Indiana State sentinel. [volume] (Indianapolis) 1841-1853, 1845-06-12
STATE SENTINEL.
SUPREME COURT OF INDIANA.
cass Determined at The Aoy Term. 1916.

- " aoHfIoL1 D't"Nt hf'rt ctutt tbat tt I'LL uut
lawful interest have been paid or rendered, and ia case of
q tender the mnney must he brought into Court.
2. When it Is apparent upon d bill in chanrery that the
complainant has no equity, The defect may'be taken adj
vantage ui NJ ANY stage OF the proceedings. Decree re-
rsrsed. X, man Tor appellant, Dsvisson for appellee.
Redman & Clark e. Could. Appeal from the Floyd
&C. Opinion by SULLIVAN J.
/. In AN action of Trover the plaintiff to maintain his
suit must have a right OF property in the goods converted
as well as The rghi oil possession at ue TINE Of CONVEX
sion.
2. After a declaration of bankruptcy, the right Of prop
erty in the b~ankrupt's goods passes To hts assignee, and
the latter Is entitled to the possession.
g. In the Courts Of tins State, the transcript Of n re-
cord from a District Cuuu of The United States is admis-
sible as evidence. Judgment rerused. Collins, Bradley
aud Qnarles for appellant, Crawford for appellee.
Sherman .7dmr- a. Hls0H. Error 10 the Martin c. &.
Opinion by DEWEY J.
II The declaration in a~ssumpsit contain a count on a
prommissory note aud a cummo count, and tie Defend
ant appear To tie action and suffer judgment BIZ nil Dict
il is erroneous for the Court to assess the damages with
out The ransenl of the parties Judgment reTesed. War
ner for PlH, Waits for Def.
Tie State Bank 2. Lyman & another. Appeal from the
Dearborn {. c. Opinion by DEWEY J.
If the holder, the endorsee, Of a bill of exchange for a
valuable consideration, give time 10 the dIawee, he there
by dIsehai yes the endorsee. Judgment TercTs,d. Lane
for Pin, Ryman q Spoo"er for Defts-
DRr7oRt . Pope et al. partners. Error to the Cass c.
&. Opinion by BLAoKToRD j.
Suit On an instrument as follows :-"Logansporl, Oct.
%, 1915. Messrs. Peudleiun * Zern will please pay in
conformity to tho agreement between us bearing date II
Sept. 1912 10 Messrs. ". u. Pope x Co. or order The
sum of 2Go dollars holding The balance of the funds de-
posted with you if any at my disposal and subject 10 my
further oIder. (Signed) julius w. Dumoni, sur part"
The instrument was not accepted. The question
whether the instrument of writing is a bill of exchange
or not, not necessary for the Court 10 decide.
To authorize a payee 10 recover on a bill in whirh
there is no time specified for payment, lie must present the
bill 10 the drawee for acceptance or payment within a rea-
sonable time. The parties lived IN towns oHly 10 miles
apart. Mails three times a week between the towns.
The instrument was not presented until so days after il
was received. Tho preSentment was therefore too late.
IL the instrument IS a bill OF exchange the plaintiff can
not recover. But on The snpposiIion that The instrument
Is not a bill of exchange, the plaintiff relics ON the conn
mon counts. The instrument not being valid as Il bill of
exchanges il was not sufficient evidence under the common
counts. The plaintiff should have proved The considera-
ton Tor which the order was gwen. Judgment reversed.
Biddle tor PIGs, Wright for Defs.
Scott e. BiHiams. Error To the Miami c. c. Opinion
by BLAcxFoRD j. The question whether a transcript of
a Justices Judgment was duly filed in the clerks office is
a question for the court TO decide-for a transcript IL duly
filed Is a record of the court. A replication averring
that there IS a record of a Judgment remaining in tue
clerks Office Of the circuit court is wropg-the averment
should be that there was such a record M the Justices
court. Judgment reversed. Plat for PIf., Wright for
Def.
Berry ct al. q. JIG Command. Error to The Dayiess e.
C. Opinion by Sullivan J. l.. a scire facias 10 have
execution against real estate may be amended by striking
out an imnaterIai averment.
g A court may IN its discretion at any time before TIL
al permit a party to withdraw a demurrer aud plead 10
merits.
3. In a suit founded on a scire facas 10 have execution
against real estate, conflicting titles TO lands claimed by
the debtor cannot be inquired into and settled. Judy
-ment offrmed. Watts for PlHs, Thornton for Delts.
Jos. Gratis e. Ftftek. Error To the Adams c. &. OpIn-
ion by SULLIVAN J. Under the general issue in an ac-
ton Of qua ella. f. a license cannot be given in evidence.
II must be specially pleaded. Judgment rerescd. Brack-
enridge for Plf., ID. Wallace for Def.
HeaTy Hurst Err. Q. Hensiy ct al. Error to the Clark
&C. Cfinion by DEWEY J.
The personal representative ola vendor Of real estate, Ohe
vendor having deceased without making a deed and before
he was bound 10 convey has the right in a coart of equity
10 require of the heirs or devisees of the vendor TO make
a deed according 10 the contract of sale, and to demand
of the vendee the payment Of the purchase money such
personal representative is also entitled TO enforce the ven
doris hen for The price of the land. Decree reversed.
Crawford for Pih Thornton for Defts.
Phpps y another q. addison ct al. Error 10 The Clay
&C. Opinion by DEWEY j. In an action on a bill OF
~excharge payable to a finn, by the drawers who had paid
the bull against acceptors, IT is sufficient 10 describe the
bill in the declaration as payable TO the firm without set
ting forth the names of the members of the firm. 1t is
not neces saTy 10 allege in declaration on a bill OF ex-
change against the administrators of the acceptor, that
the plaintiffs claim has been filed in the office Of the
clerk of the Probate Court which granted the letters oi
administration TO the defendant. In such an action the
Judgment should be Of in favor of the plainii6) thar the
damages levied OF the goods OF the intesiate, and the
casts also If there be assets, if not of the goods of thC
defendant. Judgment rererSed. Hanna for Pits, Nc.
Gaughey fer Def.
R0ala z. FoLO1c. Error to the Allen c. c. Opinion
by BLacKFoRD J. The charge that one is forsacorn, i
moi of itself acfionalle. The count in a declaration in
SANDER in addition To the iRdUcefaent and coHoquiun
should contain the iHusndO which is always necessary II
such cases to explain the defendants meaning by refer
e0ce u TIE prev iOuS 1dit6 judgment TCCcTScd. ~
" allace for Plff.
.aahan ct al. U. Sherman ct al. for use &c. In error Il
the Huntington c. e. Opinion by BLAcKFoED J. a
paTol condition inconsistent with a bill or note cannot bt
e~ngrafted upon it. IL is error for the court 10 assess dam
ages on The common count without the consent of ever
one Of the defendants. Judgment re1erscd. WaIpcIe &
CoIsnck for Plfs, COombs for Dehs.
FRrDAY, May 30.
Joice ct al. .. HEford ct al. .7dmr. Error to the Hen.
bricks Probate Court. Opinion by SULLIVAN
/. Tie Probate act &c 1888 which directs that proceed
ings upon quits commenced against executors or admins
traitors shall abate, and that executions issued upon iudg
ments against them shall be recalled on complaint filed
Dc, praying To settle the estate as an insolvent estate
embraces also judgments against the heirs and terre ten
ants Of the deceased, 10 sell the real estate.
q. judgment liens are matters of statutory regulation
and when ii is manifest from a statute that no lien is in
tended none exists. Judgment affirmed. Nave for PIES.
McGaughey for Defs
Berry .. Borden. Error TO The Allen C. c. Opinion
by DEWEY j. If a declaration cantain two counts TO
different assaults and batteries and the defendant plead
j%nstIfying only one Of the trespasses, and the plaintiff re
ply de inj1Tia he valves the benefit Of one of the counts
and cannot give evidence of an assault and battery differ
ent from the one justified A Judgment non abstGnte rT
edicto is allowed only where the plea confesses the nc
ton, and entirely fails TO avoid il on the merits. Judg
meaf affirmed. Cooper Sor Plf, Coumbs for Def.
Mckinney o. HGTfer. Appeal fiom The Decatur c. c
Opinion by BLACKBOARD J. An amendment not afeeiin,
the merits Of a case made during the trial, or previously
Is not a cause for continuance. When The description il
the declaration corresponds with the instrument in writ
ing declared on, as IN this case a due bill. the instrumen
is admissible as evidence. BIT where The instrument i
payable sto the estate of y. b. deceased. . il is necessar,
TO introduce evidence TO show That Z. ID is the admins
traitor. Judgment affirmed, DAWSON for Plh., Rymar
for Deft.
To KILL FLIEs.-lt is perhaps not generally known