Indiana State sentinel. [volume] (Indianapolis) 1841-1853, 1848-06-08
SUPREME COURT OF INDIANA.



matter of suit in chancey should be brought in TO make
performance OF the order Of court safe those who
compelled obey Ill aud to prevent future litigation
Those persons may be interested either Immediately or
consequentially.
Thus persons against whom defendant has remedy
should be made PARTIES TO prevent circuiy OF ac-
tons. r.. II. Mroy having executed mortgage to Sc
cure the payment Of judgment which had been obtain
nd By Sto kwell and Reynolds, against Samuel Miroy
and Samuel Grimes, IN suit TO torecose the mortgage
for the non-payment OF the Judgment Grimes and Sam
ue Mroy having died dcrng the tendency OF the SUIT
in the circuit court there should have been bill of
vivor against his representatives Reversed
Justice o. Charles. Error to the Wayne c. &.
SMITH, IA contract to pay the amount of prece-
dent debt with interest greater than the legal note Is
tainted with usury, than if it had been for money
advanced at the time the contract made. The de-
claraton in this contained count upon promIssory
for the payment of $780, and also the common
Held that the plaintiff could not, upon the trial,
introduce the described in the declaration, but which
appeared be drawn payable with Usurous interest,
and then after proving the original consideration for
which the note given, and surrenderng the note TO
be cancelled the amount of such consideration
with legal interest under the common counts
Held also, that a drawn payable with usuricus In
admissible under the count describing such
note, though described in the is aleg
ed bear any of interest," the legal effect of the
produced being in fact correctly described the princ
pal only rocoverabeunder the statute against usury
Reversed
Bogart the city Of Ns,0 Albany Error to the Floyd
e. C.
PERKINS, J.-Retaling spirituous liquors without Ii
censs, from Incorporated town. not Indctabe Of
fence il simply breach of the bylaws of such town,
if license is required by such bylaws. 1t is civil
suit between The incorporated town and tho individual
sued on such bylaw in debt for the breach.
Thus ., p. 49, Of the Revised Statutes OF '43,
which enacts appeal or writ of error shall he from in-
ferior in originating before justices
preme court where the amount in controversy exclusive
of interest and under twenty dollars governs in
suits for breach of corporation laws The plaintiff below
the city Of New Albany recovered only ten dollars, with
which she conent-the writ of dismissed
as jurisdiction is not given the supreme court.
.NandlOue st al o. Burton. Error TO the Decatur C. C.
PERKINS, IA vendor of his volltion cannot
avoid his conveyance the whole part of the
property can he set up his own fraud ground for
avoidance. Trover Is concurrent remedy with trespass
de 6onis asporatisths latter action may be brought by
defendant against officer who sells goods
claimed by such descendant as exempt from execution
Reversed.
Jackson o. Bartcr.-Error to the Steuben C. C.
BLACKBOARD, J.-It is well settled rule that a denial
OF out of several allegations in declaration, admits
the facts stated in the other allegations.
Judgment of another State has the same validity in
this State that il had in the other. The issue of uL
Tel Record should be tried by the COURT and the
of statute of another State may be denied by
plea. Reversed
NiIlison o. Holmes et al Error to the Pulaski c. C.
BLACKBOARD, IA petition fora change of venue OBJ
ectng the judge of circuit court, state the
laid down in the statute, or such come within
the spirit Of the law-an application for change Of
cannot be repeated without special cause. The
right of possession may be said give the close and soil
to the possessor during the lime Of possession.
Held, that settlement effected under the presumption
law of the U. States, and according its provisions
gives the close and soil to the settler for twelve months
the months be considered calendar months, and the
may be said to be his To prove this, does not
require proof of freehold title The allegation that
sbis he seers) is satisfied against wrongdoer by
proof of actual possession alone. affirmed.
FRIDAY May goth.
Mccormick ct al o. the President and Trustees of the
tOton Of Lafayette Error to the Tippecanoe c. C.
rha niea Tho rnado oil
compromising for property taken of individuals for the
public good and it is not necessary that the damages
should be actually ascertaned and paid before the proper
~ is taken possession Of for the contemplated.
Held, that incorporate could be enioned in
the taking prvate properly for the benefit of the town,
the ground that the corporation had not property suf
cent pay danees before any attempt has been made
to procure compensation in the mode pointed In
such cases. the public of towns and cities in
coporaed by the Legislature, ordinarily sufficient
curty for damages sustained by their citizens IN conse-
quence of the exercise of corporate powers to this
tent.
They would be liable only losses as may have
been occasioned by the Temporary and occupation of
the land by the corporation for the value of the
soil.
Stmcoke o. Frederick ct al Error TO the Whitley c. c.
PERKINS, IAN amendmentin the address of a writ
of replevin may be allowed by The courts. An avowry
is not deny properly the plaintiff but sets up legal
right the defendant to take propery without regard to
ownership-an avowry then amounting to plea of pro-
perry in stranger should be rejected motion. The
plaintiff in rePevin must recover only on the strength Of
bissown title.
The plea of non cepit in repevn admits property in
the plan-the plea of property in the defendant or in
I a stranger, does not. Reversed
Winston o. Mccormack ct al Error the TIppecanoe
&C
BLACKBOARD, This was an action of assumpsit
brought in the year lS45.
Plea that the of action old not nor did either Of
them, within FIVE years next before the commence
of the action The defendant relied the act Of
1885, under which the contract made, which act
limited the bringing of such actions in five years.
Held, that this suit having been commenced after the
of 43 in force which prescribes SIX years as
bar the plea relying the lapse Of five years next be-
fore the suit commenced, cannot be sustained
Were the OF limitations part of the contract,
thenhis plea would be valid but the law is otherwise.
The affects the remedy only and that statute GO
like this which happen to be in force whom
the suit Is brought.
MosDAY, May Doth.
Allen admir- &c. o. Lee. Error the Decatur c. c.
Smith $50 far as evidence is concerned there
doubt that questions of sales of real esate the same
In personality, that warranty does not extend TO defects
which are known to be obviously percepble to the pur
chaser at time of the does general
nant of warranty conclusiveIy extend TO such incum
brancss known to the purchaser at the time OF
the contract. Reversed.
Parker and Helm q. Henderson, Appeal from the Fay
cite c. G.
PERKISs The charter of the White Water Valley
Canal Company being public act which all are bound
to notice. by appeal from Of dam
by the provisions of that charter must be taken to
the circuit court the comfy in which the land injured
lies, and appeal TO any other circuit court is void
Reversed.
Caller o. Smart ct al Error TO the Johnson G. e.
BLACKBOARD 1.-The trustees of school district pro-
pery appointed, have the power Of building of furnish
ing and dsposng, Of the district school house, and OF
causing school be kept therein, and of contracting
with teacher Instructions may be given by The voters
of the district but the trustees only carry them out
A peaceabe entry against wrongdoer, in his alb
sence, by the proper owner is unsuitable. affirmed
s. TUESDAY. May 80, lS4S-
Esther and Rachel Santan. Henderson ct al Error to
the Fayeite c. C.
SMITH, Jt is not sufficient to that deed not
Internationally rendered; when the declaration contains
common count after judgment for the plaintiff demurrer,
of inquiry should be awarded to ascertain the DAM
ages. Reversed
Marshall the STATE Of Indiana Error 10 the Park C. c.