The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1883-05-14
THE COURT RECORD.
supreme Court-May IL.
OUTGOING CLERK-LIABILIrY FOR MONEY &C
LECTRD.

LECTED
9,7S7. Commissioners OF Scott County VS..
James L. McFadden Scott C. c.
Howk, J.-Claim by appellants against the es-
tate of John II. McFadden, former clerk OF the
county Tor money collect on a Judgment in favor
of appellant. The evidence showed That all the
money so collected WAS in the possession OF Will
son, who succeeded McFadden as clerk, having
been the latters deputy, after Wilson entered
upon his duties as clerk, and was never in posses
sion OF MeFadden. Upon this state of facts Will
son became as liable for the money and his pre-
decessor became as fully discharged from liabil-
tv, as he would If he had formally turned over to
Wilson, ne clerk, such money. II makes no differ
ence in legal effect whether the outgoing clerk for
maly pays such moneys to his successor. or the
successor, having already. as in tins case, the
possession of the money, qualities aud takes pos
session of the office. Judgment affirmed.
FRAUDULENT OBSERVATION-DISCLOSURES ATIoN,
e,36s. VIM. Powell VS.. Henrietta stickney.
Porter G. G.
Elliott, J.-Under our statute fraud IS a aues-
ton for the jury, and II case is not made out by
merely showing sale of goods without q charge
of possession. 1t is necessary for tue party al
leging fraud to show at least that the vender
had no other property subject to execution. &c
Ind. 900; 27 i'd, 30; Bump. Fraud. Conv., 62)
Where surety assures payment OF a debt OF the
principal, and mortgages his real estate to
cure IL, and In consideration of these acts per-
sonal property is conveyed to him by the prin-
cpal the transaction rests upon a valuable con-
sideration, and the conveyance cannot be set
aside unless II be made to appear that both
buyer and seller we're guilty OF fraud. The rule
tain where the convevauce is made upon vaiu-
able consideration. Judgment affirmed.
KEEPING DIsoRDERLY HoUsE-LicENsE.
9,977. Thornton Brubaker VS.. the state Hunt
ington O. G.
collars, i'm prosecution against a lIeers ed
liquor seller for keeping his house in dsor-
DERBY manner, 10 is necessary TO aver the exist
ence of the license In the Indictment or afli-
davit ana information. (52 Ind 4S8). The ex-
istence of such license is affirmative fact nee
essary to De proved IN way where q for
IPltuFe OF the LICENSE ia asked nnner Ia
There is no presumption to take the place of
such proof, and it cannot be expected that the
accused Will produce evidence TO establish it,
The general rule Is that every substantial FIR
native allegation in the indictment, material TO
the oifemse, must be made good by the prosecu
tiOn. wv hart. Grim. Law, sec 500: Bishop Crim
Pr. sec. l ,056, 1857: 80 Ind, So: 81 in, 246J
The court erred in instructng the Jury that the
existence of the license need not be proved
Judgment reversed.
UNDERTAKING FOR cosrs-EvIDENcE.
$3.50. John Hiett VS.. Edgar C. Davis. TIppe-
canoe c. c.
Bickneli. C.-The costs recovered by a party
are those made by him, aud for " htch he is Tia
bic go Ind, 495; SO Id, 341) This was an aetOn
appellee against appellant upon an undertaking
for costs in the case Of Foster VS.. DAVIS. IL APP
peared from the witness-bOOk and the suboRnas
issued in the case that seven of the witnesses
whose fees were part Of the sum recovered were
Fosters witnesses For their fees Davis was
not liable aud could not recover them In this
suit The damages were therefore excessive.
The objection that the complaints fails to show
lee, or that he had paid or was tabe to pay any
OF them, was well taken, 1853 Ind, 301J Judg-
ment reversed.
APPEAL BoND-DAMAGEs.
0,739. Phoebe Scott VS.. Charles F. Marohant.
Black, C.-Action by appellant on an
appeal bond executed by appellees
OISlppeal to this court. In the action in which
the appeal was taken 1t ia alleged that the plain
tiff sought to recover personal Judgment against
one Furman and the foreclosure OF mortgage,
the appellee being made descendant, because he
claimed tn own the rnOrtgaged land by purchase
from Furinan that Judgment of foreclosure
was obtained, but it Is not alleged that per
sOnal Judgment was obtained against any one
BY the bond the appellee was only bound To pros
ecute his appeal from the Judgment 80 far as it
affected him. aud to pay the Judgment and costs
rendered against him III this court. t26 Ind, |,
12.l The bond only prevented appellant from
proceeding against the land, but did not prevent
her from otherwise enforcing collection of the
Judgment. She was not entitled TO the
possession of the land pending the appeal
nor to the rents and profits thereof No money
Judgment was rendered against appellee
either in the court below or in this court BY
his appeal he simply caused delay In the en-
forcement of her judgment against his land. The
value of the land at the date 81 appeal Is not
stated, nor whether 1t deprecated during the an,
peal, and what might have been realized out of
It If the sale had not been delayed is not alleged
If the complaint showed cause ot action for
nominal damages, IL does not furnish ground for
the reversal of tile judgment. Judgment af-
frmed.
SUITS BY HEIRs-PARTrEs AS WITNESSES
1913. Adelia Harding "A. MahaIa Elzey.
Harrison e. G.
Frankiin, C.-Action by appellants to recover
possession Of certain land Both parties claim
title under one Freshman; tho appellants by vir-
tue of u deed mado to their ancestor in 1873
aud the appellee by virtue of paroi contract
made in 1861, and fully performed. The question
Ia whether the court erred In allowing the ap.
pelee to testify In her own behalf, under section
400 r. s., 1881. Her CLAIM, to the land does not
arise out of nor Is in any manner connected
xpf m "A ma la W.
tor, and does not come within tile letter or spirit
of the statute. SHE elams under a contract
with o third party. who, for aught that appears,
is still living and competent witness. She did
not testify "a To any Contract made with or do
mand against" appellants ancestor. Besides
ths, the deposition OF appellants ancestor was
read the trial, and they had the benefit of his
testimony the same as II he had been living,
Judgment affirmed.
LIBEL-RIaHTs or PREss--cRIMINAL PROCEED
URK
1O,705. The state vs. Alex. W, Do Long ct al.
Huntington @. @.