The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1883-04-09
THE COURT RECORD.
snpreme Court-ApriI Q.

Delng lnSOlVent, lie ldd assumed TO pay anu Hdu
secured ali the partnerships debts, aud that the
creditors of the firm did not look TO Sperrys
estate for any part of it, and that said estate Is
insolvent and insufficient to pay his lndlvldual
debts Prayer that the administrator be re-
CURED to pay one-half of said firm debts. These
allegations do not show that the appellee mad
paid anything, assumed any liability nor
that Sperrk estate was released from the cl-lln
and the case is not therefore within the rule LAID
down in % Ind, 100 1t does not show that he
had paid and advanced money for the use OF the
decedent's estate. 1t is well settled that lndl-
yidual creditors must first be paid out OF the IN
dividual assets before partnership creditors can
share. rs Ind, 124; so i'd, 500; 81 Id, 4So')
Judgment reversed.
MOTION FOR NEW TRIAL-vARYGNG WRITING BY
PARoI.
ssh. Daniel Burns vs. John H. Thompson.
Black, C.-Where a motion for new rial refers
TO the bill Of exceptions, filed long after the mo
alleged to have been enormously admitted or ex-
cluded. no question is presented. The statute
provides that the application must be by motion
upon written causes filed at the time OF making
the motion. The rule which forbids the Yarla-
ton of written instruments by parol evidence
applies only to parties and privies, and does not
forbid their being thus attacked and cOntradiet-
ed by strangers to them. (55 n. Y, 222; 80 Ind,
$3.50 Judgment affirmed.
BILL OF observation-disclosures
9,929 Crate PaYey VS.. Samuel wintrode. Hun
tingtOn C. G..
Franklin, CA bill Of exceptions which de-
clares that it contains all the evidence,
but does not contain written evidence whlch
1t shows WAS admitted, Will not present any
question the sutficency of tine evidence.
(79 Ind, Al; 60 i'd 1861 The guardian of an
insane person sued appellants for fraud prac-
ticed upon the ward before the appointment OF
the guardian. AS appellants could not TESTIFY
for each other"withont at the same time testify
ing for themselves, they were incompetent VIII
nesses. (43 Ind, los. Judgment affirmed.
INSANE PERsoN-EQUITABLE TRUST IN LANDS.
1o,350. Mary Cooper vs. VIM. M. Cockrum,
Gibson G. c.
sullivan, deceased, by his first marriage, alleged
that said sullivan for twenty years prior TO ms
death was of unsound mlnd and that his money
was used IN the purchase of real estate which,
by fraud and undue influence his second wife
procured to be decided to her. that tine
decedent was the equitable owner of the
lands at his death, and that as his heirs
appellants are entitled to share in the
proceeds realized from the sale of said land, al
though said second wife, prior TO her death, had
devised the land to the children by the second
marriage The facts alleged did not necessarily
constitute said Sullivan the equitable owner of
the land. He cannot be regarded as snch owner
unless an election was made TO hold the land it
self rather than to retain a claim for the money
invested in it. As he was OF unsound mlh9
during life he could not make such election. and
his heirs could not make the election after his
death. AS between the heirs ana the personal
representative the nature of the estate must be
determined by the facts in existence at the time
of his death. Il Vernon, 434; i'd, 1922 Whether
the facts show a claim IN favor OF the estate
against the appellee as executor, or show that
the proceeds of the land belong to said estate as
personal property. appellants cannot maintain
the action in the ahsense OF ayerments that there
was no administration, no debts, etc. 20 lnu.,
39S) Judgment affirmed
NEGLIGENT FIREs-PLEADING.
10000 The L., N. A. & G. Railway Company
VS.. Henry Hannah. Carroll z. G.
collars, Ut Is objected to the complaint that
it does not allege that appellant negligently per-
mitted the fire 30 escape from its right OF way TO
the land of appellee. After setting out appel
lants negligence in allowing dry grass and
weeds to accumulate and remain upon its track
and right of way at a time when n drought pre-
vailed in the county, 1t Is alleged that the APP
pelant, by its agents and servants, so negligent
ly conducted the running of It's engine That 1t
fired the grass upon its right of way and other
cOmbuslihle material upon the lands in the Vi
entity and lying between the railroad and appel
lees land. If grass upon adjoining lands was
thus neelgently fired, 1t was not necessary to al
lege that the fire lgnited upon the right of way
was neglgently allowed to escape. Judgment
affirmed.
| ACKNOWLEDGEMENTS
| 1O,339. H., N A. & G. Railway Company VS..
| Martha ]. Meadows White c. G.
Niblack, J.-Action to recover for colt killed
upon appellants railroad where the same was
| not fenced. There was no direct evidence as to
| the ownership and control of the railway on
| which the killing occurred, but as bearing upon
| the question a trust deed was introduced given
| by appellant to secure the payment of certain
| bonds and coupons issued by appellant and
! pledging the line of railway therefor known as
| the Chicago e. Indianapolis Air Line for their
| payment, and reciting that appellant had en-
tered into a contract of consolidation with said
| raiw way, etc. AS a mortgage security the deed
! was executed upon the evident assumption
| that by the contract of consolidation appellant
had become the owner, and had entered into
the exclusive control OF the line thus
mOrtgaged. The court was justified In inferring
that appellant was the owner aud in control of
| the c. & l. Air Line upon which the colt was
| killed. Judgment affirmed.
| RULING ON DEMURER-FAILURE TO EXCEPT.
9,747. Nugent VS.. Laduke ct al. Clarke C. C.
| Black, Con petition for rehearing. Where
/ gXRRnt .bVhrpnlinn m hiS
| demurrer to the complaint he valves the correct
ness of such ruling, but does not waive the right
] on appeal to assign as error that the complaint
does not state facts sufficient to constitute a
/ cause of action. Under such assignment this
court is not called on to determine whether the
complaint was good on demurrer, but whether
it was good after verdict. 1872 Ind, 1881 Petit
| ton overruled.
| NOTES GIVEN FOR UNPAID TAXES-CoNsIDERA-
| TON.
! 1878. State ex-rel Pettiohn VS.. Peter nlges
| Marion s. c.
| Black, C.-Suit by appellant as county treas
urer upon two notes executed by appellee
as administrator of George nlges, for
taxes alleged to have been due
| for taxes on property OF the decedent which for
| several years he failed to list Executive and
ministerial officers can levy and collect taxes
| only in the manner prescribed by law. They
| must keep strictly within the authority of the
tax laws, Cooley Tax, 49, If in the periodical
| assessments prescribed by statute there he omis-
siOns provision is made for. correction whereby
| the omitted persons and property may be placed
upon the duplicate. 1t does not appear that any
| method for the assessment and collection of
| taxes prescribed by law was pursued in this case
| The property not listed assessed
| placed upOn any tax book. No credit has been
| given for the taxes, and they remain unpaid.
| The attempt is to collect taxes by suit upon
written promise to the tax collector of an heir
of the deceased delinquent owner of property
| TO pay certain sum for taxes on such property.
| The method pursued was departure from the
directions of the statute, was contrary to public
policy and the notes were without valid con-
| sideratiOn, Judgment affirmed.
| Real Estate Transfers.