Indiana State sentinel. [volume] (Indianapolis) 1841-1853, 1852-01-01

a. That the cause Of action did accrue within SIX
months next before the OF this suit, and
the said term Of six years expired alter the tune Of
brought within egteen months alter the time oil
the decease of said Samuel.
To the 3D. Sd, and 4th pleas the plaintiff replied that
from the knowledge Of the said plaintiff the OF ae
tion SC. TIE which the defendant reoined that said
Samuel did not conceal. sc.
On the trial. the plaintiff offered to prove by his first
witness, that in 1912, Samuel A. Duncan admitted TO
him the existence Of part the OF action The suit
was commenced in l849. The Probate court refused
hear the proof and gave judgment for the defendant
Judge PERKINS held,
That this testimony was enormously rejected, because
under the general issue the plaintiff bound to prove
the existence Of his of action and the
issue Of concealment There mil ht be cases in which
OF would require that the party should show
be had other evidence ready 10 Offer which, with that
rejected might make out his case, but this not one
Of those cases.
Judgment reversed &c.
Berry Makepeace. Error to the Madison Circuit
Court.
This was action Of Assumpsit, to
Of interest paid three Judgments rendered by
Justice of the Peace, 1870 by agreement OF parties,
bearing 10 per cent. interest. Two pleas fled
the general ISSUE and that the defendant did receive
the money, &c., within year previous TO the CON-
mencement of the suit. Trial and judgment for the de-
PENDANT.
The judgments OF the Justice were rendered against
Berry and Williams and Kinde became replevin bail.
portion of them made by execution, various pay
had been made by Berry and Kindle and in ls4s
Berry paid $500, which Makepeace received in full
satisfaction Of them.
Judge SMITH held
l. That the Justice had authority to render judg.
ment bearing more than per cent interest, the only
statute, then force, allowing 10 per interest
contract reduced to writing and signed ey the
party be charged and that the judgments of the
tice were not such contracts.
2. That the issue formed on the second plea i'm
material, it being authorized by the r. S., p 5S, in
only in which the hoie of the interest paid is
sought to be recovered, as illegal.
8. That this suit correctly brought by Berry
alone; neither Williams Kindle need be joined, as
the last payment of 300 dollars covered the of
interest," which being received without consideration by
Makepeacs, he is to be considered holding for the
person from whom he received it.
Judgment reversed, &c.
Irons rs. Hussey. Error to The Hendricks Circuit
Court
The trial of this cause submitted to the Circuit
Court, two Judges only being present. namely the Pre-
sdent and Of the Associates. They disagreed the
former being of opinion that judgment ought be
dered for the plaintiff and the latter for the defendant
The Circuit Court rendered Judgment for the defend
ant. as being the legal result of this division.
Judge SMITH held,
That when cause is submitted to the Court under
the provisions Of the X. S. r. 49, the finding Of the
ford, 3ll that when the jury disagree there be
judgment and that therefore, the Court below should
have continued the for a trial.
Judgment reversed.
Ruth Owinas and others rs Nicholas OwiHrs Error
to the Grant Circuit Court.
This a suit in Chancery, brought by Nicholas
0wings, the bill stating that George W. Owings the
Of Nicholas in injunction with Carter entered
twohalf quarters o. land; that afterwards, the
qnes of Nicholas the said George purchased the inter-
est Of Carter, with money furnished by Nicholas who
him and George: that no deed was made Nicho
las, he having full confidence in his George, &c..
that in 1847 George died. leaving wife, the said Ruth
and two minor children.
Ruth denied, in her answer, having any knowledge of
the facts relating to the purchase but sine believed that
husband had purchased the interest Of Carter for his
own use and f Nicholas had furnished the money it
was in payment Of debt owing her husband by him.
and that lease for life only had been given by her hus
band to Nicholas, &c. The Court below entered de-
cree for the complainant
| Judge SMITH held
That this decree erroneous; for although the prin
eps facts in the bill were sufficiently proven yet there
paid money for the complainant the title to the land
should remain in him. but that the complainant and his
wife should reside on the part occupied by them during
their lives.
Decree reversed, with directions to dismiss the BILL
&c.
Tellinger and wife rs The Heirs Of James Wylio
Appeal from the Pnsey Probate Court.
The bill sets forth that james Wylie died in 1885,
leaving farm OF loo acres and about SIS dollars worth
oil personal property more than necessary to pay
his debts; that the administrator allowed the widow
their mother to take this property account of her
cesscs and 10 remain in possession OF the farm that
afterwards he gave her Of money and goods belonging
the estate about so dollars and that IL of the farm
were cleared with the complainants money costing them
SO dollars; that in 1874 their mother inermarried with
Tenger and since the marriage they have wasted the
property, &c.
The defendants in their answer allege that the per-
scna property left bv the deceased amounted to about
100 dollars and what the widow received was more
than she was entitled to, sc.
decree rendered in favor of the complainant. for
sIs7 80.
Judge SMITH held
! /. That If the defendants liable to account for
the personal property the administrator the proper
person to bring the suit, he not having yet made na
settlement
2. That if the administrator elected make settle
ment in due time permitted the property 10 be wrong
fully taken, the appropriate remedy was against him.
g. That the and profits Of the land in this case
than the widow entitled to, not than
sufficient compensate her for the maintenance Of the
children, who were quite young, and whose services
could be Of little to her.
Decree reversed with directions to the Probate Court
to dismiss the bill.
Oxfords Adms. &C. Mcfarland. Error to the verm-
lion Circuit Court.
This action Of assumpst against the admins
for work and labor and sold the decedent
The evidence TO the labor performed, showed that
Mcfarland was the sonn-law Of Oxford, and for year
after his marriage resided at the house Of his fahern
law, and whilst there work occasionally.
! The jury allowed pay for these services.
Judge SMITH held,
That it was well settled that son or sonn.law liv.
for occasional services performed in that capa
city, without proof OF express contract that they
were to be paid for.
Judgment reversed.
Strong Whig Faith.