The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1883-12-25
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-Dec. FL.
Hon. Geo. V. Howk. Chief Justice.

VENDORS LIEN-TAKING OTHER SECURITY
1G,625. Bonam Fox, administrator, vs. Maria
l.. Fraser. White G. G.
B1cknell, @. C.-Large, having vendors lien
Tor unpaid purchase money on land owned by
Reynolds, the latter executed n deed of trust for
the benefit of his creditors; Large, with the other
creditors assen ted to the sale of the land to the
appellee and the appropriation of the purchase
money TO the payment of Reyn0lds's debts. Inc
trust deed embraced other property besides that
upon which Large had his vendors lien. When
he agreed to the deed and accepted the benefit
of its provisions he acquired an interest in the
other property. The trustees held all the prop
erty on condition that it should be sold and the
proceeds applied in payment of the creditors
Including Large. whose notes we're included IN
the schedule of Indebtedness. A vendor valves
his lien by taking other security. q Ind, 1OZ
IA i'd, 439; &c i'd, 3G4.) Large took additional
security for his debt upon other property,
and consented that all of it, including
that upon o vendors lien, is now
claimed shonld be sold for the payment of
himself and other creditors. This constituted
waiver of his lien. Judgment affirmed.
NOTE PAYABLE TO MAKERS ORDER.
10,612. Wilson N. Pickering VS.. Richard H
Cording. Tippecanoe, G. c.
Black C.-Appellant's complaint alleged that
the appellee executed a note payable TO his own
order and ndorsed upon the back of it certifi-
cate that he was worth $4,000 above indebted
ness and concluding: "And the same is in full
settlement of all claims and demands of every
name and nature between said company and
myself up TO date of this obligation" 1t was
alleged that lie delivered the note to one John
son from whom the plaintiff brought 10 before
maturity. note so made is nullity until In
dorsed by the maker. There can be no recovery
on such note unless the maker has indorsed it,
though he has delivered it to another lS2 Ind;
$50; Dan. Neg; Just, sec $50; "a
Am. r. $3.50 Tho name of the maker
on the back cannot be discon.
and be regarded as blank Endorsement. l45
Conn.,, 149) To perfect the note the writer
must st least import purpose of the maker to
not amount to such an Endorsement. Judgment
affirmed.
PERSONAL AND REAL EsTAEE-TAXEs.
9153. William II. Morrison Dempsey Sey-
bold. Clay C. C.
Niblack, J.-Under sections 100 and 40 of the
tax law of 1872, when q taxpayer is the owner
the county, the real estate may be held liable
for the taxes chargeable against the personal
estate, and the personal property Will be liable
Tor the taxes assessed against the real estate
the distinguishing difference being that the
personal properly Is primarily haDle Tor an tne
taxes due from the owner. But where the real
estate is owned by the husband and wife by en-
tiretes it will not become liable for taxes as
sessed against the personal estate of the hus-
S Ss9 % "S a., & $751; S72; ID, 4Ia
G8 i'd, 245j To the extent that the real estate
held by Hart and wife was sold for taxes, as
sessed on the personal property of Hart, the
sale was void. Judgment affirmed.
ACKNOWLEDGEMENTS MADE BY DECEASED.
11,039. Commodore Wood VS.. The State.
Allen @. G. tsa ei.au +
Elliott. J.-Appellant was convicted of m~n-
slaughter. 1t is not improper for the court TO
appoint attorneys to assist the prosecuting at
torney. ga Kansas i1S9; Graft! 6S4 81
CAL, 65; 10 Ohio ST., 3e41 Threats of the per-
son slain are admissible in favor of the accused,
for the purpose OF showing what was in his mind
when the homicide was committed. (37 Ind,
SO And of determining who was the aggressor
(l6 Ill., 15) Wood and SheIlner were in Ballou's
store, aud it was shown that Shellner threatened
to pound" Wood. Wood got up to go out, when
Shelner passed out in front of him, and stood
outside looking in. A witness testified that ne
ommunlcated Shellner's threat TO Wood, and
appellant then offered to prove by
the same witness that he heard Ballou
tell Wood that he better prepare to defend him
better look ont, and that he would not he in
Woods place for a thousand dollars. Ain 5st
immediately, after Wood left the store Shelner
assaulted him. Appellant had right TO show the
purpose of the deceased, and also what appeared
TO HIM to be that purpose. The threat of the
deceased in the store the waiting outside, the
assault on the accused, and the statements
made to him so near the moment of che en-
counter, ought all to have gone to the jury to
have enabled them to judge whether he IN good
faith believed himself to be IN danger of great
bodily harm. ~ Ind, 42l Judgment re-
versod.
Observation-Disclosures
10361. Henry Robertson VS.. VIM, II. Huff
man, Washington c. G.. .a.Ha u
Hammond, J.-W. II. and John Huffman exc
cuted two notes to appellant, who assigned them
TO Casper, and gave nm n mortgage to Secure
their payinent This mortgage was foreclosed
and Judgment obtained by Casper against
appellant and the Huffmans. Appellants land
sold TO pay the debt and Casper assigned
the Judgment 10 apneIlanb ana the latter sued on
it and asked to have set aside a conveyance Of
forty acres of land made by w. Fl. his wife be-
fore said Judgment was rendered. The wife an
swered that the land was bought with her
money, and by mutual agreement and without
fraudulent Intent the deed made to her hus-
band to hold in trust for her. This answer was
good. (36 Ind, 166; So i'd, 3S2; "A i'd, 56Oj
The court held the original judgment void be-
cause one of the notes was not quite due when
1t was rendered For this, error the Judgment
would probably have been reversed by the Su-
preme Court on appeal. t5l Ind, 46) But the
Judgment was not void Us Ind, %; SO i'd, 344)
1t could not be collaterally attacked and It's
payment by appellant gave him a good cause of
action against w. H. and John Huffman Judg-
ment reversed.
OBSERVATION-DISCLOSURES
COMPLAINT.
10.75S, Henry G. Klmble VS.. John Nj. Seal.
Union G. G.
Franklin, C.-Where there has been demand
and a refusal to account. one partner may sue
the other for dissolution, accounting and set
Element. (33 Ind, 1877; As i'd, 2+T; l Story Ed
sec. 671) In such case the court has jurIsdic-
ton of the partnership assets TIC deal with as
equity requires. AT the time the suit was begun
the plaintiff believed that all debts due the firm
were collected. Upon the trial he discovered
for the first time that tile defendant had col
lected 5000 of the firms money few days after
the suit had been commenced. Under the rules
of equity practice this subsequent fact could
be brought into the suit ana considered in the
final determination of the case. The partner
ship affairs could not be settled without it. But
the original complaint must show cause of ae-
tton or the supplemental complaint will not be
allowed. ga Ind, 332; % i'd. So; % i'd. 81 G;
az i'd, 4G2; 81 i'd, 465. Judgment affirmed
NEUTRALITY-SUSPICIOUS.
1926. Isaac s. Wright VS.. Margaret Nipple.
Carroll G. G.
Best, C.-Appellees sued for breach of war
ranty of deed, alleging that at the time the
conveyance was made Others than the grantors
owned an undivided third of the land, and that
III a portion suit brought by such parties one
third of the land was set OFF to them. This was
a sufficient averment of eviction. 80 Ind
42J The answer averred that tho .two-thir(ls
was all the CraEtors intended to convey and
that by mistake the deed was made to include
all the land. The most that these facts tended
to show was that appellants were entitled 10 a
aud the mere mistake itself, so long as the in
strumcnt remained unreformed, constituted no
defense. Had appellants obtained "A reforma-
ton, the instrument, as reformed would have