The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1883-11-01
RECORD OF THE COURTS.
Proceedings in the Various Courts of
Record Yesterday.
Full Abstract of the Opinions Rendered by
the Judges of the Supreme Court
Work in the Local Courts.

Supreme Court-Oct. 81.
Hon. W. E, Niblack, Chief Justice.
NoTE-sAILURE OF OBSERVATION-DISCLOSURES.
10,522 John j. Scotch VS.. VIM. Randolph.
Huntington G. @.
Howk J.-suit by appellee as indorsee of a
note payable to order in bank in this State.
Answer, chat the payee of the note was engaged
in the marriage dOwry insurance business, and
that the note given for a certificate for 120
shares of stock in the association represented
by MIN, TO be issued within thirty days from
date OF the note, and that no such certificate
was issued, of which fact appellee had notice
before be took the note; This was a good an
sWer of failure of consideration, and the de-
murrer to 1t was enormously sustained. The
allegation in the complaint that the note was
Endorsed "f0r a valuable consideration before
maturity, and in good faith" was the averment
of conclusion as to the words good faith. If
he received it in the ordinary course of business.
for value before maturity, and without notice OF
any defense by the maker, the legal conclusion
from these facts would be that he was the
holder of the note in good faith, The averment
OF good faith is not equivalent to taking IL with
out notice. Judgment reversed.
PRoMIssORY NoTE-FRAUD-BURDEN OF PROOF.
10,e9s John Mitchell VS.. SOtna TOmlInson.
Henry G. C.
Hammond, J.-suit by appellant as indorsee
of promlssory note. The second paragraph of
answer averred that the note was obtained by
Porter, agent for the Western Medical w orks,
by fraudulent means; that appellee was old and
an invalid, and understood that he was signing
n contract of agency and not note; that Pritch-
ard, when he received the note, and the appel
liant, when it was Endorsed to HIM, each had
notice of the fraud in its procurement The
averment of notice made this paragraph GER
tainly good. The first paragraph did not aver
notice to PPichard and appellant but alleged
that Porter procured the note by administering
to appellee a kind of potion medicine which
benumbed his sensihilities and by which the
usual faculties of his mind were greatly i'm
paired, so that what was done seems but an i'm
preston upon his mind. of which he has no rec
objection. This answer AYERS facts which show,
with facts
condition was such to relieve him from the
charge of negligence in executing the note. (7S
Ind, 403; SO i'd, 22l) In an action by an in
dorsee upon note proved by the maker to have
been obtained by fraud, the burden is upon the
plalntH to show that he Is q bona fide holder for
value before maturity and IN the regular course
OF his business. (2S Ind, 1873; ~ ID, SO; 50
id, 447) Judgment affirmed
BILL OF Observation-Disclosures
1o,549. Thomas j. Jones Fernando Jones,
Madison G. c.
collars, i'm an action to quiet title. the court
at its June term, 1892. ordered partition of the
land on the croSS-cOmHlaint of the defendant. A
oil OF exceptions was filed on July rs, 1882, in
vacation, but the record does not show that the
time was given for fling the bill and it cannot
be considered as in the record. On Oct "a, 1882,
the commissioners, reported that the land could
not be divided and 1t ordered sold. After
this appellant filed motion for new trial on
the ground that the finding was not sustained
by thS evidence, and that the court erred i'll ex-
Guiding evidence. This motion was too late to
call in question the decision OF the court in or
uerlng partition. Inls case faIs within the de-
cision in Jones VS. Jones, No. 10,55O, this term,
upon Ine authority OF which the Judgment is al
f1rmed
RIGHT TO OVERFLOW LANDs-oWNERsHIP OF ICE.
9,141. The Brookville, ETC., Hydraulic Com
pany VS.. VIM. Butler ct al. Decatur G. G.
Elliott, J.-Under the internal Improvement
act of 1886 the State seized certain land for
canal purposes, and all the right of the State in
the canal and it's aDpurtenaneos afuerward
passed to appellant Adjoining the canal was a
low piece of ground upon which a large
pond formed by the water thrown from the
and 1879, and was cut and Appropriated by the
appelleee. The right to flow lands conveys no
right to the land itself, but vests mere
lnent in the possession, The right which appel
liant had in the lane adjoining the channel of
the canal was mere easement. The pond is not
shown to have been reservoir of the canal, nor
to have constituted any part of the channel. All
that can he inferred from the OF the low
ground by appellant and its grantors is that
there existed right to overflow it. A preserip-
tive right can never be broader than the claim
evidenced by user (Phear Wauer-rights, 90.)
There is some diversity of opinion on the Ques-
ton whether the owner of an easement to flow
another's land is entitled to the ice which forms
on the water covering the land,
but our decisions declare that the ice be-
belongs to the owner of the servient estate. (33
Ind, 402; % i'd, 80; 80 ia, 500. See also l
Burr, 1885, A N. H., $50; 81 Pick, 292; As Md,
337 lis Mass, $40; 10S i'd, 1879 Where the
is of such character as to establish an
it a waste-way for surplus water the right to
gather ice which forms on the pond Is in the
owner of the fee, ana not in the owner OF the
dominant estate. Judgment affirmed,