The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1883-10-17
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, 49,
Hon. W. e. Niblack. Chief Justice.
BANKRUPT LAW-FRAUI

Supreme COurt-Oct, 49,
Hon. W. E Niblack. ChefJustice.
BANKRUPT LAW-FRAUD.
S,219. Eliza A. Maxwell We. Harry Evans.
Parke c. C.
Elliott, J.-Appellant's complaint alleged that
appellees were private bankers; that she de-
posted bonds with them, which they agreed TO
keep safely and collect the coupons, and that
they fraudulently appropriated the bonds to
their own use. Evans answered, admitting the
partnership. but alleging that the bonds were
left With his so-pdrJner, Magill, and that he had
no knowledge of their deposit appropriation;
that appelees had been adjudged bankrupts
and were discharged, aud that appellant had
filed her claim and received her dividend. The
phrase 'fduciary capacity" used in section
Oily OF the bankrupt law means only technical
trusts, and does not apply TO the cases of agents,
bailees or factors Isl Ind, 27I; 81 N. Y, 3O3;
80 Am. b. 7l7) The provision in said action
which declares that "no debt created by the
fraud or embeZzlement OF the bankrupt" shall
be discharged by the bankruptcy proceedings,
does not apply to one who is not himself guilty
OF wrong. One partner may be an embezzler
ana the other be guiltless of wrong, but yet
liable IN civil action for the loss resulting from
bis partners crime. To such a case the law
does not apply. t95 U. s.. 704; 81 Penn. St,
answer was good. Judgment affirmed.
INSANITY INQUEsTs-NoTICE
1O.505. VIM. M. Nyce VS.. Orlando Hamilton.
Decatur G. G.
Elliott, 1.-THE purpose of the statute in in
quests of insanity is not merely to secure service
OF NOTICE on the person alleged to be insane, but
to secure his producJion i'll open court 1t APP
pears that appellant was in open court and re-
NAMED throughout the investigation; that the
clerk filed the answer required by statute, and
that jury was impaneled and the Issue tried
as the law directs. The whole purpose of no
tce was thus accomplished and harm re-
suited. Petition for rchearlng Overruled
DECEDENTs OBSERVATION-DISCLOSURES
IL ,o09 Martha Hoover VS.. Jos. B. Agnew.
Pulaski G. G.
collars, 1.-The statute giving the widow ana
right
and messuage of the deceased husband does not
require that any selection of the forty acres
selection Is Indicated by occupying and
using the land or claiming the annual
drops otS %nen wi with or taken
children the widow alone is entitled TO the pos
session. (29 Ind, so No distinction Is made
between first and second wife. The right of
occupancy includes the right TO the crops ma
turing thereon. (62 Ind, $40; 81 ID, 1921
Judgment reversed. e'
TAX sALEs-MARRIED WOMEN.
1884. William G. Ethel VS.. Sarah z. Batchel-
der. Madison G. G. eH
Howk, jim the first paragraph of her COM
plant appellee alleged her Overture, and that
her real estate had been sold for county and city
taxes, and that appellant had obtained "a deed
and held possession thereof without right: that
the amount of rent received by him from the
property exceeded the amount Of money paid by
him with all taxes interest AID PENALTIES, and
exceeded the amount necessary to redeem from
such tax sales. Prayer for an accounting and
that her tlJl6 De Qul6teQ. There was no allega-
ton that she had redeemed or offered to redeem
from the tax sales Appellant was entitled to
possession of the property without accounting
for the date of the tax sale. Section 203 of the
tax law of 1872 (ln force at the time) extended
The time in which married women might redeem
from tax sales. but IL gave her additional
rights For failure to aver offer to
deem the paragraph was bad. The second para
graph was in the ordinary form of the recovery
of real estate but as 1T does not appear that the
Judgment was rendered solely upon that para
graph and as a demurrer was wrongly Ovefruled
20 the first, the Judgment must be reversed. (49
Ind, AGO; 90 id., $40; 90 i'd, 49, Judgment re-
versed.
INsTRUcTIoNs--AcT OF 1881 CONSTRUED
1864. VIM. Drinkout VS., The Eagle Machine
works. Marion S. c..
Hammond, 1.-The provision in section $50 of
the code OF 1881, that when any appeal is prose-
cuted upon the question of the correctness of
instructions it shall not be necessary to set out
all tue evidence. but merely to state in the bill
of exceptions that the instructions were appli-
cable to the evidence, makes no change in the
practice with respect to Instructions. In the alb
sence of the evidence, without such recital, this
court would presume that the charges were APP
pllcable to the case made, go Ind, 376) The
prOviso makes no change in The rule that where
the record does not contain the evidence this
court will not reverse the trial court
the instructions given, unless they are
so radically wrong as NOT to apply to
Prac., 345.) It's objected to one of the in
strucIions that it assumes certain facts as
proved. Conceding that the instruction would
be open to the objections urged if the evidence
upon the facts referred TO was conflicting, yet,
as the evidence is not in the record. it must De
assumed that the facts were either admitted or
eonclusively proved at the trial. al Ind, ia;
So i'd, &c. II i'd, 81 Judgment affirmed,
MASTER Observation-Disclosures.
11,1Oe. Harmon Borehus VS.. Huntington
Building and Loan Association. Huntington
G.. G.
Elliott, IA cause was referred to master
commissioner to report the evidence. The com
tod ? hn fn0f htf r,nF h. xrf
dence. No exception was taken to the report by
either party, nor was any objection made as to
the correctness of the finding of facts, hut the
court was asked to give judment upon the facts
as found The court filed conclusions of law
upon the facts aud gave Judgment, to which the
petitioners excepted but did not challenge by mo-
ton or exception the correctness of the commits
siOner's finding of facts. Afterward the petition
ers moved for a new trial and that the testimony
given before the commissioner be made part of
the record proper for mandate etc. Held: By
falling to make any question as to the correct
of the finding of facts, by their omission to
require a report of the evidence and by their
upon the facts found, the petitioners waived all
question as to the correctness of the commits
sioner's report upon the questions of fact Man
date refused.
REMOVAL OF ADMINIsTRAToRs-PRACTI
1O.23O. James B. McFadden vs. James r.
Ross. Shelby q. G.
Niblack, G. 1.-THE petition for removal of an
administrator may be verified by any cOmpe-
tent person, and IL need not affirmativey APP
pear that he is interested in the estate. It. is OBJ
jected that the court erred in finding for the pc
titIoners without the Introduction of any evil
dence The answer did not controvert any
AllA IA l.,.N