Indiana State sentinel. [volume] (Indianapolis) 1841-1853, 1852-01-01
INDIANA STATE SENTINEL.
Decisions of the Supreme Court of Indiana.
NOVEMBER TERM, 1851.

Walker Pratner and DINERS 1Ifor 10 tue Seh-
nings e. Court.
This was an action of debt before Kelsey, Justice.
Judgment was given for the plaintiff. The case was
appealed the Circuit Court where the case was dis
missed for want Of a sufficient cause OF action.
Before the appeal from the Justice taken. Kelsey
had resigned his Office and deposited his docket with
Basnett, another Justice in an adjacent township HIS
certificate the transcript shows these facts, and also
that he had not transferred the to his own docket
In the Circuit Court the plaintiff offered to prove in
support OF motion 10 dismiss the appeal by the docket
Of Basnett that the had not been transferred TO
his docket The Circuit Court rejected this evidence
Judge BLACKBOARD hed
l. That by the Revised Statutes, p. GIT, Justice,
with whom docket Of another Is deposited, on account
CT resignation Of Office absence, and party, inter-
ssted in thereon desires transcript must trans
fer such to his own docket.
That it was competent for the plaintiff in this case
70 show by the docket Of Basnett that sach transfer
hal not been made, and that therefore the Circuit
Court had erred in rejecting the testimony offered
3. This suit brought against the defendants on
be bond given by Prather the administrator oil the
state of the plaintiffs husband copy oil the bond,
and that the plaintiff the widow OF the
intestae and such entitled to certain personal
property Of the estate which had demanded OF the
administrator, filed the cause of action.
Held That these constituted sufficient cause OF ac-
ton under the provisions OF the K 5. PIP SIO, lO4S
Judgment reversed, &c.
shutz rs. Van Pat,en. Error to the Tippecanoc
Common Pleas.
boat and furnish pilot and six hands, to freight corn
down the Wabash Ohio and Mississippi rivers Tor an
Palten He to receive his freight at certain place
named in their written agreement deliver u a. such
places these rivers Van Patten might DESIRE Tor
which he receive IS cents bushel, and II the
boat and skT sold for than $50, Shultz was to
have the overplus The declaration aedges that Shnz
provided boat according agreement but that an
Patten refused furnish the oading &C. Verdict and
Judgment for the plaintiff Tor $3.50
On the trial Of the the JsdSe below instructed
the Jury that if they believed the plaintiff was entitled
20 recover and il circumstances were proved by the
defendant 10 mitigate the damages in assessing them
Slfo he MA n
made and cleared had he been furnished with the corn
and taken il to New Orleans other points oil destna'
from which the present value of the boat should be
deducted
Judge PERKINS held:
l. That this instruction erroneous, because IT
placed the plaintiff good condition. the time tho
contract was broken as he possibly could have been in
had he made successful voyage. This would not be
equitable. The plaintiff when the contract broken,
ought to have employed himself TO the pest
and to have sold his boat have preserved It from IN
Jury. He ought recover what would have made him
reasonably whole the time OF the breach of the agree
ment all the circumstances Of the being considered.
21 Wend 457; 10 Johns 513.
q That this court nevertheless, cannot the
Judgment below because the instruction was not except
ed to- motion for trial was made and overrulcd,
and exception taken to the overrung OF this moton
bat that is Insufficient, because the error IT excepted to
before verdict, may be corrected without expense or
trouble and the jury again retire to TeeonsdsT their YER
How, (U. S. 260; Mis-, 500; Pike, 45l; 20 Maine,
Al; Gilman, 235.
Judgment affirmed, &c
Burch ct al rs. Elliott. Appeal from the Knox C.
Court.
A bill in chancery fled aside a conveyance
of land the ground that It was fraudulent as against
the compliments who are creditors The answer de-
MED material allegations of the bill Dispositions were
taken the bill dismissed by the Circuit Court, &c.
Judge PERKINS held,
the debts, named in the bill that whilst so indebted he
owned the land therein named, which ortgaged to
debt of $500, but worth about 900; and that
H. chi 1o,lf HE with fcOu
liberation, the court below erred in dismsslng the bill
The court shoud have entered decree setting aside the
conveyance far creditors were concerned and that
the equity of redemption should be sold for their benefits
the Oysrpus any, to be paid over to the grantee oil
said John Elliott
Decree reversed with directions enter pursuant
to this opinion.
Wright Us. Blachley ct al. Error to the Hendricks
c. c.
In 1912 Biachley and others obtained Judgment
against Eden Bales for $1,000. Execution levied
on a of land belonging Bales, and the land sold
for $3.50 in 1916, the judgment creditors being the pur
chassrs and the land being appraised at $780, by TIVE
appraisers according to the Statute of that year At
the purchasers sold this land Wright taking
his three several notes and executing him their bond,
conditioned that deed should be made to him, when the
las. note was paid. Afterwards Wright purchased the
land from Bales, who executed deed to him therefor
This action brought upon the first two Of these notes,
the third being due, when suit commenced.
The general issue and want OF consideration
pleaded
Judgment for the plaintiffs below
Judge PERKINS held,
L. That the plea Of want Of consideration bar
10 action tho rst and second notes. instituted be-
fore the third became due for the conveyance Of
ths land is their confederation but the promise
convey IL at future day Blackiord liz; ID, 34I
and GOrham Reeves at this term. A contract for
the conveyance another at future day Of property
which the seller the time Of such contract has no
title is valid. 5 NJ. & W., 462; 10 ID, 355.
8. That the judgment of Baekley and others
lien the land and they might have resold it. Their
deed to Wright would have estopPed them from enorc
ing this lea, and Wright purchased the land from
Bales whilst subject this lien, the clearance OF il by
deed from Backley and the others, may be good
consideration for the notes given.
Judgmen, affirmed, &c.
Doe 1s. Harvey. Error the Henry Circuit Court.
Ejectment-ludgment below for the defendants. The
plaintiff sought set asids the sale Of the lands made
IN 1888 by administrator, in pursuance Of decree of
the Probate Court, for two first because it did
not atrmotirey appear that notice for the application
for the sale made to the heirs; and second because
the administrator himself was the purchaser.
Judge PERKINS held,
/. That all the other proceedings relative to the
sale appears by the record have been regular and
thing appearing Inconsistent with the fact Of notice hav
ing been given the absence OF proof the contrary,
such notice viii be presumed have been given in ado
nestle court Of general jurisdictions such the Probate
&C ri. Homer Doe, May term, 134S. Doe rs. Smith,
November term, 1919.
q That although it is a well settled principle in equi.
~, that purchase made by Of the property
of his cess que trust will be regarded being made
for the benefit OF the latter it, nevertheless cannot be
SCI aside except IN eaaeery because the is emit.
Tied TO be reimbursed has money paid interest thereon
and the value OF improvements In the action of eject
mcnt such reimbursement cannot be made. 2 John oh
X. 202. Al administrators stands in the same re alton
Judgment affirmed.
Kintner ct al The State on rel Of SmeItou. &c
Error TO the Cas- Circuit Court.
This action of debt on the bond OF Kintnsr "A
former School Commissioner the county Of Cass The
declaration shows that hc was elected School Commits