Indiana State sentinel. [volume] (Indianapolis) 1841-1853, 1851-12-25
JUDGE SMITH held.

persons without the State Baekf -
3 That the evidence does not show that the matters
stated in evidence by Lanius known by the Diree
tors Of the Bank, or were communicated to them Dy
him.
3. That when a bill is drawn in good faith upon dis
tant point and the accepor is unable meet = when
DUE there no improperly in the Bank permitting him
TO negotiate second bill 10 pay off the hrst Tor sueh
transaction might be greatly to the advantage oil the
drawer other parties.
T. That the of exchange is not to be determined
by the of transmitting specie from the location oil
the Bank to the place where the bill is made payable
Judgment reversed, with directions to the Court be-
low 10 enter Judgment in conformity with this OPINION
/ Doe, &c Is. Kinney ct. al! Error TO the Fountain
/ Circuit Court.
Josiah Bush died in 1885, leaving will, in which he
bequeathed TO his wife all his real and personal estate
during her natural lfe provided she should not marry,
and her death to be equally divided between his bro
theirs and sisters but if She should marry the onehalf
of hs to be divided between his brothers and
sisters, and the other half he bequeathed to his wife
After his death, the wife married, and she and her
husband conveyed undivided half Of said land Both
are now dead
The plaintiff on trial Of the cause asked the Court
instruct the jury that under the will, Mrs Bush took
life estate only the undivided half of the premises.
The Court refused to give it; judgment for the defend
Judge SMITH held,
T That the word estate, as used in the will described
the property which the estator meant to devise and
that the of this word in will uraccompanied by
any restriction limitation conveys all the estate the
testator had. Blackf 4SS. Whether the motives of
/ a
second marriage, or whether the undivided half OF the
premises in fee greater estate than life estate in
the whole, questions proper TO be considered
/ Judgment affirmed.
ExParte Robinson Appeal from the Ripley Circuit
Court.
This was proceeding under the provision of the Re-
vsed Statutes p. Goo, against Robinson for malconduct
in Office attorney at law. The defendant pleaded
"no guilty" The court below ordered his name to be
struck from the roll of attorneys of the court.
The appellant sought to reverse this order, because
4, .. -
Jury overrued and because there a variance
between the allegations in the charges and the proof
Judge SMITH held thar these objections INSULT
cent, the appellant not being entitled trial by jury,
and the decision of the circuit court being fully Justified
! by the evidence.
/ judgement affirmed.
Russell Houston ct. AL Error to the Switzerland
Circuit Court.
| The plaintiff filed bill to set aside sherG's SALE
SC. His bill was dismissed
/ In 1871, Dulour morteaged tract of land described
being bounded by the lands of certain other persons
naming them, and stating that said tract supposed
to contain 40 acres, being bill land near Vevay-
This land was sold at shers sale upon foreclosure of
the mortgage and previous to this sale 1t app
ed containing 40 acres $40 per acre. and adj
vertIsed and sold containing that amount 1t
purchased by Houston and being surveyed by him,
lound contain 90 Russell Judgment
dor of Duour the judgment beng obtained subsequent
to the mortgage filed this bill to aside said sale
The ground of mistake, he being able to make his
money otherwise.
Judge PERKINS held
l. That the sale ought be set aside for the land be-
ing than enough the MORTGAGE, the mort
gagor ar his creditors could have had the mistake
Tccted il being gross and Injurious in its results.
2 That Houston having taken possession Of the pre-
misses under the sale, ought for rents and
profits deducng the amount of purchase money and IN
teTes thereon, he having lien the premises for such
purchase money; 9TH Blackboard 265.
g. That Russell having obtained judgment against
Dulour in 1884, and having purchased lot OF ground for
It's fell value at sale to satisfy his said Judgment. has
I rphf n xvhO has n ludom
against Dulour from re-selling said lot Of ground until
all other property owned by said Duour, the date of
his Judgment shall have been exhausted; Cohen rs Han
negan IN this court
1. That Russell, having rendered Houston the
amount of bis said older judgment has no right to de-
cree requiring Houston to accept it, and assign the Gdg
ment to him. If voluntarily, without request or
consideration previously received paw the debt of anOth
er, he has claim in law upon such other for repay
ment but if he be compelled TO pay the debt in order to
his property, and do so, he has the rights Of
the creditor paid against the debtor; Whitehead rs
Cummns in this court.
Decree reversed, sc.
Epperly Baiy. Error to the Wayne Circuit Court
Assumpsit article of agreement The declara-
ton contains special and common counts. BY the
ce disagreement, BaIly undertook deliver Epper
ly, at his pork house in Butler county, Ohio, between
the 18th day of January, lS47, and the first day of
March following 60 900 lbs. of good bulked meat the
hog round, and 60 bbls of lard for which Epperly
TO pay, delivery SO 60 per hundred pounds for the
meat, and six cents per pound for the lard, &c.
On the trial of the cause it shown that Bailey had
delivered part only of the meat and lard The court in
stuctcd the jury that recovery could be had the
special count but that the plaintiff below entitled
the reasonable value Of the pork and lard
tuay delivered and received exceed the price
contracted TO be paid.
Judge PERKINS held, that the rule as laid down in
the earlier cases, that where contract was entire no
recovery could be had until it completed has been
modified by recent American decisions. The prin-
ciple recognized is that where party has deliver
ed chatels performed labor for another under special
contract which Tor any cause he has failed TO complete
and such part performance has been benefit TO the par
ty receiving IT, and which he retains alter the time for
completing the contract has expired, action the
qudntum rGlebat qudntum naerud may be supported
The damages he is entitled presents the great
est difficulty but the American recognize the rule
that the defendant may show all the loss he has sustain
ed by the non-competlon OF the contract, reduction
of the amount of damages, without being required
institute cross action II s. and r. 275. IS Pick
555. Hill IN. Y) R. 76. 6 N. II. Rep 4S1.
In the present the evidence shows that the de-
PENDANT did claim damages for the breach of the
tract having resorted his action The instruc-
ton of the court below was therefore, correctly given.
Judgment affirmed, sc.
Rucker Beatty. Error to the Rush G. Court.
Gorden sued Rucker for SANDER and obtained iudq-
for 800 dollars. Gordon died. and Beatty his ad-
was made a party to the Judgment.
On the trial one Moore examined witness !
and on examination stated that the plaintiff had
said to him that he brought this action prevent
the defendant from sueing him. Whereupon the defend.
ant asked the witness if he had told John Ross
at &c. that that was the reason why the plaintiff sued.
Objections having been made, the court below instruct
ed the witness not answer the question.
!. Judge PERKINS held, That this instruction was
not erroneous, because it immateria what opinion
the witness had expressed to the motive Of the plain
tiff in bringing this suit.
3 That the defendant could not object to the court
permitting him prove that the character of said
witness Moore had been bad five before the trial.
he having already shown IL not good at the time OF