The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1883-04-07

as Administrator, he may she III his Individual ca
pacity; or if the money sought To be recovered
WON'T be assets lie may sue III his represen tative
capaeity (6 Blkf,l2O Is Ind, All, lWms. IGX'rs,
620) Surviving partner may make bona tido
transfer of any of the assets of TIE firm for the
purpose OF closing up lis business. go Ind, 1871;
acts 1877; y. 1876 There was evidence tendlng
to sustain the finding, and IL was not contrary To
law. Judgement affirmed.
E-CRUELTY-CoNDo DONATION.
1.O64 Thomas Rose VS.. Helen NJ. Rose
Morris, C.-The condonatiou which wife
makes of tue cruel conduct of her husband by
diriona, and when the cruel acts are
Tspea,sa ,Sn REEVES the orr preceding
upon condition that they should not he repeat ted,
| ana when they repeated it affords good
cause for u divorce. Judgment allirmed.
JUsTIcEs-GARNIsHMENT- PUBLICATION.
1896 Clinton Newman Charles II. Man
ming Hendricks G. c.
Woods, c. 1.-The record of Judgment rem
dered Ivy justice of the peace or other tribunals
OF imited jurisdiction, IN order 10 be valid must
show aifrmatiyely that Jurisdiction was ac-
qured. 90 Ind 397; AT id, 1881 And where,
in proceeding In attachment before Justice
! the summons against the principal defendant is
returned without service and no property has
| been attached, there can be no valid Judgment
against garnishce defendant until notice by
publication to the principal defendant, and the
record must show that such publication was
made. (43 Ind, $50; "a i'd, 53l; 81 id. 3O3; 26
| I'd 44l.l That the pruner notice was in fact
published cannot he shown by evidence aliunde.
Judgment affirmed.
SALE OF PERSONAL PROPERTY FRAUDULENT
SILENCE.
1o,434. WIN. W. Parrish vs.. Arthur ]. Thurs
don. Shelby c. c.
Elliott J.-Apppllee sold TO appellant buggy
ana harness, receiving therefor note signed by
l.. X. Parrish. suppOSiT z the maker TO lie "A ma II
OF that name who lived near Shelby willie and was
wealthy, but 1t turned out TO be another man
living in Hamilton county, who was worthless
When the appellee discovered his mistake lie
tN,al Fltar ..,,A
cry. This conduct 4f appellant, knowing as he
did that appellee understood the signer 10 be tho
I'hrSt-named man, amounted to fraud. There is
no contract in such case, because there ia no
mutual assent. (62 Iud 2Sl; 1O3 Mass, 256: 4
! NJ. aud W. 800; Story Sales, sec. 1863 vendor
| may MAINTAIN replevin for property obtained
| from him by fraud where the pronerty has not
passed 10 bona fde purchaser. rs Mass, SO:
% Pick, Is; Story Sales, sec 172; Wells Re-
necessary TO lender back the note re-
ceived 1t was proper to admit evidence
believing it TO Ire that of the Shelby county Par
rish and that appellant knew it not his
note. stephens Ev. ., -; Wharf. Ev. sections
21, ~. 3d. SO, Greenl. Ev., section 53) judy
neut affirmed.
sURErIEs-RIGHTs UNDER SECTION GIG.
9.651. Joseph V. Rawlins VS.. Henry c. Duncan
Monroe c. G.
BicKnell, Con petition for rehearing The
relief granted to snrctles by section 676, code Of
1852, is not iMited to T. Ose only who have been
declared snch by proceedings in the original suit,
Dut extends also 10 Such as nave been adludgeu
Ia he snretles in IA subsequent suit. Petition
Overruled.
EXCEPTIONS TO ADMINISTRATORS REPORT
PRACTICE.
9.917 Peter Conger vs.. Andrew L. Babcoek
Fulton G. c.
Howk. J.-Appelant excepted to the final re-
port OF the appellee administrators. alleging
that the decedent held u sheriff's certificate for
land sold to her. and that the appellee, after
taking ont a deed for the lard, returned it, pro-
cured tho certificate again and obtained
an order OF court TO sell 1t at public
auction; that If, instead of selling the
certificate, he had sold tho land itself he