The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1883-06-01

/ * BIZ. Il. Il.
Bokneii. CA sheriff is liable on his bond for
failure to levy upon and sell any property when
| the same might have been done. But to make
| a good cause of action under this statute the
| complaint must show that the property might
have been levied on and that 10 was within tine
reach of the sheriff The suit must be brought
on the relation of the party interested. 10 Ind,
2O4l This means the parties TO the suit or their
554.l The third breach alleged that the sheriff.
having in his hands executions in favor of
| uivers persons against one Pavey, wr0ngfully
, levied uponand soidithe goods and chattes OF the
| plaintiffs reator. An action on sheriff's bond
may be maintained for a mere trespass, such as
lavying on the goods of A. under an execution
| against b. 90 NO. 1863; Monroe 1913: Bin
ney, l941 This breach was therefore well as
signed and the demurrer being 10 the entire par
| agraph. a part of which alleged good
cause OF action, the demurrer ought to have been
overruled. Judgment reversed.
| PRAcTIcE-AMENDING SUMMONS.
| 9.632 c. & I. Airline Railway Company VS..
James Z. Johnson. Jasper c. e.
Elliott, 1.-THE summons named the defendant
! the Chicago, indianapolis Airline Railroad Com
pany, and after Judgment on default, and at the
same term, the Judgment set aside, the ap-
pellee permitted to amend the summons by in.
| sorting the proper name of the defendant aud
| another default and Judgment were entered.
| There was no error In this The power OF the
EndouStsd SS s fpS ie All: ~ 5 sGs Ths
/ error in using the word road instead of way was
one which could be cured by amendment. Judg-
ment affirmed.
|
| $3.50. c., H. q I. Railroad Company VS.. Jared
Ford. Rush G. q.
Black. C.-when the plaintiff has intro
sp;ma Sas Isd ' on 20 prove oIas us
road at a place where the fence enclosing the
road was not secure, the burden is upon the de-
PENDANT to show sufficient reason for its failure
TO maintain a secure fence. Judgment affirmed.
DEFECTIVE BRIDGEs-LIABILITY OF COUNTIES.
| 10,548. Commissioners of Madison County VS..
James r. Brown Madison c. C.
| Morris, C.-COnceding that under the road act
| of 1881 the superintendeuce and control OF high
| ways passed from the county commissioners to
| the several township superintendents, this
| change did not take place until such superin-
| teudeuts were elected In April, 1882, and until
that time the county boards had control of all
bridges In the county and were bound TO keep
| them in repair go Ind, $50: 81 i'd, 2lOJ Any
| structure, though simple and primitive, made of
| lake or valley, is a bridge within the meaning of
| the law. The bridge in this case had been
! out of repair for six months before the
accident happened. Under such circumstances
| the commissioners will be held 10 nave had no.
| tice OF the defect. ~ Ind, 196; 6S Penn. ST.,
| IN knew tbe passage was narrow, and therefore
| not rs safe as it would have been if IN proper
repair. II was not negligence under the cIrcum-
stances for him TO attempt TO cross IL. 1872 Ind,
| LAT; lO7 Mass, 261) Judgment affirmed
wILLs-PARoL EvIDENCE-APPEALs-PR
| 1906 John G. Price VS.. Louisa Price. Porter
C. G.
| Hammond, J.-This was an action to obtain
| judicial construction of will. While parol evil
| dence is not admissible to vary contradict
WILL there are where it will be heard TO aid
| IN the construction or will. "a Ind, $40; 20
| i'd, oil; 50 i'd. 123) In this case the will itself
| does not show that such evidence wOuld not in
| any event have been proper. By excepting
| TO the courts conclusions of law 10 Ques-
ton is presented where the facts found
the record contains all the evidence no question
| can arise relating to the evidence on the
| ruling OF a motion for a new trial. Dusk. Prae.,
| 24O) Where the evidence ls not IN the record,
| the verdict of the jury or finding OF the court
is presumed to be correct. Judgment affirmed.
TURNPIKE COMPANIES FORFEITURE OF CHAR
| TER.
1O,154. State. ex rel White, VS.. The St. Paul,
| etc, Turnpike Co. Shelby g g.
| Franklin, Collaboration to have the charter
| of turnpike company declared forfeited for
| failure TO expend 10 per cent. of the stock snb-
scribed within two years. An answer, which ad-
mits certain facts averred in the complaint al
| ieges new matter in avoidance of them, and de-
MES all other allegation of the complaint not
| therein admitted, s a good pleading Garter
| VS.. Plate Glass Co, No $3.50, last terml The
amount of stock taken controls the expenditure,
and not the amount stated in the articles. Sec
3,64l of the statute applies only to the cOnstruc
| ton of new roads, and where the purpose is
| only to repair, own and operate a road already
| existing this section does not apply, and the
| charter Is Eot forfeited by failure to ex
pend 10 per cent. of the capital stock
| within two years. In this case, however, the
| amount of stock subscribed was $4,000 Ga, and
| the company did expend 81, 200 within two years
after its organization, so that in fact. the statu
| tory provision was complied with. Judgment
| affirmed.
| PLEADING-coNTRAcT OF INSANE PERSON.
| 9,949. Levina Hoke VS.. George W. Apologize,
] guardian. Harrison G. G.
| Best, C-The court erred in refusing appellant
| change of venue from the judge. A rule OF
| court rquires such application 10 he made not
ton was made on the day of the trial and was
| thus within the time limited by the rule. The
| affidavit was otherwise sufficient. The second
| paragraph Of the complaint averred that the APP
| MELEE was the duly appointed guardian OF one
| Hutser, person of uBsound mind, and that IN
| November. 1878. appellant had received from
| Hatser large sum of money go hold to his
| use" and that after the appellee appointed
Hutsler's guardian in November 1879, he de
| manded the repayment of the money, which
was refused This paragraph was
bad for failure 70 aver that
graph averred that while Hutser was person
| of unsound mind the appellant, by exercising
| an undue influence over him, obtained from him
$4,000, and that she refused TO pay the same TO
| appellee, who was thereafter appointed Huts-
| iers guardian These averments show, by i'm
pilcation. that the money was obtained before
Hutsler was adjudged person of unsound mind
| in pursuance OF some agreement. This agree
ment was not void but only vodable, might be
| affirmed or dIsaffrmed upon removal of the dis
| ability. AS Hutser was not adjudged person of
unsound mind for perhaps eighteen months after
the receipt Of the money, 1t was necessary to
| that during this time he WAS not person of
sound mind, and did not affirm such contract.
az Iud 4031 Judgment reversed.
BAsTARDY-E4cAPE OF NEUTRALITY-SUSPICIOUS.
| LIABILITY.
| 9.946. William Laklu vs.. State, ex rel. Parker.
| Hendricks G. c,
Elliott, IA defendant in hastardy
prosecution, found guilty by the justice ON
a preliminary examination, must either
| be kept in the custody of the law give bond
for his appearance in court. constable serv-
ing the warrant is charged with the custody of
| the accused during the proceedings in the
Justices court. and must look to his safe deten.
| ton. RI he goes out with the defendant and
then suffers him to escape, he ia guilty of
breach of Official duty. Nor can he or his
| eureties In q suit on his official bond. plead In
mitigation of damages that the defendant in the
| bRstardy proceeding was insOlvent Where the
officer wllfully suffers escape after the pre-
| liminary hearing. he is bound TO the extent of
the sum fixed by the Judgment on the final