The Indianapolis journal., 1883-10-31

holder. 1t was averred that in a suit on the
note against the maker he defeated the action
on a plea of infancy. The complaint was bad
for failure to aver that the maker was In :act an
infant when he made the note, and that appellee
was party to or had notice of the action. J n
an action against the assignor OF a note by de-
livery without Endorsement the right to recover,
on the ground of the invadity of the note, must
oe based upon the consideration palu Tor the as
sigument Ii was not averred what consldera-
ton was paid by appellant for the assignment
of the note Il Dan. Neg. Inst, sec. 1909 JudS-
ment affirmed.
NEUTRALITY-SUSPICIOUS. OF OPINIONS.
9,814. Henry Dillman VS.. Patrick II. Crooks
ct al. Cass q. G.
Franklin, C-Proceeding for the location OF a
highway, the appellants demonstrating on the
ground that the road would not be of puhle
utility. On the trial Witnesses were asked
whether the road was one of public utility, ana
answered that it was Some of them were
asked to give their opinion upon the utility OF
the road upon the facts in their knowledge or
TESTIFY to others without reference to Other rea-
sons. such testimony Is not admissible, ana It's
admission is sufficient error TO reverse the Juig-
menU (Rosebaugu vs. BirdseI No. l0,0S9, this
term, aud No. 1891 below.) Judgment re-
versed
GRAVEL NEUTRALITY-SUSPICIOUS.
1O,O35 Austin c. Dewey ct al. State ex
rel. McColum. Marion e. c.
Howk, J,-Suit by appellee against appellants
and others, bOndsmeu, for the value of work done
aud gravel furnished lu the construction of
gravel road, under contract with the county
commissioners. The board had authority to
make the contract 1t was clothed by the
statute with original jurisdiction, and required
TO exercise powers and duties Judicial i'll their
nature over the construction of such free gravel
road. (Million vs. Carroll Co., 80 Ind) The canse
OF demurrer that the plalntiH mas not regal ca
pacity 70 sue" has reference only to some legal
disability of the plaintiff such as infancy ldiocy
or coverture, ana not TO the fact that the com
plaint fails to show right of action In the plain
TIFF (31 Ind, 800; 81 i'd, 57O) The complaint
does not show that the plalnln was under any
legal disability. Appellant Mueller answered
setting up modification of the contract by the
commissioners without his knowledge,
whereby his liability was increased by lncreds-
ing the cost of gravel TO contractors.
Held: The bond WAS a statutory one and was
eXecutedfor TWO purposes, ~ the falthtul per
formance OF the work by the contractors ana CZl
the prompt payment by the contractors OF all
debts incurred by them for labor, Materials, ETC.
(Sec. 4,246, r. S. With the accomplishment OF
the second of these purposes, after the taxing OF
the BOND, the board mad nothlng 10 40, II the
contractors failed TO pay any such debts the
right of action therefor against them ana their
hOndslnen was IN the laborer or materla!-man,
j. anu anu onis & ant vi % aicC p
missioners. Judgment affirmed.
PERSONAL JuDGMENT-Di1ATH OF Jup1NhNI
DLbIoh'
GIL, Edgar T. Jones VS.. Stow S. DetchOn.
Montgomery c. c.
collars, J.-Jones received judgment against
Ray on March g, l 86S: in November, / S67, Ray
went to Chicago and has never been heard of
since This action was brought to have the
judgment against Ray declared a lien upon the
land owned by him at his death. The ten years
during which the Judgment renamed a lien
upon the land of Ray expired on March IS, 1S7S
unless the Judgment plaintiff was restrained
from proceeding on the Judgment by the death
of Ray. (45 Ind, 329) How long was he so
restrained? For the purpose of preserving his
estate and paying his debts the law presumed
the death OF Ray, after November, 1872, ana at
that time an administrator might have been ap-
pointed to settle his estate. (66 ind, 377) The
word restrained, AS used in section 527, code of
1852 does not mean "A voluntary delay, but a
legal delay. After the expiration of thirty days
from the death of Ray (that is after November,
1922 Jones might have taken out letters of ad-
ministratlOn himself no one else having done
so, and proceeded to collect his Judgment, aud
not bound to wait until 1879, when one of
the appelees was appointed such administrators.
He was therefore restrained from proceeding on
his judgment no longer than sdch time as he
might have procured administration on Rays
estate and one year thereafter When this
tion was commenced more than ten years had
elapsed since the rendition OF the judgment, ex
elusive of the time the appellants were re-
strained from proceeding thereon and the action
was not in time. Judgment affirmed.
DITCu-rTT1r1Ty-wr WITNESS 8 OPINION
-"'9 ~
999L. Adam 1oSt vs. Martin Conroy. Cass
Elliott. Ut is competent to prove the value
of land before ditch Is constructed and what
Id, 238; 33 i'd, G2; % i'd, 2dl) Against the
competency OF such evidence are 80 ina, 4I9,
ana % Id 247. Where there Is no law exclud-
ing pehents from consideration In estimating
damages, or where the question is one affecting
the right to assess benefits, witness may state
his opinion or the value or the land without the
proposed ditch or highway, ana what its value
would be with the highway or drain. Elsewhere
than in this State there seems to be little dl-
versty of opinion on this subject. (Mills En-.
Dom, sec. 100; Pierce on Railroads, 225 227; L
Wharf. Ev., 447 Rogers Expert Test 21l,
213) In this case witnesses were allowed
to state their opinions as TO the public utility of
the proposed ditch, This was error. (S3 Ind,
566 Rosebaugh VS. Burdsal, November term,
1892 1t is a general rule that witnesses can
not be allowed TO express an opinion upon the
exact question which the jury Is required to de-
eide. Il Greenl. Ev., sec. 44O: Rog. Ex. Test
a public ditch or highway is very differ
enJ from concerning matters of public
health witness fully describe
the locality of the ditch or highway; can state
what roads connect with the highway or what
what lands will be drained by the ditch, and 9th