Indiana State sentinel. [volume] (Indianapolis) 1841-1853, 1845-06-12
SUPREME COURT OF INDIANA.
Cases Determined at The May Term. 1915.
Reported for the Indiana STATE Sentird By a. j. sterens.

Cases Determined at the May Term. 1915.
Reported for the LdEsna STATE ss~tiud By 4. j. sserens.
MONDAY, June 2, 1915.
Ezra .. ManIops. Appeal from the Tipgecanoe C. C.
Opinion by SULLIVAN J.. l. An execution that is issued on
a Judgment that is rePlevied, at the request Of the surety.
before the expiration Of The Teplevy without an affidavit Is
under the statute Of 1888 irregular and void. 2. II such
execution be levied By the constable he may abandon the
levy when informed Of the invaliditY Of the witt. 3. il is
a general IuIe in pleading that in asserting a tight founded
on a statute, the pleade: should array any fact necessary TO
inform tie court that his case is within the statute. judy
ment rerersez. Chandler and Mace for Plf, Baird for Delft.
Otmsfead ct al. . McNaH ct al. Error 10 the Wander
burgh c. c. Opinion by Sullivan J. j. The statute "Teg-
ula,ing the lieu OF mechanics and others on buildings" ex.
tends to and embraces wharf boats used for receiving and
storing goods. 2. A remedial statute should receive such a
construction as mos. efectusIly TO meet the beneficial end in
view and 10 prevent a failure OF the remedy intended. The
The statute giving a lien upon "bOais and other vessels for
construction, Iepaiis, sc" applies exclusively TO vessels in
tended for navigation. Judgment reversed Balteil for PHI,
Baker for Deft
Jackson er dem Gordy Q Greer ct al. Error to The FOun-
tain c. c. Opinion by DEWEY J. A decree in equity how
ever erroneous the Proceedings IN the cause, Is not a nuliity'
provided the court rendering it has jurisdiction OF The sub
Jet matter, and Of the paIties = the bull Judgment o0Irm-
ed. Mace for Plf Chandler for Deft.
Daniels Err. o. Richie ct al. Error to the Allen c. c.
Opinion by DEWEY J. If the defendant crave oyer Of an
instrument declared on and have it, but demuIs to the de-
claratiOn without spreading 1t on the record. his demurrer
stands as If no oyer had been cTaved. III plaintiffs describe
themselves as executors but declare in their own right. IL IS
no cause Of demurrer TO the declaration. Judgment rerersed.
Colonish and Walpole for PHI, Cooper for Deft.
State Bank e. Braekenridge. Error to the Allen c. c.
Opinion by BLAcKFoRD J. The State Bank can only be the
owner OF real estate in a few cases which are enumerated in
The charter; and any such estate which II may thus own IS
a part Of It's capital stock. The joint property Of the COM
pany, whether il be in land, promissoTy notes, or specie, or
any thing else which they acquire and hold under the au-
thotity Of their chatter. is a part Of their stock and there
is a provision in the charter respecting its taxation
IT a tribunal in exercising a limited jurisdiction, exceeds its
limits, all its determinations beyond ills due bounds are coTdas
non jEdiee; and any preeept issuing from such court to en-
force such determinations is no Justification to the officer.
Judgment reversed. JeTnegan for Plf, r.. Breckenridge for
Deft.
m ct-s. D. - A ID q, Cg1g. ponE Error 70
the 81. Joseph c. c. Opinion by BLAcKFoRD J. Action Of
assumpsit 10 recover $l77 "a being the amount Of State,
county and road tax assessed on the Branch at So9th Bend
for The year lS43. Plea OF payment as 10 pars and non as
sumpsit as TO residue. Held. the l25 cents reserved on the
share Of an individual stakeholder (y the 10Th sectioa OF
Bank Charter,) paid by hun on such share without borrow
jns fom the State, should be deducted from one per cent. the
limit fixed by the charter TO the assessment OF an ad valorem
tax upon Bank stock. Judgment affirmed. Defrees for PifE,
Jernegan ior Deit.
Bolles +. Harris. Error to the Carroll c. C. Opinion by
sullivan J. l. In an action Of debt on a recognizance Of
special bail the declaration did not set out the recogni-ance
in hecrsrbd, nor state il according to It's legal operation.
Held that the declaration was insufficient. 2. In such action
where there are issues 10 the country as well as pleas oil
null fiel record. the amount due must be ascertained by
a Jury, not bv tire Court. Judgment reversed. Plati for
PIh. Mace for Def.
Opinion by Sullivan J. |. A deed or other conveyance Of
land made by a person indebted at the time with an intent
to defraud his creditors is void, provided the grantee be pnvy
10 the fraud. 2. Ii the grantee in a deed, made oy the
grantor with an intent to defraud his creditors, receive notice
Of the fraudulent intent Of the giantoI before any part of the
purchase money be paid, he will, III he 60 on to complete the
contract be particeps frauds, and the deed will be set aside
as absolutely void. Decree beOv cffrmed J.H. Bradley
for Plh, Jernegsn for Deft-
Morrison .. Wrdy. Error to Fountain c. c. Opinion by
Dewey j. A writing in the following form: Received Of
three dollars and fifty cents, for the rent OF my brick
house in CovingtOn, for one month with the privilege OF
keeping il six months at the same rate" Slgned W IS a
lease fom w. TO N. given upon an executed consideration
for one month and from month to month for five months
before, provided NJ should pay to W similar sum at
n rnrn of aarh rnOnfh. JudpHPuf TereTse1.
Mace for PIf., Gregory for Def.
Cottingham .. the State on rel. Of Hare. Appeal from the
Hamilton c. C. Opinion by Dewey j. To an action Of debt
on a guardians bond the declaration assigning specific breaches
Of the condition Of the bond, a plea that the guardian dis
charged all the duties and trusts of Guardianship IS bad en-
special demurrer. So also is a plea that the guardian was
not guilty of the breach of his trust alleged in the deelara-
ton. The declaration alleging that the guardian had failed
to pay over money to his waId, at maj 'rty, a plea that the
guardian had loaned the money pursuant to statute and in
discharge Of his duty as guardian, is had on special demurrer.
The plea should show an order Of the Court of Probate
authorizing the guardian to loan his wards money. A plea
protesting to answering the whole declaIstion, but answering
but a part is bad on demurrer. A plea protesting to answer
T" part Of a declaration !" but not specifying what part, is
good on special demurrer, provided IT directly deny a paru-
cular and material allegation in the declaration. The sus-
tanning a demurrer to such a plea, though erroneous, is no
cause for reversing the judgment for the plaintiff, if the
breach denied by the plea was not taken into consider alton IN
assigning the damages, the judgment being the same 1t
would have been, had the demurrer been sustained. Jadg-
ment affirmed. II. Brown for Plf, Wick and Barbour for
Deft.
Hig6y Z. the State Of Iadiana. Judgment affirmed.
Cor and Morrouo .. Hazxdrd. E,ior to the Rush C. C..
Opinion By BlackfOrd J. suit on a note given in part pay
payment Of such note. Held hat as the plaintiff should
have offered TO execute a deed before the commencement Of
the suit, a plea emitting to aver that such offer had not been
made, is bad. Judgment affirmed, with five per cent DANA
gs and costs. Newman for Plff., spOoner and HackIeman
for Def.
Cor and Morror D. Wells. Error to Rush C. C. Opinion
by BlackioTd j. To make a deed good as 10 the wife, her
name should be mentioned in the body of the deed. Judg-
: ment reversed Newman for PHI, spOoner and Hackieman