The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1884-03-29
THE COURT RECORD.
Supreme COurt-March 81.
Hon. Geo. V. Howk. Chief Justice.

Ion. Geo. v. HoWk Chlet justice.
1862. The Pennsylvania Company VS. Ellen Long
Bicknell c. C.-The instruction in this case stated
that the plaintiff would be entitled to recover prov
ing that it dangerous to make the coupling com
planned Of and that the deceased directed make
it and in making it. killed by of the adap
tat on 10 each other of the two couplers This in
struction erroneous because it did not state that
the jury must also find that such facts showed neg
gence on the part of the company 1t does not follow
that because the work was dangerous the company
guilty of negligence Petition for rehearing over
ruled.
ADMINISTRATORS SALE OF LAND-FRAUD.
1876. Martha C. Riley, ct al. Geo. S. Kepler
Franklin, C.-Appellee sued as assignee of two
notes given for the price of real estate purchased at
administrators sale The answer set up certain facts
and representations made by the administrator at
the time of the sale as TO the title of the land
intended to show fraud on his part Even
if well pleaded as to the facts this answer was INSULT
cient. The administrator such, could not commit
tort in the sale of the property If he made false
representations III ths sale that was his individual tort
FOR which he could only be held individually liable
(54 Ind, 444i 81 i'd, 42 So i'd, 27S) 1t would
not constitute defense against the notes. Judg
ment affirmed
NEUTRALITY-SUSPICIOUS. DISCOVERED EvI
DENCE.
1O1O3. John Gardner ex rel. Laura Stotter
Hamilton c. c.
Best C-In a trial for bastardy it is no surprise
that the reatrix testified to acts of intercourse at
times and places different from those which the de
PENDANT was informed would be proven He is bound
to anticipate and meet all the evidence which is adms
sibe under the issues al Ind. $50; At i'd, 1927
In such cases the reatrix is examined before Justice
and upon such examination the defendant ascer-
tain from her when and under what circumstances
the child was, or may have been, begotten. In a
motion for trial for newly Undiscovered
evidence the facts constituting diligence
must be stated; so that the court can
determine whether due diligence in discovering the
evidence was used. az Ind, 1854; 4S i'd, 1863 The
aidavits of the witness must accompany the motion
unless sufficient excuse is shown for not fling them
(3S Ind, $40 10 i'd SD The refusal of the wit
o is rot a as
the court upon application will compel the witness to
make the affidavit (49 Ind, 500 Judgment af
| frmed
| RAILROADS SHIPMENTS OF STOCK DELAY
CAUSED BY RIOTS.
1869. VIM NJ. Bartlett P, c. & st. i. Railway
Company Henry c. c.
Hammond, J.-Action by appellant to recover for
the failure of appellant to ship lot of hogs to East
Liberty, Pa, within reasonable time. A party has
to complain of the overrung of his demurrer
to pleading where it appears that the pleading was
found upon the trial, not to be true. q Ind, L. NJ.
25S) Where the complaint against common
carrier merely alleges a breach of the common
law duty of such carrier, and the evidence shows
that the goods received under a special
written contract, which was not declared upon the
variance is fatal and the plaintiff recover. 13
Ind, SIS; so i'd. 339; 80 i'd, 457.) Appellee's
agents received the hogs under order from the SUI
perintendent that they might then receive stock and
perlsha6e goods for shipment, and appellant then
knew Of the riots at Pittsburg, but not of their
tent, and with this knowledge executed a contract
whereby he assumed certain risks among them DELAYS
of transportation. Taking the order and contract
gether in the light of surrounding circumstances
their obvious meaning that the appellee accepted
the hogs for shipment appellant assuming the risks
referred to- A common carrier may, by express con
tract, relieve itself from its common law liabilities,
except to consequences of its own negligence 90
Ind, u; 81 i'd, $50; 40 i'd, 1922 The facts pleaded
in the eighth thirteenth and fourteenth paragraphs of
answer show that the hogs delayed at Columbus
o., for twelve days by reason of extensive
and destructive riots at Pittsburg and Columbus
which were beyond the power of the civil and military
authorities to CONTROL and that was prac-
tcable to do the stock reshipped to its destna
nation. These facts negative negligence on the part
Of appellee, and the answers were good. Judgment
affirmed
ESTATES FINALLY OBSERVATION-DISCLOSURES CON
VEYANCE.
1926 James Vestal vs. Martin Allen ct al. Put
nam G. c.
Colerick, CA creditor of deceased debtor may
executed by the debtor so that the property so
conveyed may become assets for the payment of the
decedents debts but the administrator of the estate is
a necessary party to such action q Ind. L. NJ.
205; Ind, 1873: II i'd, SOL; 2 VIII. Exrs Il05
But where the estate has been finally settled and
than three years have elapsed within which i;
could be reopencd it is too late to main such an
action. The creditor must proceed with his action be-
fore final settlement of the estate is made Judg-
ment affirmed
NOTE EXECUTED ON sUNDAYs-RIGHT OF JURIEs.
1896. VIM. II. Conrad VS. Sarah Kinzie Cass
c. c.
Bcknell G. CA note signed and delivered by
surety to the principal Sunday and afterwards by
the latter delivered to the payee u secular day