Indiana State sentinel. [volume] (Indianapolis) 1841-1853, 1851-06-12
Supreme Court Decisions, May Term, 1851.



MONDAY, May 25, 1851.
Judy v WIliGms ct al. Appeal from the Jackson
Probate Court. SMITH, j. Petition for partition, by
oil several devsees, claiming under will. Before the
death of the devsor of the devisees died. The de-
PENDANTS in the court below permitted prove
versaons OF the devSor after the death of these devsees
showing that it his intention that their heirs should
take under the will. The petition made according
y these heirs allowing them the portions their parents
would have taken under the will.
Hed-That the admission of such proof and the iudg-
ment admitting the children of such deceased devsees
to portion, under the will, is erroneous. Judgment
rerersed.
RIntner, Widotv, &C., " McRae Appeal from the
Harrison Probate Court. SMITH, ]. In 1886 Jacob
Kintner sold of land Bnes, who paid part of
the purchase money down and gave notes for the bal
ance Kntner gave title bond conditioned convey
on the payment of the purchase money Bines died in
1913 the purchase money being still unpaid In 1915
McRae bought said land under decree enforce the
payment of this purchase money. In 1912 the plaintiff
was married to Kntner. She petitions for dover in said
land. Petition dismissed below.
Held,-That this decision correct the sale being
before the marriage, and merely perfected AFTER by the
proceedings under the decree. Judgment affirmed
Smith Y. Ferguson ct al In to the Marion Cir
cult Court. SMITH, ]. Assumpsit. Demurrer to the
declaration; demurrer overruled. The defendant failed
to plead further and an interocGory Judgment was rem
dered jury called assessment of and Judgment for dam
ages. Defendant offered evidence that the debt
contracted by his authority; rejected.
Hed,-That this correctly rejected his liability
Dy the Judgment on demurrer. NO evidence
was admissible, except, to the amount of damages.
Judgment d6frmed with per cent damages
State Banks v. Hamilton and Williams. In to
the Marion Circuit Court SMITH J. Case founded on
the following letter alleged be written by the defend
ants falsely and fraudulently.
"FoRr WAYNE, March 6, 1914.
60 F. MoRRIs, ESQ, Cashier.
'Dear Sn:-This will be handed you by Mr.. Daniel P.
Bushnell, who is introduced to by Messrs Mcqueen
& Mckay, of Detroit, as their confidential agent.
This house is of long standing and the highest respeeta
billty. Mr. b. has their drafts New York, which he
wishes in the purchase of produce and for which
he may wish to procure Indiana funds; and the
branch here is not purchasing he may visit your branch
Were we purchasing such drafts, should take them
with the highest confidence of their being promptly met
Very respectfully,
HAMIIroN & WILLIAMS"
Upon the receipt of this the Bank discounted twelve
drafts for 1000 dollars each Soon after MCQUEEN &
Mckay became insosent, and the Bank sued Hamilton
& Williams. Judgment for defendants.
HeLd,-That the above letter does not amount TO a
guaranty and further-that from the weight of evidence
the defendants did not make the representations in its
falsely or iraudulently Judgment affirmed.
Samuel Fl. Patterson V. The State Bans of Indiana.
In error to the Clark Circuit Court Judgment affirmed
with two per cent. damages.
TO the Vanderburgh Circuit Court. PERKINS, j. E.
iectment by the heir of one Ployer. The defendant
claimed under sheri's sale in 1925 pursuant to reg
ular Judgment in the Circuit Court against Poycr upon
scire lacias judgment of Justice. The plaintiff
permitted 90 behind this judgment and attack the
validity of the judgment of the justice Judgment fol
plaintiff
Held-That it was erroneous to impeach the iudg
of the Justice collateraly; the purchaser sher
id IS sale is bound only TO show the judgment of a com
petent court Anexecntion warranted by the judgmen
and sale under il: further that the Judgment of TIA,
justice and the Circuit Court are not Identical but, tina
the Scre facias in effect, suit Jennings V
Stafford /. Iredell. Judgment reversed
The White Water Valtey Canal Co. v. Comegys, Greg!
ct al Appeal from the Dearbon Circuit Court. BLACK
FORD, j. Bill in chancery by Gregg against the Whit
Water Valley Canal Co., Comegys, Barr & Febiger
In 1913 Comegys had leased and was using certain wa
from the Company this wats power to be used by him
after it had been applied 10 the wheels of COmegys
Comegys witnessed the lease. After Gregg had use
this for years paying rent to the Company Com
eggs sued him and recovered judgment. Alterward
sold out to Barr Febiger who threaten to divert tn
water and to sue for the rent The Company clam tn
rent also.
The bill prays that the defendants may interpead an
settle their right the rent, for injunction agans
Comegvs and assignees and for general relief Deere
compelling defendants to inerplead, and finally, tina
Barr & Febiger entitled to the rent.
Held-That this is erroneous, that the tenant has n
right to call upon his landlord to ligae his title wit
strangers, further, that the allegations that b.
threaten to divert the water not being admitted in tn
answer proved do authorize injunction. judS
ment reversed with Instructions to dismiss the bill.
TUESDAY, May 81, 1851.
Hoddy V. Hoard. Error the Lagrange Circu
1
the grantor, Hoddy to deed, alleging that III
original deed had been lost. Bill Deere
appointing commissioner to- make deed, and alte
wards confirmation, at the costs of Hoddy.
Held, That this is erroneous. First-An affidavit
the loss of the is necessary to sustain bi
, Of this kind. Second-That the defendant is not liab
for the COSTS the grantor being under obligation
preserve the evidence Of the grantees title. Decree n
versed Bill dismissed.
Shelton. School Commissioner, " Kintaer, Heth an
tcifc. Appeal. Cass Circuit Court. SMITH, ]. Ri
by SKELETONS School Commissioner, to foreclose NOR
gage executed by Heth Kintner, former Scho
Commissioner. The bill charges that Heth is tenant /
the courtesy only in the mortgaged premises, and thu
Kintner knowing the nsufcency Of the security, mad
the loan. Prays that the failure of Heth pay
debt, his interest in this land may be sold, and if ba
remains unpaid, for execution against his goo,
and chattes. Heth and Kntner demnrred TO the bill
severay. Demurrers sustained and the bill dismsse
n Held, That if Kintner is liable in a suit law I;
making fraudulent loan, the bill is still proper rem
DIV against Hetis and that the decree of the Circu
II Court b disiiss6g the 6as against Heth, is enron
4 oiEs x ace ftvrfsed = -
e e Ilr.r1ocR ATTIC COUNTY, corWrETrTrT,