The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1884-01-28
THE RECORD OF THE COURTS
Supreme COurt-Jan. rs.
Hon. Geo. V. Howk, Chief Justice.
mn ,UYor- ,,,-Y,,1-Drc1, OF, DAx,tt,n-r

motion for a new trial do not become part of the
record unless incorporated in the bill OF eXeep-
TONS t66 Ind, 10; IS i'd, ZIG; SO i'd, 49, An
unqualified admission by the holder of a mort
gage executed by a deceased person that the
debt was settled" by the decedent previous to
his death, is evidence tending to show payment
and is properly admitted in support Of plea of
payment. Judgment affirmed.
l0999. John Shultes VS.. Cyrus H. Keiser ct
al Whitley G. c..
Best, C.--Appeal from an order removing ap-
pelant as administrator of estate. The APP
peal must be dismissed under rule IA. because
appellant did not file brief written within sixty
days after the submission of the cause, and the
appellee has not filed a written request that the
cause be passed upon by the court. (51 Ind,
542; 70 i'd, 287 So i'd, 266) Appeal dismissed.
DEPUTY PROSECUTING ATTORNEYS - SALE OF
LIqUoR-EvIDENCE.
uo 1l 2 Daniel A. Stout vs.. The State. Mon
Howk G. J-Secton $685. R. S, authorizes
prosecuting attorneys to appoint deputies, and
section 5369 provides that the deputy may per
form all the official duties of his principal The
deputy is therefore, authorized to sign indict-
ments in the name Of his principal. When the
record shows that the grand jury returned the
Indictment into open court, and the Indictment
itself states that the grand jury were duly i'm
paneled, sworn and charged the impaneling of
the grand jury is sufficiently shown Isl Ind,
IA This was prosecution for selling liquor,
to be drunk on the premises, without license.
The evidence showed that appellant sold Ward
hottie of beer and furnished glasses for him and
his companions to drink the beer, and when they
had drunk it few feet from the back door OF the
saloon they brought the bottle and glasses back
into the saloon. This evidence was sufficient to
sustain the finding that the liquor was drunk on
the premises (S5 Ind, 522. Judgment af
frmed.
MALICIOUS OBSERVATION-DISCLOSURES CAUSE
DAMAGES
1864. VIM. c. Lytton VS.. John W. Bair. Mon
roe G. G.
Colerick, Constructions must all be con-
Strued together, and if when so construed. they
express the law correctly they will be upheld,
although one of them considered alone and I'M
aided by the rest, might be erroneous. (73 Ind,
4G; so i'd, 242. In actions for malicious prose-
cution the question of probable cause is one of
law, where there is no conflict in the evidence
nor disputed facts, nor any doubt the evi
dence or the differences to be drawn from it, But
If there is conflicting evidence to be weighed, or
the credibility of witnesses is to be passed on,
the question of probable cause is one of mixed
law and fact and must go to the jury. a Waits
A and D., 344 For the general rule as to as
sessing damages IN such cases, see "a Ind, 504
A i'd, 238; IL i'd, 22S. Judgment affirmed
wILL-REvoeATIoE-D EsTArEs-As-
SETS.
1O769 Thos Clayton vs. Rachel A. Bought.
Bicknell C. CA testator at the date of his
will owned land in Elkhart county which he de-
vised. Afterwards he exchanged this land for
land in kosciusko county. of which he died
seized. Held this exchange worked a revoca-
ton of the will and the Kosciusko lands were
not affected by the will Is Ind, no. A suit
for partition has no connection with the rights
of an administrator to make assets, and he can
not come into such a suit and file a cross-con
plant for the purpose of making assets. The
mode prescribed by statute for selling the lands
of decent to make assets is the only one the
administrator can pursue Affirmed, with in
structions to modify the judgment so as to make
it conform to the findings of the court.
HETEROGENEOUS FILED WITH PLEADINGs
PRACTICE.
1904. John E. Gates vs.. Henry G. Thayer
Fulton G.. c..
Elliott Error is assigned that the court re-
fused to compel appellee to answer interrogato-
ries propounded to him by appellant. Such a
question must be reserved by exception duly
taken at the time the ruling is made and the as
Segment in this court should be founded on the
ruling. (56 Ind, 1874 Such interrogatores
constitute part of the proceedings rather than
the trial. & Ind, $40; 8 id, 458; Pom. Ed,
sec. 1911 Mr.. Works structures on the case of
Reed vs.. Spaydo, 56 Ind, 1914 Il Works Prac,
sec. SS2), are entirely groundless. A surety is
released where payment of the note is extended
upona valuable consideration, for definite period,
but he is not released where the extension is for
an indefinite period. 10 Ind, 249.) Judgment
affirmed
NEUTRALITY-SUSPICIOUS..
10000 John p. Carr VS.. Richard kolb. White
&C
Bicznell, G. CA highway was opened in
1851, and was used ever after by the public as
highway forty feet wide, until in 1882, when APP
pellant ascertained, as he supposed, that the
center line of said highway was not the true
halfmile line of the section, and built fence
where he supposed he had "a right to put it,
eight feet nearer the center of the road than
the old fence, Appellant owned the land abut-
ting on the highway for nineteen years, and
A11pIn 1l hot tfT1na do 1o,,
against the public use of the
highway opened, but the same was used
worked and improved by the public, without any
objection from the appellant and with his knowl-
edge. This evidence was sufficient to sustain a
finding that there was an intention on the part
of appellant to dedicate the ground for high
way (36 Ind, $50; % i'd, 352; Sc i'd, 50; rs i'd.
95. Judgment affirmed.
JUDGMENT AGAINST INSANE PERsoN-vALIDITY
1O983 David Woods vs.. Hugh NJ Brown
Vigo G. C.
Hammond, IA complaint to set aside
Judgment for eXcusable neglect, etc, under sec
ton 1881 of the Revised Statutes, must show
that the complainant has valid and meIitorous
defense to the cause of action upon which the
judgment was rendered $50 Ind, 305: Sc i'd,
53l) The mere fact that the defendant was a
person of unsound mind at the time when iudg-
ment was rendered against him is no cause for
its vacation. Such persons are responsible in
civil actions for their torts, except SANDER IA
Am. Dec. 349 AZ Am. r., 423; Waites A and d.,
Isl They are also liable fornecessares, and where
they not under guardianship their just con
tracts may not be repudiated without restoring
what was received, if the other contracting party
was ignorant of their mental ineapacity. Isl
Ind, 433; SO i'd, is; % Iowa. ;133; 2 Am r., 202,
is id, ZIG; 81 id, 81 80 id, 1861 The collection
of Judgment will not be enjoined for want of
jurisdiction where there is no claim of payment
OF the Judgment or denial of the cause of action
upon which it was rendered (SS Ind, 303;
High on InJunc., secs. 125, 1876 Judgment re
versed.
FoRECLosURE-INsANE MARRIED WOMAN.
1887. Absalom Epstein VS.. Lou Ann Greer
Dearborn G.. G.
Black, C.-Where Judgment of foreclosure
was rendered against husband and wife on Feb
13, 1879, and the mortgaged property was sold
Hereunder to one not party to the action, and
aftarMard the wife WAS adiudged to be