The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1883-05-01
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-April 2S.
Hon. William A. Woods, Chief Justice.

Supreme Court-April 2S.
Hon. William A. Woods, Chief Justice.
cHATTEL MoRTGAGE-FRAUD-DELGv
lo,os7. James B. McFadden vs. Emil Fritz.
Shelby c. C.
Franklin, C.-Under statute Of frauds a
recorded mortgage upon ite face cannot be de-
clared fraudulent and void as against creditors
Frand in such case ia a question of ract TO De
submitted to the court or jury upon the trial
Isl Ind, 459; 80 i'd, 277 70 i'd, 1926 u i'd, 1881
Inc court found that George ID. Nichols, tne
owner OF the goods, to secure debt due ms
/ Father, Joseph Nichols, who lived in Rhode
leland, executed a note to the latter and chat
Tie mortgage on a stock of goods TO secure IT.
he left the note with his attorney, and himset
put the mortgage on record. 1t appears that
Joseph Nichols never received either the note or
, mortgage, and the property was afterward sold
on execution against George ID. Nichols. Inc
court found that by reason OF the non-dellvery
of the note to Joseph Nichols no valid
note and mortgage were executed,
by said George to his father. There was no err
r0r in this conclusion. The findings inferentlally
show that Joseph Nichols never accepted the
mortgage, he being a nonresident. But II the
mortgage was accepted the findings do not show
that the mortgage contained any promise to pay
the debt independently of the note. Judgment
affirmed.
APPEAL-PRAcTIcE- HIGHWAYS.
1897. Margaret Schmidt vs.. Jesse Wright.
Marion 8. c.
Franklin, C.-The time within which to file an
appeal bond may be given at any time during
the trial term, and during that term may be ex-
tended. go Ind, 569J (2l. By Internationally
fling brief in the Supreme Court, the appellee
WAVES the right to dismissal of the appeal Tor
want of notice. 81. The fact that the notices
of the petition for opening a highway were
posted up by one of the county commissioners
did not render the action Of the board thereon
void, there being no finding that such
commissioner had any interest in the matter, or
thai he participated in the proceedings of the
board upon the petition az: Where the notice
Margaret Becker, and she afterward married,
the change in her name did not require new or
additional notice to her. Nor did the giving OF
indianapolis IL Vandalia Railroad Company"
instead Of the 'Terre Haute & Indianapolis
Railroad Company" invadate the proceedings,
the attack being collateral, by way OF injunction.
as Ind, 455; 70 i'd, 81 Judgment affirmed.
CORRECTING REcoRD-INTEREsT VOLUNTARILY
PAID.
9,613. Daniel Wilcox vs. Alfred Majors. Bar
Black, C.-The correction of bill of excep-
tions must appear to have been properly made
by the court, and where new matter is
inserted in the bill by the clerk,
without any order of the court, and
his official certificate is attached thereto. the
matter so inserted does not become part of the
bill. al Ind, 543; 40 i'd, l54: 40 i'd, 263 70
i'd, 49, Where, upon a note made in 1866, bear
ing per cent interest, the maker voluntarily
paid 10 per cent. interest while the interest law
of 1867 was in force, he cannot, in an action
brought since the enactment of the interest law
OF 1879, recoup the difference between and 10
per cent SO paid as interest go Ind, AZ; 81 i'd,
2O4J Judgment affirmed.
DONATION TO NATURALIZATION.
9,279. State, ex rel. Adams, VS.. City of Ko-
komO. Madison C. c..
Franklin, Cit is only when majority of all
the resident freeholders of a city have signed
the petition for donation in aid of a railroad
that the common council can act thereon, and in
an action against city to compel its common
council to appropriate such money the
by a majority Of ali the resident freeholders Of
the city cover twenty-one years of age, not in
Guiding infants, idiots, insane persons and mar
red women" the exceptions rendered the com
plant insufficient. Where the law requires the
consent of the landowners to be taxed for quasi
public purposes, minors, idiots, insane persons
aud married women included. Cooley on
Tax; SO Ind, 1897 Judgment affirmed.
Observation-Disclosures
1912 Frank W. Hamilton VS.. Charles F.
Reynolds. Marion G. c.
Black, C.-This was q claim filed by appellant
| against the estate of Reynolds for sum which
he had been compelled to pay as surety on the
bond of Reynolds to the government as cigar
| manufacturers Answer, discharge in bank
ruptcy. A discharge in bankruptcy does not
| release the bankrupt from his indebted
ness to the United States. 40 Wau., 251; s.
R., 339) But where the surety the bond
| of tine bankrupt has paid the money due
| the government, ne is not entitled to an action
! against the discharged bankrupt to recover the
| money paid. Il Branch, 546) The word
"fraud," as applied to a debt not dischargeable
| by bankruptcy means actual fraud involving in
| territorial wrong. (95 U. s., 704; II n. Y, 427;
| 81 Pa St., 449.) The reply AYERS that the dece-
| dent did not comply with the laws of the United
| States a cigar manufacturer, but what acts
| or omissions constituted his failure are not
| stated. In pleading frand the facts constituting
| the fraud must be set ont. (66 Ind 500; 40 i'd,
| 565.l The fact that judgment was rendered
| ON the bond does not cOnclusively show fraud on
the part of the decedent. Judgment affirmed
ACCORD AND NEUTRALITY-SUSPICIOUS.
| 9,676. Emanuel Islchholp VS.. Edward Taylor.
Tippecanoe G. c.
| Morris, C.-Where the payee of a note agrees
with the maker TO accept something else in pay
| ment, the maker must, in order to defeat suit
| on the note, show that he performed the agree
| menJ on his part. The maker may tender the
thing agreed to be accepted, aud II it be refused
| may set 1t apart for the other party and have 1t
| at his price. Or, having made the tender, and
| done all that was required of him, he may re-
| tain the property ready to be delivered at any
| time In this case the appellee did not ind0rse
| the note which appellant had agreed to accept
| and thus did not execute the accord to point
where it was to operate as a satisfaction OF his
| liability on the note sued on. Rehearing denied.