The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1883-01-05

WITNESSES.
9;il4. L D. & 8. Railroad VS.. Isaac Pugh'
Best, CA ruling made at one term cannot be
preserved by filing a bill OF exceptions at u sub
sequenJ term, unless time was given within
winch to file II during the term at which the rui-
lug was made, and this is so, even though the
motion for a new trial was not passed upon until
she subsequent term, and time to file IA bill was
Then given. IA Ind, 353; 10 i'd. n; rs id,
1881 Such bill will embrace the evidence and
the ruling upon the motion. but not any ruling
made during the trial. 1913 Ind. pol; rs i'd,
SEQ Nor will such bill bring instructions into
the record. C73 Ind, 77J In estimating the
damages for land appropriated by a railroad
company, the jury may consider the opinions of
witnesses as to the value of the land Immediately
before the appropriation, and the value of the
several parcels immediately after the approprta-
ton. (51 Ind, 23S1 The opinion of witnesses
qualified to speak as to the value of property is
clearly admissible for the purpose of determin-
ing such fact. Judgment affirmed.
DEED-DELIvERY-PossEssIoN OF GRANToR.
.9,702. Ruth A. Squires VS.. Aaron Summers.
Martin c. c.
his wife, made a deed TO his two sons and the
wife of a third and handed it TO the husband of
one of the grantees, saying: Take IL and give
1t to some one to keep while [ live, then to be
recorded" 1t was then given to Paulina, who
Kept IL IN a drawer untll Richard's death, when
it was duly recorded. After the deed was made
Richard expressed dissatisfaction with it and
said he would make a new one.
Held; A good delivery of the deed. If a deed
be duly delivered it will operate though the
grantee suffer it to remain in the custody of the
grantor. Il Johns Ch., 240; . Barn. 81 Cross.
671J The delivery to the husband OF one of the
grantees was for the use of all. az Ind, 343l
The dissatisfaction expressed by Richard after
the completion of the transaction could not i'm
pair the effect of the previous delivery of the
deed. &c Ind, 3Sl) Judgment affirmed.
NEUTRALITY-SUSPICIOUS..
opal. Ephriam Allen VS.. Benjamin Frazee.
Rush c. C..
Woods, C. 1.-The maker of n note is not
estopped from setting up adefense to it unless, at
the time when he assured the purchaser of the
note that it was all right, he had knowledge OF
the frauds which he claims as a defense. Allen
made a mortage on real estate to secure certain
notes executed by him, and a~fterward sold the
mortgaged premises To P and O. agreeing with
them that for whatever sum said mortgage debt
might be settled, less than its face, the parties
should divide equally between them. This con
tract was not void for champerty. The agree
ment was not between a defendant to the action
and a stranger, but between cOdefendants. 1t is
not shown that p. and G.. purchased subject To
the mortgage, or assumed its payment; so that 1t
does not appear but that they were vitally in
terested in making a good defense to the action.
Having been made defendants to the action,
they had a right to make all defenses possible,
and as against the plaintiff they had a right to
make such agreement as they chose for sharing
the expenses and benefits of the litigation. 90
Ind, 1885,; 53 i'd, 3l7; Is i'd, no Judgment
reversed.
BILLS OF ExoEPrGoN-coD OF 1881.
1852. Madison Nj. Barley VS.. George F.
Dunn. Grant G. &.
Franklin, C-The words in n bill of exceptions
''and this was all the either verbal or
written, that was introduced, heard or read on
the trial" are not equivalent to the words, "and
this was all the evidence etc, and are not snf-
ticent. (61 Ind, 279; 81 i'd, 40S) Under the
code of 1852, n bill OF exceptions filed after the
/ term would not bring forward exceptions to ru!
ings during the trial, but this provision is now
changed by sec. 626, Il. 8. 1881, which provides
that the motion for new trial shall carry for
ward all exceptions TO the time of ruling on snch
motion, and time may be given TO reduce the c&-
ceptions TO writing. The Instructions are not
in the record. Judgment affirmed.
IN 1OI NJ A GH Daftunnd ~
Hiram link. Washington c. @.
Bicknell, Com.-Suit to recover the value Of
not fenced. The damages were not excessive,
and there was evidence tending to support the
verdict. Judgment affirmed.
cIrIEs-LEGIsLATIoN AGAINST FIRES.
9,567. Lutte Clark vs.. City of South Bend. st.
Joseph c. G.
Elliott, 1.-The question presented is, whether
an incorporated city has the power to adopt an
ordinance providing that no person shall keep
more than five tons OF straw on one block at one
time unless the same be enclosed within a fire
proof inclOsure. The power to prevent fires is
among the incidental ones of a municipal cor
p~oratlon, and Is IN the nature of a police power,
Il Dill. Nun. Corp, sec. l4l, 1431 The colleo-
ton in great quantities of "a material so easily
ignited as straw Ia an act which the municipal
authorities may, AS a matter of general welfare,
legisiate against, and it is hot going beyond their
po wers to require it, to he kent within q fire
proof Enclosure. Ill Mich, 425; II Me-, 4O3; 7
Cowen, 3491 Judgment affirmed.
CHATTEL MoRTGAGE-sAw AND GRIsT MILLS.
1898. Andrew Price VS.. Millicent Malott.
Grant c. G..
Franklin, Com. The question presented is
whether the recording Of a mortgage on a saw
hill and grist mill in the record of chattel mort
cages will operate as constructive notice to the
purchaser OF the mortgaged property. Appellee
claimed to be a purchaser OF the property with
out notice OF the mortgage, but her answer
, makes no claim to the land upon which the mills
were situated, so as to connect the ownership of
one with the other, nor does it show that the
property was attached to the realty, or that it
| nah ~ hA Va hAnn pnEtlr afanha a tfI,nr la
jury TO the freehold. The answer rather shows
that the parties treated the property as person
atty. Where property is so treated and intended,
it may be held as such. (31 Iud., Ala; So i'd,
1873; 40 i'd, 40, l42; II i'd, 44O.) Saw and grist
mills are not necessarily real estate, but may or
may not be such according to circumstances and
the intention of the parties. Judgment reversed.
FRAUDULENT ACKNOWLEDGEMENTS.
1924. George P. Heckelman VS.. Henry Rupp.
Harrison {. c.
Howk, jim an action to set aside convey
ances of real estate as fraudulent against credit
ors, such conYeyances are not the foundation of
the action and need not he filed with the com
plant. The alleged fraud is the gravamen OF tine
action in such a case. 40 Ind, 3d. 4 i'd, 22S0
The fifth instruction was erroneous. IL assumed
the truth of alleged facts and circumstance
which were denied, and in issue between the
parties, and told the jury that these assumed
facts were badges of fraud, to be considered by
them as such in determining the question or
fraudulent intent. The facts are to be found by
the jury from the evidence, and are not to be as
sumed as true in the instructions, Judgment re-
versed.
The following cases were also decided:
9,6i5. Samuel kiser VS.. John w. Loyett. Mad
ison c. C. Reversed. Best, c.
$3.50. Edgar A. Brown VS.. Adams L. Ogg.
Hancock c. c. Affirmed. Morris, Q.
Superior Court.
Room No Hon. Napoleon b. Taylor, Judge.
Mary Ogden VS.. Adolph Click, appeal from
Thompson, j. 2. Dismissed by agreement at de-
PENDANTS costs.
silas j. Trick ct al. VS.. Mary Trick et al. R. o.