The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1883-01-04
RECORD OF THE COURTS.
Proceedings in the Various Courts of
Record, Yestcrd ay.
Full Abstract of the Opinions Rendered.
by the Judges of the Supreme Court.
Supreme Court-Jan. 3.
Ion. william A. Woods. Chief Justice.

Hon. William A. Woods Chief Justice.
PRoMIssoRY NoTE-CoLLATERAL SECURITIES.
9,16o. John H. Smith VS.. Willard FELTON,
Montgomery, G. G,
Elliott Where one has pledged notes as
collateral security he has no right to them with
out showing that he has performed the engage
what Is stated in appellee's complaint 1t Is plain
that he was bound to pay 500 before he could
rigltfully take from appellant the note depos-
tied as collateral security. The alleged tender
was unavaing because 1t was not kept good by
bringing the money into court. ca where a
plaintiff shows that he has assigned a prOmls-
sorry note to the original payee lie must, In order
to make cause of action upon the first assign
ment, show THAT it came back to him by due as
slgnment or rightful transfer The complaint
shows title out of the paintlf into the person
he Is seeking to charge as an assignor, but fails
to show that title was regaind.
81 The holder Of note deposited as
collateral is not bound to when it
appears that the makers died insclvent before
maturity az. The general rule Is that contract
must be rescnded in whole, and where there is
nothing more shown than that there was no re-
scissiOn, the Inference is that the whole transao-
ton was annulled. 70 constituting the third par
graph Of plaintiffs complaint it shows no title
In him to the note. Judgment reversed.
APPEAL BoND-wAIvER-CoNTRA CT-EvGDENCE
SIPS. William PednIck Charles Post, adj
mlnlstrator. Marion c. G. Woods, q. j. The
submission of u Gauss by agreement and fall-
uTe either by motion or plea to object TO the
want of an appeal bond until after the expira-
ton OF the year within which, by leave OF court,
tHb OMISSION might 90 relneuleu IN "a WhlNtT VI
such bond. "a Ind 265 rs i'd, 500. schur-
man agreed to transfer TO appellant II half inter
est IN certain leases Tor $500 in case said sum
paid within three months from date, of
which appellant paid 5000 ut the time. The con-
tract was afte-ward resciuded and
Schurman agreed TO repay the 5000.
gave him a receipt, showing for what purpose
the money paid. Heidi In a suit by appel
liant TO recover the balance of the money so paid
by him, this receipt was material and competent
evidence for appellant Held, alsothat the 5000
was not paid foran option to buy, but as pur-
chase already made; time not of the essence
of the contract, and appellant was entitled to
recover the balance OF the purchase money (53
Ind, 1851 Judgment reversed.
SETTLEMENTS OF COUNTY OFFICERS.
1867. Weems Heagy vs. The State ex rel.
Ferkmer. Madison G. c.
Elliott, 1.-The provision In the act OF Dec.
81, 1872, making the accounts of county treas
urers conclusive evidence of the demand OF the
State against them, repealed by the act of
March 81, 1879, which declares that settleme 8
made by officers shall not be conclusive. is
within the power of the Legislature to ci dnee
tho rules of practice and evidence, Cooley
Const. Linn, 4th ed, 353, 457, AGO; "a Ind,
54S) Petition for rehearng Oyerrued.
ADOPTION OF HEIRs-HUsBAND AND WEE.
9.4S1. Elizabeth King vs. Isaac Davis. Mont
gomery, C. G.
Nback, Isaac Davis and his wife Jessie
united in proceedings to adopt their heir an
illegitmate daughter of appellant; afterward
said Jessie died sliced of 2 large tract of land,
ana appellee as her only heirs. 1t is conceded
that appellant inherited twothirds Of the land
If the adopted child was the lawful heir OF Jessie
Davis; INT 1t is commended that husband and wife
cannot join iii such adoption, aud that as to Mira.
Davis the proceeding s are void. This view can
not be accepted. The obvious purpose of the
statute was To authorize the incorporation Of the
i, children of other persons into families desirous
OF receiving them, aud the reasonable constitute
ton of the statute appears to bs that wife may
unite with her husband In such proceeding, as
from the very nature of things the interests of
the entire family ara necessarily involved IN
the object sought to be accomplished. (Soe At
Ind, 1876; 81 i'd, 32S.) Judgment reversed.
Woods, c. J.-Whle concurring in the wisdom
of a law which should permit wife to iolu her
husband in the adoption of child, do not
think that, under the statute, she has that
power. The right cannot, by reason of the gen
er2 words of the statute be regarded as extend
lug to any person under general legal disability.
And if the wife may JON the husband in adopt
ing she may adopt without his concurrence or
consent
PROMIssoRY ACKNOWLEDGEMENTS OFF.
9,612. James NJ. Huston vs. First National
Bank, etc. Wayne G. C.
HOwk, 1.-THE contract of the assgnOr of a
note not payable in bank in this State is a
warranty that the maker is liable on the note
aud able to pay it. go Ind, 522; 10 id, 3Sl;
81 id, 1881 In suit on such note against a
remote indOrser 1t Is Necessary to show either
the use of due diligence against the makers a
sufficient excuse for the want of such diligence.
| That one OF the makers is married woman Is "A
sufficient excuse for not suing her, and the re-
quest OF tn asslgnOr not to sue the other maker
| is sufficient excuse for not suing him. (33
Ind, $685. Al i'd. $780, 20 i'd 215) But while
these excuses were alleged there WAS no evidence
| to support them. In a suit against such remote
against his immediate assignee, must aver that
he acquired such set-uff before he had notice of
the assignment to the plaintiff; hut the burden
| of showing notice of such assignment to the de-
1 Il