Indiana State sentinel. [volume] (Indianapolis) 1841-1853, 1851-12-11

of summons must be made reurnabe the first day Of
the term, and it is enacted (page 72 that all pro-
cess returnabe a day fixed by law shall be deemed
and taken be returnable such day, although dill
ferent day be named in such process.
2 That although in the opinion OF the court the nrst
plea is bad yet il the averment that the plaintiff and
jerks auduenty concealed the execution and existence
Of the deed Of release from the defendant was material
the goodness Of the Plea, it was competent Tor the
plaintiff to take issue upon it.
3. That the I'd plea was clearly bad. The award,
under the law, stood Judgment OF Justice OF the
Peace, and was conclusive if not appealed from. Black
ford 52S, Ind r. %, r. s. page 1856. discovery oil
evidence which unknown at the time of former
trial may afford grounds for motion bill in chan
Gerry obtain trial but cannot constitute basis
Of good plea in collateral suit. In an action on an
award it be mpeached for misconduct of the
bitrators The remedy by bill in chancery have it
set aside. Backford 1853, l03.
A. That the statute authorizes awards to be signed
by majority of the arbitrators.
| Judgment affirmed, &c.
Musgrove Bond rs. Glasgow. Appeal from the
Dearborn G.. Court
Glasgow sued Musgrove & Bond on two notes, In
which Bond was surety for Musgrove.
Judgment in the Circuit Court for the plaintiff
At the time Of the execution Of the notes, IL was I'M
dersood between the parties that Musgrove was to have
the money for trip down the river and Tor the use oil
the money he pay 10 cent int On his return
he told Glasgow that he ready to pay him and oer-
ed to pay him. but Glasgow said he did not want more
than 100 dollars the OF third note held by him
on Musgrove, in which Bond was not surety. They
then agreed that Musgrove should keep the money an
other year. the of interest," and in their
versaton had at this time Glasgow asked Bond would
be willing stand surety for the money again, TO
which Mnsgrove replied that Bond had told him he did
not want do Glasgow then said to Musgrovc " 1t
will make no difference think you are good for il"
The 100 dollars on the third then paid, and the
money taken to pay the other two, brought back again
by MusgFove.
Two witnesses testified that Glasgow had enqured OF
them after this transaction, of the standing of Mus
grove telling them he had loaned him money with Bond
his surety for trip down the river, but afterwards
let him have the money again for another trip taking
Musgrove alone for it.
The circuit court instructed the jury that these facts
did not constitute any defence.
Judge SMITH held that this instruction
for the evidence tended to prove the payment of the orig
inal and a loan TO Musgrove on his sole re-
sponsibiy. Had the money been passed into the hands
OF Glasgow and by him handed back there could be nc
doubt of their payment But this iormalty of passing
the money may be waived, and the jury might have
regarded it.
Judgment reversed.
Mobiles Executors rs. Alvord and Another Appea
from the Marion c. Court
Scirc facias TO revive Judgment against M Lain
Noble. The writ was issued against Milan, and No
be's Service upon them, and special de-
murrer filed TO the scre facias. Before il decided
Milan died. At the ensuing term his death was sug
gested and then the demurrer overruled. The oh
jectons raised by the demurrer that the die
not show rhere the court be holden. 1t
ed the defendant to appear before the Judges of sait
court the first day of the thereof to be
1t did that the judgment remained unsasfed
Judge SMITH held:
, ]. That there was nothing in these oblections-ht
writ substantially averrng that the judgment un
satisfied.
g That the objection raised in this court, agains
joining in the scire facas the survivor Milan, and the
executors of Noble, If tenabe at the commencement
the suit ceased to have any force after his death-tht
Judgment being against the executors alone The plain
tiff could have amended the writ by striking out the
name of Milan r. S. Oh. 40, 90.
} Judgment affirmed
; MJunkin u.s. M'Junkin Appeal from the Allen C
Court.
bill for divorce was filed by the husband; notice
4 given by publcation-the wife being a nonresident
Default taken, proof made, and divorce decreed il
October, 1915 At the next term, the wife filed an at
fdavt stating that she had actual notice or knowl
edge of the fling of the BILL and prayed that the deere,
might be opened
To this the defendant filed an affidavit stating that afte
tho decree he had married again. The Circuit Court
refused to open the decree.
Judge SMITH held, that this decision was correct
The Revised R 6O2) provides that the practice
and proceedings in suits to obtain divorce, shall be the
same in other in chancery, with certain speci
fed exceptions. BY such practice, party against
whom decree has been rendered, without other notice
J tina by publication in a newspaper may have such de-
cree opened any time within five years. by giving
tice, etc. the original complainant, his heirs de-
vsees. executors or administrators. These last men
toned provisions not intended apply divorce
+, cases. for such could not be opened against
heirs, devisees. executors In subsequent prov
the statutes protect the rights oil nae
chasers etc. under decree, but makes provision
to the rights Of children born by second marriage
Had the Legislature intended that DEGREES granting d.
might be opened under the Statutes referred
the rights Of such children would have been protected
Judgment affirmed.
TUESDAY, Nov. 25.
Bush The Peru Bridge Company. Appeal from
the Miami C. C.
This was bill in chanccry praying perpetual in
junction restraining said company from the of their
bridge, and asking account OF receipts, &C.
Il The circuit court dismissed the BILL
Under the statute of 1881, authorizing boards dongs
county business establish public ferries, Hood Brit
ton and Williams propretors oil the Town OF Peru, by
authority from the commissioners OF Miami county, es
tablished ferry the Wabash River at Broadway
in said town In lS42 the Legislature ncorpor.
ated the Peru Bridge Company, authorizing them to
bridge across the Wabash River the southern
termination of said Broadway street, and to the
writ of.ad quod damnum to condemn the necessary
The bridge being erected Bush, who had become the
purchaser of the ferry withdrew his ferry boats and
filed his bill upon the principle that the grant to Hood
Britton and Williams, conveyed the ercusiUe privilege
of transportation across the Wabash at Peru.
The act of 1881 contains this provso: g Prorided,
that ferry shall be established within mile mme-
diately below above regularly established ferry
less they (the commissioners shall deem important
for the public convenience where the situation oil a
village, the crossing of public highway the
intervention Of creek river shall render it
sary.
Judge PERKINS held:
/. That there nothing in this act authorizing
county commissioners to confer exclusive privilege,
bur, the contrary to them the right TO
tabsh additional ferries if the public convenience de-
mands them.
2 That the Legislature could itself exercise this
right at any time it plessed-the commissioners being
| but its agents.
3. That there was difference between the estab-
lishment of ferry and bridge, for the purpose