Weekly Indiana State sentinel. [volume] (Indianapolis [Ind.]) 1853-1861, 1855-08-30
DECISIONS
THE
SUPREME COURT OF INDIANA.
MAY TERN, 1855.

heP0Fed Oy FoTtoT, Esq, Hcporter OF Inc Court.
Butler and Others The State. Appeal Greene c. c.
STUART. Indictment against the persons compos-
ing the trustees OF the WABASH and Eric Canal for
nuisance in erecting feederdam, &C.. which was par.
Of said Canal. The dam erected under the act Of
1876 to provide for the funded debt Of the State and for
the completion of said Canal to EransriHe No act OF
shown in the erection OF the DAM Feid
that the indictment was not sustained.
The State has exclusive jurisdiction over s cams with
In her territorial limits which be navgaed only for
short distances, at brief periods by inferior craft and
may obstruct them at pleasure for the public good
The act OF March T. 1888, (Acts 1853, p 10 clearly
manifests the States intention remit Che punishment
for the act which the indictment In this case is founded
and not perceived that in anomalous this
any principle would be violated by giving to full ef
feet. Reversed.
W. d. Griswold, for the appellants; G. G. Dunn, "
z. Taylor, and J. Coburn, for the State.
Hale T. Plumer. Error Floyd G. c.
GooKINs, J. BY the chancery practice, if affirmative
matter in which made I cross bill, was
not denied either by replication answer to it as
cross bill il was taken IS true.
release of dover by the wife in the conveyance Of
the husbands real estate, is valuable consideration. and
the sum to be pail for it may be secured TO the wife
through atrustee, il the parties so agree.
The wife Of partner has inchoate right of dover in
real estate of the Partnership upon which the character
of personally has not boon purposey Impressed by the
partners and which is not needed discharge the debts
of the partnership adjust ihs claims Of the partners
as between themselves. affirmed, with per cent. dam
ages
II. p. Thornton and J. Collins, for the plaintiff; r.
Crawford, for the defendant
Shook and Others The State rel. Stevens, Audi
tor &c, Error Ripley C. C.
Goonss, J. MI ds5st Is bad In debt Oh bond.
The board OF commissioners, treasurer, auditor,
any other officer who charged BY the r. s. 1873 with
the duty Of protecting end preserving the surplus
fund, proper relator in suit a bond given
to secure loan from that fund.
In suit on a surplus revenue bond an allegation in
the declaration that the suit brought or tina
the surplus revenue fund.-, is mere surplusage
The peader, in suit on four surplus revenue bonds
stated action have upon the non-payment
of the annual insiamens Of interest," but the action
not brought until the principal the last Of the several
bonds due, and there breach 10 each count In
which the non-payment of the bond avcrrcd Held
that the defect II any existed, curod By the breaches
last named.
The surplus revenue fund belongs to the United States
but is held in trust by the State, who is the legal cso
dian thereof; and the avemeni in a suit a bond TO
that fund, that had not been paid TO tine Stae is su
cient.
defect in the mere form OF declaration no, be
examined on demurrer to a defective plea.
The r. s. 1913 allowed interest TO be taken on loans OF
the surplus revenue at the rate OF per cent.
in advance; and the statute fixing the rate Of interest
generally, and defining the offence OF usuy, expressly
excepted from its operation those provisions Of law which
related to the oanng Of the trust funds OF the State.
The bonds declared this substantially in
the form prescribed by the statute to be taken loans OF
the surplus revenue aud there averment in the
pleas that they made upon any other consideration
Held that the presumption that they given for
money borrowed from that fund.
To declaration upon instrument which does not
appear its face to be usurious plea Of usuy must
allege that OF interes, reserved with
corrupt intent.
agreement with TIE principal to enlarge the time for
the payment OF debt, must DO founded upon consid
GRAFTON, in order TO discharge the surety.
An instruction IS right II correct in its application to
the evidence, although might be erroneous a. an abb
stract proposition.
Happeared in evidence, in tho present case that the
bonds sued upon were given TO sot,s defalestion Of
the principal agent of the surplus fund.-
they made in the form required upon loans,
come due at future periods with interest payable annual
ly. Held, that the jury had right them
evidence OF loan. ffrmed, with per damages.
F. Dumont for the plaintiff; J. Ryman, for the State.
The Lafayette and Indianapolis Railroad Company
Shriner. Appeal Tippeeanoe Com Pleas.
DAvIsoS,y. Section Of the act of 1853 TO provide
compensation TO the Of animals killed injured
by cars, &C. of any railroad company, &C., excludes
from the consideration OF the jury in suit against any
such company for the destruction OF stock by their
any consideration OF the question whether the injury
the result OF wul misconduct negligence, OF
vodable accident
That act not applicable to case wher the injury is
done by the at tbs crossing OF public street in
city, the company having right erect fence thereon
In a suit, under the common law against a railroad
company injury done by their animals, the
question whether the injury occasoned by negli-
gence, misconduct unavoidable accident is open for
the consider ration of the jury.
The common law imposes the owner OF domestic
animals the duty OF keeping them his land
within enclosures and he wrongdoer any Of
them escape or stray of upon the lands of another per-
son.
This, as general rule, is the law in this State.
II animal is wrongfully the track Of railroad,
but injured, while the same by the gross negligence
wilfu misconduct OF the eompany's agents, the
pany is liable.
The law requires that train of in passing through
shall be with degree of care, and
hence less rate OF speed than is generally observed
in the movement of The train. Reversed.
c. Gregory and r. Jones, for the appellant; ID. Mace
and w. c. Wilson, for the appellee.
In the case Of Morgan and Another .. Hobbs ard Ar
Other there was n first paragraph of the
syllabus. 1t should be follows
A. being called as juror and examined By The Court,
touching his qualifications SUCH said, had
formed expressed opinion In The case, had he
formed expressed an opinion TO which Of The par
ties should succeed that his mind decide
according evidence, though he had formed
opinion as TO some OF the matters in controversy Held
that ehaIlsnrs for cause would not lie.