The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1883-01-30
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.
Supreme Court-Jan. 81.
ION. William A. Woods, Chief Justice.

SALE OF INTOXICATING LIQUoR-PLEADGNG
1O,623. John StOckwell VS., The State. Mon
roe {. c..
Niolack, Jan indictment which charges the
aefendant with selling liquor Ito be drank in the
PENDANT, is good. The places being thus con-
Janeuvely connected, the only effect is 60 charge
more than is necessary to make out an %ofense..
II the words were dfsjunctively connected n dit
ferent question would be- presented. Il Chitty
Grim. Law, 231; l Bishop Grim. Law, sec. $3.50
The evidence in the case tended to show that
the places where the liquor was drank were used
as drinking places with the consent of the de-
PENDANT, and justified the court in finding such
consent. udgment affirmed.
PROCEEDINGS TO EXECUTION
EVIDENCE.
9,947. zachariah d. Fowler va. John W.
Hobbs, Marion S. G.
Best, C.-Appelees, as heirs of John Hobbs
deceased, alleged q recovery by him OF
a Judgment against Erwin, and that
the administrators of Benjamin Fowler have a
note OF 81 200, ene-third Of which had been as-
signed by appellant, who was one of the heirs, to
Erwin. In support of their case appellees
showed a written assignment by appellant, then
IN the hands OF James p. Fowler, and an answer
nlef by appellant in a certain action, wherein he
alleged that he had assigned his interest in the
note TO said Erwin in consideration OF the con-
veyance 70 him by Erwin and wife of certain
land In Missouri. Held: This assignment and
answer dd not exclude appellant from proving
that the assignment was left in the hands of
james 7. Fowler to be delivered to Erwin when
he should tender IA good deed for The land, and
that III fact such deed was never rendered and
the assignment never delivered to Erwin. The
evidence showing this to have been the fact, the
evidence OF appellees failed to make out their
case. Judgment reversed.
OBSERVATION-DISCLOSURES.
9,635. Nicholas Beard VS.. jacob 8. Hand.
Harrison G. e.
Black, Can argument Of the parties 10 sub
init a cause to a master commissioner to com
plete the Issues, take the evidence and report his
conclusions OF law thereon 20 the court. is in
effect a reference under section $40 of the code
OF 1852. Ill Ind, 80; 10 Id, 1856; So i'd, 4O6)
1t Is Unnecessary in sugl n case for the rpfAfp3
to report the evidence, ana ii he does SO the
evidence cannot he considered by this court. az
Ind, 1922 Where a defendant goes to trial
without objection to a reply. he valves objection
thereto on the ground Of departure. The objec-
tion cannot be made after verdict, aHd the re-
port OF the referee stands as a verdict. (25 ind,
%; AZ i'd, 456; 46 i'd, 1877; sec. $50, code 1852;
2R. 5. 1876, 3249 Judgment affirmed.
sURErY-ExTENsIoN OF TME.
9,s49. Allen Thorp VS.. John W. Parker. Hen
Bicknell, C.-where the fact of suretyship is
not apparent on the face of the note. all the
members appearing to be principals, an answer
Gnat the sureties were released by an extension
or time to the principal will not he good with
out an averment that the holder of the note had
knowledge OF the suretyship. 1913 Ind, "a; 81
ill., S6D Judgment reversed.
CRIMINAL LAw-DEcIsIoNs OF SUPREME COURT.
1o,669. Thomas L. Fowler VS.. the State.
Henry c. G..
Elliott, 1.-The rules governing trials in
courts of superior jurisdiction In cases of felony
cannot he applied in all their strictness to trials
before justices of mlsdemsanOrs, where no severe
penalty can he inflicted, and where an appeal
secures a trial de novo, and it cannot be said in
such a case that the keeping of the jury to-
gether for three hours was not "a reasonable
tlme,' and that upon their failure to agree in
that time their discharge by the Justice
c oPsTssea Of As t E bar de to the further TSG prose prose
charged the jury that the decisions
Of the Supreme Court were not binding on them,
but they might disregard them and determine
themselves what the law is. On the authority
OF Keyser VS.. The State, No. 1O,430, this term,
this instruction must be held correct. But the
writer dissented from that decision, and gives
the following reasons for his dissent: Decisions
of the Supreme Court bind tie trial court. and
necessarily the jury. ass part of the court; the
constitution, in speaking OF law, means the rule
thus established and declared, and not the judg-
ments of individual jurors in particular cases;
1t means a rule prevailing over the entire State,
ana established by some competent authority,
which is either the Legislature or the Judiciary.
Men called into the jury box possess neither
Judicial nor legislative powers, and cannot be
the source from which the law, using the term
in the sense intended by the constitution. is OBJ
tanned.
collars, J., concurs in what is here said re-
specting tile decision in Keyser VS.. The State.
NEUTRALITY-SUSPICIOUS. coURTs-PRACrIcE.
1896. Frank McWhinney VS.. James o. Briggs.
Marion s. C..
Franklin, C.-The general term reversed the
Judgment or the special term, but the opinion re
versiug it Is not in the record, nor does the
record show what error was found by the gen
eral term in the proceedings of the special term.
nor what instructions the general term gave for
the correction of the errors found. In the alb
sence of any information By the record upan
these questions, the is that the de
cision of the general term vas right. Intperle
va. Koehler. No. 9,4SS; decided Nov. %, 1882
Judgment affirmed.
BANKRUPTCY-EFFECT OF IMPENDING SUITS.
1854. Aipheus Burke VS.. James II. Pinnel.
Boone, G.. c.
Morris, Con March 6, 1873, one Baker
obtained Judgment against appellant, an
pellee and others on a note upon which
appellee was surety and appellant was
principal. While the action in which the inGg-
ment was obtained was pending, appellant filed
a petition In bankruptcy, and ON Feb. %, 1878,
was adiudged a bankrupt. The question is
whether appellants discharge as q bankrupt
was n satisfaction of such judgment, the same
not having been flied against his estate. The
judgment in favor of Baker did not create a new
debt, hut merely continued an existing one, and
the weight of authority is that technical doctrine
If meager will not be held to cut off "a bar to the
original debt arising after the rendition of the
Judgment. FREEMAN Judgts., sec. 245; 90 Ga,
5l9; Bump Bank, 73S9 The debt was prOvable
against appellants estate, and the failure to
prove it should not operate to his prejudice.
Nor did appellant waive his right to insist upon
his discharge, because he did not enjoin Baker
in his action until his discharge in bankruptcy
could be determined. (22 Ala, $50; II 10, 339;
so N. Y, 1913; 10 Mo, 27.I Judgment reversed.
SUPERIOR Court,