The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1884-03-08
THE RECORD OF TIE COURTS
Supreme. COurt--March 6.
Hon. Geo. V. Howk. Chief Justice.
FAILING DEBToR-CoA1BINATIoN TO DEFRAUD
CREDITORS.


FAILING Observation-Disclosures TO DEFRAUD
CREDITORS.
lilo, Alfred Wright vs.. Eva Mack ct al. Elk
HowS, c. J.-If the assignee of failing debtor
wrongfully refuses to enforce of action in ia
of the creditors if he colludes with the debtor
and permits the estate to be wasted sacrificed the
creditors OF the assgnor may sue N their own names
to recover the trust estate. STORY Ed Pl 5l6,
17S, 227, 5l5D And the creditors may properly
unite as plaintiffs in one suit g Ind 461 10 id.
2OS.l ri A failing debtor may lawfully execute
preference mortgages to of his creditors, but
where he executed such mortgages to his sister his
uncle and his attorney, and shortly afterwards made
an assignment and upon foreclosure of the mortgages
the property sold in bulk for onesixth of its APP
praised value although the creditors demanded its sale
IN parcels to one OF the mortgages and the assignee
refused to take any action in behalf of the creditors
although offered to be Unidentified by them
as to all costs, the facts make a
prima facie of collision between the
assignee the debtor and the mortgages TO defraud
the other creditors of the assignor and entite the
creditors to maintain action for the conversion of
the property. Part of the personal property not
present to the view of the bidders at the sale and this
of itself rendered the sale void. ~ Ind l29; Ii i'd
33S.) Judgment reversed
PETITION FOR MISUNDERSTANDING.
1910. David Shafer Jacob Shafer Madison
c. c.
Franklin, C.-In his petition for rehearng appel
liant raises question not presented originally 1t has
been repeatedly decided that questions not referred
in the original hearing to be treated waived and
will not be considered petition for rehearng. Pc
tition overruled.
CONSPIRACY TO NEUTRALITY-SUSPICIOUS.
TIoN.
1O745., Thos. J, Breedlove ct al VS.. John P
Bundy. Marion s. c.
Franklin, C.-Appellees complaint charged a con.
spiracy between appellants to defraud him
out of stock of goods that Breedlove
and Mcclellan proposed to sell his stock to Gassett
representing that Gassett held notes executed by
Gauze and secured by first mortgage valuable real
estatei that afterwards Gassett and Gauze made sim
liar representations; that Breedlove Mason,
60 49,, Ln t,a1
dence in him, etc. that relying upon the false and
fraudulent representations made by the parties he
cepted the notes III payment Tor hs goods and that
the notes turned out to be worthless. The facts a.
legged sufficiently show that fraud committed
upon appellee and it is alleged that Breedlove and
Mcclellan engaged in the conspiracy, they must
be held responsible for the acts and declarations of
the other consprators, done and made in pursuance
of the conspiracy. (43 Ind co. Where one has
been declared insane by justices of the peace and
suitable person to be treated in the insane hospital
after the lapse of nine years, there being no
that he has been cured and has become
sane again The is not like where the luna
tic has been adjudged insane by an inqusition and
placed under guardianship in which the presump
tion of insanity continues until he has been regularly
adiudged and discharged from his guardianship
Judgment affirmed.
OBSERVATION-DISCLOSURES EvI-
DENCE.
1864. VIM H. Hines ct al, VS., James T. Driver
Hamilton, c. G.
Hammond. J.-Where service by summons is set
aSlue ana the case cOntlnueU, aIUerNaIS, at
term, the plaintiff procures order for publ
cation of notice to the defendant nonresident
without having the order of continuance set aside
the rregularity is not such will render the notice
insufficient. % Ind, 1901 The notice was dated
contained the names of all the parties and the court
in which the action pending and notified the de-
PENDANT to appear at the next term of court the
third Monday of November, 1882. This sufficient
e Ind, 113.) The suit note maze by Hines
for an interest in partnership, of which he was to
assume and pay onethrd of the debts The defense
that the debts largely exceeded the amount rep
resented to him. Appellee obtained a trial for
newly discovered evidence which consisted of adnis
sons made by Hines to his knowledge of the part
nership debts at the time of the purchase. number
of witnesses testified to such admissions the first
trial The evidence therefore cumulative only
and for such evidence trial will not be granted
Il Works Prac., 922; II Ind, GO9; 13 id, Ia;
80 i'd $40; II i'd, 1922 Neither sufficient dill
gence shown. Judgment reversed.
JOINT OBSERVATION-DISCLOSURES OF ONE oBLIGoR.
$500. James S. Greenhouse VS.. Barbara Cline.
Spencer c. c.
Franklin C-The common law rule that all joint OBJ
ligors' estates are released from the payment of
such obligations has been changed b. statute
in this State (R. S., section 2312.) This statute
also creates exception to the rule that Judgment
against several joint oblgors merges the obligation
and releases the others by making the obligation after
the death OF oblgor several well JOINT. As
long all the obgors live the contract is joint hut
when dies it becomes several and either the rep
resentatives of the deceased their survivors, may
be sued separately without merger of the contract
(64 Ind. 243; 20 i'd, 80; 80 i'd. 206.) 1t follows
that after allowance upon the note against the
tate OF the principal joint maker suit be main
tanned the note against the other makers. Judg-
ment affirmed.