Indiana State sentinel. [volume] (Indianapolis) 1841-1853, 1852-01-22

nit the plaintiff to amend his writ and that
could aside the verdict OF the jury, and award
a renire.
Judge PERKINS held.
l. That so far as appears, the Judgment might have
legally included Moore ALSO and he had been served
with process in the county where the suit was brought
the service upon Robertson was legal under the ~ Sec
Of the r. S., p. GA.
2. That such service being legal, the amendments
made authorized by the 50, SO, and 100 sects,
6s4 OF the r. S.
3. That this court must presume that good cause
was shown setting aside the first award of damages,
and, if so, the court below might set it aside.
Judgment affirmed.
Court
This was an Indictment against Crane for keeping
stallion and letting, &C., within the limits oil town
&c The indictment alledges that this was done " in
the public view Of the inhabitants OF said town. mo-
ton was made quas it, because it did not aege that
the plaintiff had provided an enclosure
JUDGE PERKINS held
Tba1 the averment that the offence charged was in
public view of the inhabitants of the town. sufficiently
necatived the fact that enclosure had been provided
Judgment affirmed.
Fowler Us smith Appeal from the ST. Joseph Cir
cult Court.
This was an action Of debt a note, the considera-
on of which was an exclusive right 70 MAKE use ana
The Jury gave Judgment for the PLAINTIFF the defence
being that the rake was useless. The only question
whether the evidence warranted the hnding- The
proof showed that the rake was useful IN level land
when the straw not long too Short and that
the plaintiff had told the defendant, the time of the
e that the rake would save onethlrd the labor and
that boy fourteen years of age could keep up with
Grader.
Judge PERKINS held
That the questions, whether there was fraud
warranty and the yalne of the right sold for the
Jury on the trial. and upon the evidence this could
not say that the court below erred IN refusing to set
aside the verdict Hardesfy Smith at this term.
Blackf. 81.
Judgment affirmed.
Butterfeld ct al u.s. Beall. Appeal from the Ripley
Circuit Court.
their father certain tract Of land situated in Ripley
county and afterwards together with their husbands
executed power of attorney Nauvoo IN Illinois, TO
Jonathan C.. Wright to sell and convey the same. In
the Acknowledgement il omitted to be stated that
wives were examined :'without the hearing" of their
husbands Wright sold and conveyed the land to Bea
the deed Of conveyance describing the parties TO il thus
Obel Butterfed, Caroline Butterield his wife, and
Richard Bush, and Adeline Bush his wife" &C., 'wit
nesseth that the said Jonathan c. Wright party of the
first part Sc and concluding by signing the names in
full OF ButteTed and the others, executed by Jonathan
c. Wright their attorney in fact.
An action of eiectment was subsequently brought by
Stephen c. Harding attorney at law on The demise
of Butterield and the others, and ousted Beal In
1880 Harding instituted suit against him for the
covery of mense profits of said land, whilst in his pos
session During its tendency, Beall filed the bill in
this suit setting all the facts and praying that the
prosecution of the action for profits be restrained
and the conveyance OF the land perfected. An nlunc-
ton granted.
Judge PERKINS held,
l. That BIZ the marriage of Bnterfeld and Bush,
they became possessed Of estate for their lives in
the real property OF their wives that this they
could respectively convey Kent 1885, and that at
tempt to convey the fee simple would not render void
their conveyance, to the interest they did possess
r. S. r. 4l7, Sect. %. p. 1925, Sect Ga; Kent. SO.
2 That as the bill AYERS that the wve, still liv-
ing, the rghlfu possession OF said land is in Bea the
profits belong him, and he had defence at law
to the eiectment suit.
g. That account of the defect in the acknowledge
ment the power of attorney void the wives but
being sufficient to the husbands, il is good to
them.
A. That although the deed is very inareialy drawn,
il is held (not however without good deal of besita-
ton) that IL is sufficient the OF power legally
conveyed to Wright. Story on Agency, Sect. III ct
seq
s. That as to the possession Of the land, Beas rem.
edy law aud that there has been adjudication
below upon TIE question of his right decree perfect
ing the deed against the female defendants in the bi
Decree reversed.
Beall rs Doe Error to the Ripley Circuit Court.
This is the electment mentioned in the foregoing
and in pursuance the questions therein deci
ded, the Judgment is reversed.
Carter rs Thomas. Error to the Cass Circuit Court.
Carter the administrators Of John Tipton's
estate, accepted order former administrators of
the same estate The acceptance was follows, sac
cepted to be paid when funds received" The dec
laration contained special and common counts The
defendant filed the general issue and special pleas but
the latter were held bad on general demurrer. Judg-
ment rendered against the defendant dc bonis pro-
priis.
l. That the common counts were sufficient to support
the Judgment if the special count bad and the evil
dence offered under all.
g That as the deiences set up were all admissible
under the general ISSUE the defendant sustained
Jury by the decision the demurrer 10 his special pleas
3. That the judgment was necessarily against the de-
PENDANT de bonis proPris, because he was declared
against his individual capacity. 1t is laid down that
elf executor administrator promises in writing
that in consideration d having assets he will pay par
cnar debt of the testatoe nesate, he may be sucd
his promise in his individual capacity and the udg-
ment against him will be de bnuis propris, 2 Williams
on Ex. 1867. Jennings rs Newman, L. r. 34s. IA
Peters 2S2, Blackf Al In this there proof
that subsequent 20 the acceptance the defendant had
$500 of money belonging to the estate.
Judgment affirmed.
Stockwell ct al Walker ct al. Appeal from the
Tippecanoe Circuit Court
Kere, in his life time obtained a Judgment against
Patton. which Beard became repevn bail. After
the death of Kere, Walker. his administrator revived
the judgment against Patton alone but subsequently,
had it revived against Patton and Beard. Execution
issued and was levied property Of Beard and this
suit motion to vacate the levy, the ground that
the revival of the judgment against Patton alone,
leased Beard. The court below dismissed the motion.
Judge PERKINS held,
That this decision was correct. A Judgment for the
plaintiff in action upon a domestic Judgment is not
satisfaction Of the judgment sued on for is not
payment of it, a merger of it. They are hut seen.
rites Of the degree and both remain in force ii
John. 5l3. Wend. SO. Wrights CO., r. 46. The
first Judgment against Patton not being extingushed
10y the second, the parties 20 il subject to the pro-
ceedings to enforce its collection.
Judgment affirmed.
Henry us. The State Bank. Appeal from the Dear
born Circuit Court.
This was an action Of assumpst brought by the Bank
against Henry Ian indorser) and FIVE Others the ma
ker and lndorsers Of promissory After the evil
dence was heard the plaintiff obtained leave to strike
from the writ and declaration the names of all the de-
PENDANTS except Henry, when the continued