The Indianapolis journal., 1883-01-16
THE COURT RECORD.

Hon. William A. Woods Chief Justice.

EsTATEs-PREFERRED cLAIMs-PLEADING.
1O,465. Hiram Bankenbaker vs. Bank OF
Commerce. Floyd G. G.
Niblack, J.-Samue Fl. Buskirk and three
Others, as attorneys, brought suit for divorce
| for Mrs. Bnwles and obtained "a Judgment for
$4,000 alimony. They toaK no lien on the judg-
ment for their fees, but afterward brought suit
against Mrs. Bowles herefor. Before trial she
died and her administrator was substituted as
defendant The court adgudged that the attor-
neys had an equitable lien on the ju gment for
allmOny for their fees, and that this was a pre-
ferred claim against Mrs. BOwleS's estate. Bus.
kirk had assigned his interest in said fees to the
Bank of Commerce, and this action to re-
qure the administrator of Mrs. Bowles's
estate to pay the same as a
bank to preference over the general cred tors
was adjudcated bv the judgment in favor of
said attorneys, and not having been appealed
from, il cannot now be eOllatera!ly questioned ed,
however erroneous it may have been.
Held: Also. that in this proceeding the general
creditors of the estate were not necessary par
ties. The administrator is the proper represent T.
ative of the creditors in the defense of all ac-
lions affecting their interests i'll the estate, and
t78 Ind, 353; r. S, 1881, see. 252l Judgment
affirmed.
DEMURRER TO EvIDENCE-PRACTICE.
9,691. Martha Plant VS.. william Edwards.
Cass s @.
Black, Con the trial of this case, and after
evidence had been introduced on hotn Sides the
plaintiff aemurred to the evidence of the de-
fendant. and the latter having been cOR. pelled
to join the demurrer, the court overrued the de-
murrer, ana upon the plaintiffs mutlon dismissed
the case. Upon demurrer " evidence the demur-
rant cannot make admissions In his own favor
nor have his evidence taken true. His
evidence cannot be considered. q Bibb, 527; 80
Ind SOL; Ia, 63; 81 Ina, 800; Gould Plead.
ch 9. pt 2, Sec. 53) No jonder demurrer
can be required wnlie there is any matter of fact
IN controversy between the parties. ID Phil. Ey.,
7S4l In this case there was still a couIroVersv
of fact. The plaintiffs admission included hIs
own evidence as well as that of his adversary
The burden OF proof was on the drinurrant, and
in rha OH s.f
fact was against him. The demurrer was, there
fore, irrrguiar and unau horned, and it was
error to require the defendant to join therein,
but that error is not presented here. After the
demurrer had been 0verruled the merits of the
Issue remained untrIed, and 1t was error to-
permit the plaintiff 70 dismiss. Judgment af-
tirmed.
COUNTY CLERKS MONEY RECEIVED ON JUDO
9,7S7. Commissioners OF Scott county VS..
James McFadden. Scott c. c.
Black, C.-By the statute sections 5, $50, 5, ,842,
Revised Statutes, 1881, county clerks are au-
JhOrized to receive money paid ON Judgments and
hod it in their official capacity for the person
entitled TO demand 1t, and refusal TO pay iJ to
such person is a breach of their official bond.
(63 Ind, Sl1 The an thOrity thus conferred does
not extend to the receipt of county orders. The
clerk has no right TO receive any thing but lawful
money in payment of a Judgment, and his
ceipt of anything else, without the assent OF tho
Judgment plaintiff, is not "A valid payment, and
does nor discharge the judgment (29 Ind, 495:
ID i'd, 1917 Nor does IL render liable his sure
ties. (29 ind, 294) Where tho clerk has re-
ceived the money from his predecessor in office,
this ~ payment to the Judgment plaintiffs law
ful agent, and exonerates the former clerk from
payment directly to the Judgment plaintiff
Judgment affirmed.
VENDORS STATUTORY LrEN--PAYMENT-PLE
ING.
l0.023, Mary A. Huffman vs. Peter Cauble.
Washington @. G.
Bicknell, Com.--The lien provided by section
79l Of the Coue of 1852, in favor Of the vendor
of land who has not parted with tho title and has
not received the purchase money, is not the
vendors lien established by the Court OF Chan
Gerry. This statutory lien is not waived bv taking
mortgage or other collateral security. IA
Ind, 151) TIE allegations that the money is
due and unpaid under the contract that deed
in fee simple was rendered and refused before
suit, ana that the purchaser has other prop.
sufficient. A defendant, In an action ON a
note, cannot show that all or part OF a