The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1884-02-14
THE RECORD OF THE COURTS
Snnrene Court-Feb. 10.


Hon. Geo. V. Howk. Chief Justice
PROCEEDING SUPPLEMENTARY TO EXECUTION.
1927. Adams Earl ct al. VS.. John Skies ct al.
Huntington q. c.
collars, J.-Where Judgment debtor has property
subject to execution sufficient to satisfy the execution
against him. resort cannot be had TO the extraordinary
remedy of proceeding supplementary to execution.
| q Ind Law Mag, 1922 Hence the affidavit must
show that the debtor has property which he unjusy
refuses to apply toward the satisfaction of the udg
ment R. s., sec. 916i 80 Ind, 4O5 In this respect
the affidavit and proof in this wholly wanting
| Judgment affirmed.
| EvIDENcE-INs
11197. Frank Henry Milton P. Davis. Mont
Howl, c. J-Appellant sued for the death of his
cow, caused by drinking brine from q fish barrel neg
igenty left exposed the sidewalk by appellee. The
| evidence showed that passer-by saw some cows
around the barrel and enptied the brine out on the
ground whereupon the drank up from the ground
what brine they could get and ate the salt The court
charged the jury that they could not ind for the
plaintiff. unless the evidence showed that the COW
drank the fish brine out of the barrel and died from
the effects Of what she drank out of the barrel This
was error. The act of the passer-by in pouring the
brine into the street, was natural and probable
sequence of the negligent act of the appellee, in eav
ing the brine in exposed and unsafe place and APP
pellee liable for the loss of the if she
died from what she drank from the street 80 Ind,
| 426; Id Mass. 149; Cooley on Torts, p. 17S.)
| Judgment reversed.
ASSAULT AND BATTERY-vENIRE DE Novo.
| 1921. Sylvester johnson ct al VS.. Lydia R. Put
NAM Marion S. C.
Franklin, C-Appellee sued appellants for assault
and battery, in forcibly eiecting her from school
house in which she had been employed to teach by
persons claiming to be the legal trustees of the
school The third paragraphs of answer were INSULT
Gent but, if held good all the material allegations
contained in them admissible under the second
special paragraph, and the sustaining of the demurrer
1 to them harmless. If the jury, in their
| special verdict, fail to find upon all the
issues, motion for venire de novo will lie. But
each allegation in the complaint and is not to
form separate and distinct issue in the Some
OF them may be immateral or unimportant. The
issues in this case Did the defendants commit
an assault and battery upon the plaintiff; were they
| justifable excusable in what they did, they
guilty OF not guilty. go Ind, 1889 If the special
verdict is silent to any fact in issue that fact is
| be regarded not proved by the party upon whom
the burden of proof les If there proof of fact
not found the remedy is by motion for a new trial
| az Ind, 26 81; see &c Ind, 1861 The objections
to the special verdict not well taken. The case
cannot be reversed the ground Of excessive dam
| ages Judgment affirmed.
NoN-FoRFEITTNG INSURANCE PoL1cY-PREMIUM
NOTES.
| 1922. Franklin Insurance Company VS.. William
| Wallace, administrator. Marion S. c.
! Elliott J.-Appelant, mutual insurance company,
Aug. z, 1866 issued to Hail policy of life insur
ance, which 'non-forfeitng." The policy provided
that in case all the ten annual premiums should not
| be paid the company would pay $500 for every
| nual premium paid The complaint alleged that two
premiums had been paid, to which it answered
that the premiums paid one half in cash and the
other by note and that the note was paid Re
ply that the note received payment that had
long been the custom of the company to apply divi
|
/ and that there were dividends due Hall sufficient to
| pay the note. This reply good. Such policy
should not be declared forfeited for nonpayment of
premiums if there circumstances equitsbly
| cusing payment. The note provided that it should
remain a lien on the policy until it became due by
limitation or by the death of Hall, the dividends
the policy to be applied to the note. Courts will not
permit forfeiture where the party asking it has not
done all that equity requires of him 1t the duty
of appellant to apply. dividends to the note. (97
Pa St, 49, 80 Wis, 1919 The policy and the note
are to be read together and in constituting them the
acts of the parties to exert important influence.
! $50 Ind, $50; rs i'd, l. 81 i'd, 300.l The note
worked payment of the premium, and evidenced a
loan of money from the company, and its non-pay-
ment could not operate to revoke right fixed the
ment it was accepted (23 Minn., 491; SO o. St, 81;
| 80 U. s., 269; 40 Iowa. 1919 Hall paid premiums
in cash and notes that carried his policy until August
1868, and in April 1868, dividend of so per cent.
was declared To this dividend Hall was entitled.
| Judgment affirmed.
The following cases were also decided, abstracts of
which will appear tomorrow:
1888. Jas. S. Mcintyre VS.. Lewis Marine. Porter
| G. G. Affirmed. Hammond J.
1904. Thos. Rose Helen Rose Wayne C. c.
Affirmed. Niblack j.
1O71S. Chas. L. Henry James Carson. Mad
Il lrAaa