The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1884-06-27
THE RECORD OF THE COURTS.
Supreme Cotrrt-June 20.
Hon. Byron X. Elliot, Chief Just ice

Bicknell, c. C.-The only question in this is as
TO the proper construction of will The Will clearly
provides that his grandchildren the death OF their
parents pending the trust to take the same prop
ery devised to the of their father and no more
The plaintiff in this action is seeking to recover the
share of her uncle Enoch after the determination OF
the trust. in violation of the express language and
manifest intention of the testator. The intention
OF the testator gathered from all parts or the
will, and forming u consistent whole, devop OF all
obscurity, and violating law, must govern Petl-
ton for rehealing overTuled.
JUDGMENT-LIEN ON SEVERAL PARcELs-ALIEN-
ALTON
II407. John Merritt VS.. James W. Richey ct al.
Best, CIT is we'll ettled that when Judgment is
lien on several parcels of land which are after
ward sud to various persons at different
times, court of equity will compel the
sale Of sach land in the inverse order Of 1T its
As between the first an any subsequent purchaser
it is the duty of the latter to pay the Judgment by al
lowing the land purchased by him to be first applied
to its payment If he pays the judgment or takes an
assignment thereof to protect his land such Judgment
must, as against prior purchaser, be deemed ex-
tinguished, and no valid sale under the Judgment
can be made of the first purchaser s property Judg
ment reversed.
NEUTRALITY-SUSPICIOUS. OF PAssENG EEs BAG
GAGE.
1889. Lake Shore, etc, Railroad Company VS..
Mary Foster Ekhart c. G.
BickneI, G. CA demurrer to evidence ought to
be oHerruled when jury might have inferred from
the evidence enough to sustain verdict against the
dence in this shows that appellee, intending to
take the morning train appellants road sent her
trunk to the depot in the evening The party deliver
intended for, and told him to put it in the
baggage room, to which he replied, that
it would be all right out the platform, where it was
left and that the last of it. Prom this evil
dence jury might reasonably have inferred an accept
ance of the trunk by the bagasenan for the purpose
of transportation. If he received IT. the company
not escape liability because of certain instructions
to their baggagemsn unknown to the plaintiff requir
ing him not to check baggage without seeing the pass
engers ticket (Story Agency, Secs. f21-l33.) Judg
ment affirmed.
NEUTRALITY-SUSPICIOUS. OF WAR
RANTY.
10565. Samuel Hege VS.. Joel S. Newson. Barthol
Black CA party who desires special
Instructions to be given to the jury must de-
liver them to the court before the argument begins.
Otherwise he is not entitled to have any consideration
given to them R. S., Secs. 533-534; 80 Ind, Zz3D
The measure of damages for breach of a
is the difference between the actual value of
the article at the time OF sale, and the
value it would have had if as warranted, and the
buyer need not return tender the article in order to
sustain action for the breach of warranty or to
set it up defense counter-claim in an action
for the recovery of the price. (27 Ind, 81; % i'd
contracted for by the buyer is prma facie the value
of such article would have complied with the
warranty Judgment affirmed
COMPLAINT TO SET ASIDE DEFAULT-PLEADING
s. Il,
OILS. Montgomery G. G.
Franklin, C--AppelIant brought suit to set aside
judgment by default The complaint fails to deny the
investment of his wards money in the purchase of
lands m his own NAME and does not show any de-
Tense to that charge Such a complaint in order to
be good must specifically allege defense (49 Ind
seeks to contradict the return of the sheriff
upon the summons. This cannt be done.
The return of the sheriff is conclusive against the de-
PENDANT in the action. If the sheriff made false
turn, the defendant must look to him for indemnity if
he has been damaged thereby, and cannot have the
judgment set aside on that account. IA Ind, 300;
AS i'd, 397; SO i'd, 237, 574) Judgment affirmed
Observation-Disclosures
111O4. I. H. & I. Railroad Company VS.. Sarah E.
Buck, administrators; Montgomery c. c.
Elliott, O. Jon petition for rehearing, counsel
assume that the fever of which plaintiffs interstate
died was independent cause wholly separate from
the injury received by the fall from the trestlewor
But the evidence shows that the injury concurred in
producing the fever and the enfeebled condition which
incapactated the injured from resisting the dis
ease. 1t is not necessary in civil case to
prove the substance of the issue by di-
if there are Facts fairly warrsnting the jury in in
ferring the conclusion insisted by the plaintiff.
al Ind 476 "a i'd, 1914; Greenl. Ev. Sec. 13, A.
The appellee not required to show that the injury
the sole direct cause of the death AS Am. r.
30 80 Mich, 239.) The stopping of the train upon
dangerous trestework and implied invitation TO
the deceased to aligh ade prima facie case, and
this was not satisfactorily overcome by evidence
rebutting the implied negligence. Petition over
ruled.
ACTION ON RELATION OF THE sTATE-cosTs.
1888. Ebenezer Henderson ex rel Attorney
general. johnson c.. G.
Howk, J-On petition for rehearing When the
State institutes action for its benefit on the
aton of of its officers; the costs of such suit
properly taxable against such reater under Sec 500
K. S. But literally constituting the provisions of Sec
ton 1885, in connection with those of Section 1913,
all costs taxed against the reator in such actions
should be paid by the State, and not by the officer
personally. Petition overruled.