The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1883-05-31
SUPREME COURT RECORD.

Hon. William E. Niblack. Chief Justice.


that the firm debts are all paid and that the
only assets OF the firm unsettled Individual
accounts of the partners aud stating explicitly
the nature and extent Of the firms indebted
ness to the plaintiff and the specific sum due
from each OF the partners. The words true
and complete" as USED in the statute authoriz-
ing copies of records TO be used In evidence, are
not technical and the words "fuli, true and cor
rect, are their equivalent in meaning. Where
the transcript OF Judgment has been read in
evidence, the original papers in the case, pro-
perly identified, are competent evidence, not
only in the court in which the Judgment was
rendered, but in any other court. (6l Ind, 5O3
70 Id, 579J Judgment affirmed.
PRESUMPTION OF MARRIAGE FROM coHABITA-
TIoN.
$500. George Teter James A. Teter.
Hamilton &C.
Elliott, J.-Appellant and appellee both claim
10 nave Inherited certain land from their mother.
the case turns upon the validity of marriage
between the mother. Mrs. Teter, and one Clay
ton. At the time they were married Clayton had
q wife living in Ohio, but believed that she had
obtained a divorce from him, but, in fact ner
suit for divorce had been dismissed before de-
cree: Some four months after their marriage,
Vhe nrst vile did, however, Obtain divorce IN
this State, %
Held: The marriage of Mrs. Teter and Clay
ton being void by our statute (R. s., 1,024), it
could not be ratified or validated. Tyler Gov,
1888; LA Mass, 566.) But the court should have
presumed marriage subsequent TO the decree
q divorce rendered In this State from The co
nabltat1on OF the parties, who acted In good
faith and were innocent of any wrong intent.
Where there is enough to create foundation
be repealed only by the most cogent evl-
9 9sa! to the contrary t27 AID: L. T.,
presumption of marriage having been created by
proof of living together ana COLLABORATION as
husband and wife, it the duty OF the court
to give the appellant the benefit of the presunlp-
reversed.
CERTIFICATE OF NEUTRALITY-SUSPICIOUS.
lO,015;. wm. H. McCurdy vs. Mary E. Bowes
Elliott, IA certificate which merely &C.
knowledges that a certain sum of money is due
n promlssory note or bill OF exchange, and is not
negotiable as commercial paper. The assiguOr
OF such certificate is not bound as lndOrser
OF a note or bill. (35 Am. R., 144; "a H., 176
Is n. Y. 623.l Nor is the assigaor of such an
instrument liable as the indorser Of a nOn-negO-
TABLE note, because iG contains promise to
pay, and is made payable out of specific fund.
Il Dan Neg Inst. ed, sec. 50.l Nor does the
Ss sLsloT of OF such an instrument mpledly
I37 Ind. 90; Is id. 265; 10 i'd, $50: Dan. Neg
Inst, sec. 729.) The fifth paragraph of the com
plant was for money had and received, ana lie
clearly good. The court erred in sustaining the
demurrer to 1t. Judgment reversed.
JUsrIcEs-cRIMINAL CAsEs--MANDArE.
1873, State, ex rel. Jacoby, VS.. Alex. Cress-
niger. Huntington C. G.
collars J.-Under the statute governing trials
OF criminal cases before justices, a convicted
party is entitled to an appeal upon asking for it,
aud Hing proper recOgnizance When this is
done, 1t becomes the absolute duty of the Justice
TO make out a transcript and file it with the pa
pers In the clerks office, ami il from neglect ig
norance or perverseness he fails to do so, he may
be compelled by ate to do So even after the
expiration of the thirty days allowed by the stat
ute for perfectine the appeal. CIT Ind, 1855; 50
idp 1879 Judgment reversed.
NEUTRALITY-SUSPICIOUS.
S,908. James r, Malone va. Henrietta Stick.
ney. Lake G. c.
Hammond. jim an action of repevin the
property was described az follows: none stock
of dry goods. notions, fancy articles etc now in
store occupied by them on Main street," etc. the
context reasonably showing that the word
"them" referred to the defendants. This de-
serfption was sufficient to make the complaint
good after verdict. $50 Ind, 259; 60 i'd, ae2 -
An offer to prove certain facts which would he
legitimate evidence In the case will be unavai
ing on appeal unless 1t is shown by whom or
what kind of evidence the proof would he made
The witnesses may have been incompetent or
che evidence mere heresay, and presumptions
will be INDUCED in favor of the raings of the
trial court unloss the error is apparent from the
record. Where counsel have agreed that certain
parts of deposition may be read in evidence au
the trial IL Is not error to exclude the deposition
when onered As an entirety In sneh q case
only the parts embraced in the agreement Shall
be offered. Judgment affirmed.
MARRIED woMKN-PARTNERsIIP- OF 1879
CONSTRUED.
9,649 Benjamin Haas VS., Daniel J. Shaw ct
al. Shelby @. G.
howk, J.-Complaint by appellants to recover
FOR personal property sold to appellee and his
wife, who were partners doing business under
tile firm name of Shaw d. Co. The wife ans
wsred cOverture, to which a demurrer WAS over
ruled. The case involves construction of the
married wOmen's act of 1879. While the pro-
visions of said act must be literally construed,
yet, being In derogaton of the common law,
they are not to be enlarged by construction be-
yOnd the plain meaning of the language used
(Dwarie's Stat, 257: SO Ind. 245, II i'd, 55S1
The statute did not wholly abrobste the COM
mon law rule which renders q married woman
incapable OF binding herself by an eXecutOry
contract, hut authorizes "a married woman to
carry on any trade or business. perform any
labor or service ION her sole and separate
| account" and not otherwise She can
nfraa
in connection with her trade business,
| on her sole and separate account, but not on any
other account. There Ia nothing in the act which
authorizes her to bind herself by contract of
co partnership with her husband or any one else
or to carry on any trade or business or perform
any labor or service on the joint or co-partner-
ship account OF herself and any other person.
Similar laws have been thus construed by the
courts of New York and Massachusetts. g Al
len, 1877 i'd. 412; 5 id. AGO; so Barb, 1875; 81
i'd, 222) Judgment affirmed.
NoRTGAGE-DEFEcTIvE Observation-Disclosures
10,263. Travellers Insurance Company VS..
Dan Yount Montgomery q. G.
Nioack, jim 1867 Troutman and wife mort
gagged certain lands to YOunt by the following
description: "All that part Of fifty nine acres Of
Binnage, In the north fraction of the northeast
quarter OF section 3, in town
south OF the north line of Sugar creek Also,
all that part of the northwest quarter
OF said section 3 which lies on the east side OF
Sugar creek supposed to contain "a acres said
premises being the mill tract owned by the mort
gagers." Afterward the appellant took a second
mortgage on the same property, but desert bing
1t by netes and bounds Tho reference to Sugar
creek constituted that stream IA monument, and
aided materially In the designation of the lands
intended to he mortgaged The assertion that
the lands composed the mill tract owned by the
mOrgagors still further aided in giving certainty
to the description, which was sufficient to put
subsequent purchasers upon inquiry and to
serve as constructive notice OF the lien created
by the mortgage. g Wash, r. p. 63l, 632
Wade on Notice, sec. 1881 A complaint which
0pRpriheA n nd han
AYERS extrinsio facts, giving more particular
and specific description of the land, is not com
plant to reform the mortgage, and under suoh
averments parol evidence is admissible to show
the land intended. Judgment affirmed.
The following cases were decided May 30:
~ 81 Ir,aa. i. L. In.I