The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1884-03-31
THE COURT RECORD.
Supreme Court-March 80.

MONEY PAID BY MIsTAKE-sTATUTE OF LIAuTA"
TIONS.
1921. John b. Schultz VS. Commissioners of
Cass County. Cass c. c.
Elliott, J.-1Nhere county treasurer has overpaid
money to the county by mistake he cannot avoid the
statute of limitations the ground that the statute
did not begin to until the discovery of the mistake
He must be presumed to have had full knowledge Of
the duties Of his office and of the condition Of the
county finances. If he was ignorant he can blame
one but himself. Equity follows the law and will en-
force statutes Of Limitations except in peculiar
$50; 10 Wend.. AGO; 40 y. H., 1899 A plaintiffs
ignorance of the existence of cause of action does
not as general rule, prevent the statute from
running. ia Ind, ISL; 81 i'd, 1922 Judgment
affirmed.
REAL ESTATE - REPRESENTATIONS - EsToPPEL.
~, l1 40; Robert f. Karnes v James w. Wingate.
Howk, c. Where one represents that
two others the sole owners Of
certain land, and joins in contract for
the conveyance thereof by the owners by warranty
deed aud relying upon such Representations tho cre
itors of said parties took conveyance of the land
from them in payment of their debt such person is
real estate existing at the time Of such contract or
subsequently, acquired by him. tESig Estop 1907
Judgment affirmed.
MARRIAGE BENEFIT ISsuRANcE-NoTE
1O30l. Jesse ID. danes ct al VS.. Isaiah Jellison
Randolph G. c.
Colerick C.-Action by appellee on a note executed
by appellants which provided for the paymento 500
to appellee if he should be married TO lady named
within certain time, and should also give appellants
the exclusive right to carry marriage benefit insurance
on him ard said lady Appellee alleged performance by
him of all the conditions 1.-THE condition relating his
marriage had stood alone the promise might perhaps
have been enforced. Bishop Mar. Nom sec 1857
But this condition was coupled with the ad.
ditional one that appellants should have the
exclusive right to carry marriage benefit
insurance, etc Such insurance is a wagering contract
and is void. Il Ind. l.. Mag, 459) By the terms Of
the contract the consideration of the is en-
tire and not susceptible of apportionment. In such
cases the entire contract is rendered void. CPS Ind
%; 73 i'd, 400; Bishop Cont, sec. 471.) Judgment
reversed
OBSERVATION-DISCLOSURES BY NON USER.
- 1927 l., n. A. & G. Railway Co. VS.. Thos C.
ShankGn. Montgomery c. c.
Bicllnel, G. C.-Action by appellee for stock killed
on appellants railroad where the same not fenced
The court instructed the jury that a public highway
may be abandoned by the public in whole or in part
and thereby to be highway in whole in part
and that if at the place where the plaintiffs horses
Went upon the railway there had once been public
highway which had been abadonsd by the public for
more than thirty years, then It would stand if it
had never been highway There was error in this
instruction and 1t was applicable to the evidence
which fully sustains the verdict Judgment affirmed
RES DJUIfcATA-CoLLATERAL ATTACK.
1875, E-S rel Alba H. Braden vs. William J.
Krug Montgomery c. c.
Haianlond, J.-Aetion by appellant upon the bond
of sheriff for unlawfully selling personal property
alleged to belong to appellant the assignee for cred
itors of one Patch. Answer that appellant had
brought former suit for the cause of action
upon the bond. against one Enoeh. alleging the same
facts pleaded in the present suit; that upon issues
fendants and upon appeal the Supreme Court said
Judgment was affirmed upon the ground of insufe-
ency of the complaint in that it gave description
of the property levied upon and sold by the sheriff
did not out copy of the assignment to appellant
and did not that the WAS executed and re.
corded before the execution issued and levied.
The conclusiveness of judgment recovered in case
where the court had jurisdiction of the parties and
the subject of the action is not affected by the insult
fcency of the complaint upon which it was rendered
l33 Ind, AGO; 40 i'd, 10; So id, 434; Wells Res. Ad
LA Freeman Judg., section 2G0l To make plea Of
former adjudication good it is not essential that all
the parties in the former suit should be parties in the
Latter. 1t is sufficient to all who were parties in
both actions Il Works Pr, 605) An appeal
to the Supreme Court does not affect the binding
force of judgment until it is reversed. Q6 Ind
l01 % i'd, 342 Al i'd, 800 81 i'd, 525l The
ahrmanee of the Judgment on appeal without refer
ence to the ground upon which it is placed, leaves it
in full force. the if appeal had been taken
(46 Iowa, ZIG; 81 i'd 409) The answers show that
all the parties to the present action were parties to
the former and tie facts make good answer of res
adjudicata. Judgment affirmed.
The following cases were also decided:
1o395 Ellen Stewart VS.. Patrick McMahan Clark
G. G. Affirmed Franklin c.
1851. Jacob Robbins Ralph Magee Rush c.
c. Affirmed Franklin, c.
10022. Amelia b. Mansur VS. Rebecca Hnkson.
Marion s. G. Affirmed, BiekAe, G. c.
11226. L., n. A. e. c. Railway Company Fred
Pixley. Montgomery c. c. Bicknen G. c.. Affirmed
on the authority of No 1927, supra.
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ground coughs and colds are very frequent, and
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