the. other funds unexhausted, that fund may be reached
by the unsatisfed creditor, by the application of the prIn'
cipie of substitution. -
But there is no rule in equity by which a creditor car
be compelled To accept a security against his consent, OI
by which another creditor can resort to it in ms place
alter he has rejected il Decree affirmed. Julian for Plf
Newman for Def.
Sfringfy y. Kirkpatrick. Error to the Tippecanoe c
e. Opinion by BLACKBOARD j. /. To render a plea of a for
mer recovery valid, il must be alleged and proven that ths
merits were IN issue in the first suit-thal The issue was
determined by the proper tribunal-and that there was
Judgment that the defendant should go without day. 2
The holder of a joint aud several promissory note has
right TO treat it as either and sue all the makers in a Join
suit or either one of the three in a separate suit. Thougl
he can have but one satisfaction Of judgment but b,
cannot sue all the makers jointly, and after a judgment OF
the merits, either of them separately. Judgment reversed
! Ingram aud Jones for Pif., Mace for Def.
Dickens & another o. the State eI rel. Burroughs. Ap
peal from the Hendricks &. T.. BLACKBOARD J. TIN
was an action against a constable and Ins surety on tbei
bond. Held, that a suit on such bonds may be sustained
for any breach Of the condition committed subsequent,
TO lis execution. Judgment affirmed. Morrison for ap
pellant, Nave tor appellee.
i
HEAVY VERDIcT-Mrs Eliza Letitia Yeates, o
Lancaster, Pa. has recovered from the administrato tor