Weekly Indiana State sentinel. [volume] (Indianapolis [Ind.]) 1853-1861, 1855-09-13
DEC SIONS
OF THE
SUPREME COURT OF INDIANA.

MAY TERM, 1855.
| lALBRRT G.. PoRTER-oFFICIAL REPORTER.
Moore D. McClintock. Appeal from the
Grant Circuit Court
Where to bill in chancery an answer I'M
der oath was waived, under the statute, the
effect of a denial in the answer was to require
the allegations of the bill to be sustained by
preponderance of evidence only. Reversed
with instructions to the Circuit Court to dis
miss the bill.
A. j. Harlan and c. II. Test, for the de-
PENDANT. j. Brownlee, for the appellee.
RussellV. Drummond. Error Delaware &C.
Gookins, IA replication to plea set
ting up written instrument as the FONDA
ton of defence, was not required by the r..
s. f843 to be sworn to; but if not sworn to,
the execution of the instrument was not re-
quired to be proved.
If oyer of an unsealed instrument be given
without objection when demanded, it be-
comes part of the record
In suit upon "a note, oyer was given as
well of the note as of certain Endorsements Of
payments upon it. Held, that the defendant,
in pleading payment, had right to make the
Endorsements part of his plea, and that the
! rpsaintifz pufd not have them stricken ont on
mottidE
1t is the peculiar province of the jury to
weigh testimony and to decide upon its force,
and their verdict upon the mere weight of
testimony will not be disturbed, except in a
very clear case.
An attorney at law to whom note is sent
for collection. has no authority, merely as an
attorney, to transfer the property in it to a
third person.
The payment of note by third person,
at the request of the maker, does not vest in
the former any interest in the note, but raises
merely an assumpsit against the maker for
Money paid to his use. Reversed, with in
Fstructions to the Cir Court to dismiss the suit.
w. March, for the plaintiff; 7. j. Sample
and d. Kilgore. for the defendant.
whitsell and otheS .. Mills. Appeal Nor
gan G. C.
Dawson, 1.-The legal effect of divorce
is determined by the law in force when it
was granted.
By the r. s. 1881 all divorces were vim
culo nsatrinissi;, and either party, after the
divorce was granted, could lawfully marry
Dover. BY the r. s. 1888. was substantial
iy as at common law.
Where husband and wife are divorced a
uinculo, the wife, after the husbands death,
Is not his widow.
The widow alone, at common law, is enti-
tied to dover.
A husband was divorced from his wife
under the r. s. 1881, and died, while the r.
s. 1888 were in force, seized in fee of land.
Held, that the wife thus divorced was not en-
titled to DOVER Reversed.
ID. Mcdonald, for the appellant; r. L.
Walpole, for the appellee.
The State Bank a. Coquillard. Appeal st.
Joseph C. C.
Dawson, J.-There can be no usury where
there is not loan. -
When note, in its inceptf = a real
transaction, SO that tho pa5r Z ,omsee
may, at maturity, m" % on it, the
transfer of it by Endorsement or discount,
though beyond the legal rate of interest, is
regarded as a sale of the note and valid
transaction.
Coquillard being engaged in the erection of
FIGURING al.l DESTROYS 2 sase n,r'r''t =
complete 1t, proposed to convey certain lands
to the Bank for four drafts owned by the
Bank; and the drafts were accordingly as
signed to him, aud the land conveyed to the
Bank. Among the instances where the Bank
is allowed by its charter to purchase and hold
real estate is, where real estate is conveyed
to it Gin satisfaction of debts previously con-
traeted in the course of its dealings" Held,
that the purchase from Coquillard was not
within this clause of the charter. Held, also,
that being in contravention of its charter, the
purchase was void.
A contract which contravenes the provi-
sions of statute is nullity. Reversed
j. L. Jemegan, for the appellant; j. A.
Liston and j. w. Gordon, for the appellee.
Dickerson and another The Board of
Commissioners of Ripley C. C. Appeal Rip
ley C. C.
Stuart, 1.-The larty applying for au in
junction upon the collection of a judgment,
was only obliged, by the K. S. 1S43, to in
dorse on his bill release of errors in the
Judgment when required SO to do by the
Court.
An equitable estoppel is thus described
Where the payee, upon an agreement sup
ported by sufficient consideration, extend:
the time of payment to the principal, without
the consent of the surety, the latter is dis
charged, the payee being equitably estopped
The payment of interest in advance is :
sufficient consideration to support an agree
ment for further forbearance.
Where the relation of principal and suret,
exists betwess the makers of written in
strumes hough the instrument be who'll,
silent q, khith is surety, and ever be join
am fal, The makers, as against the pave
or obllsee, for the purpose of letting in an.
act of the latter tending to affect the collat
eral relations of the makers, may show tn
true relation of the makers to each other.
An agreement with the principal, in orde
to release the surety in written instrument
need not operate to release the debt
/ A surety will be discharged by any agree
ment of the creditor with the principa
which. if violated, would give the surety