The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1884-04-07
SUPREME COURT-APRIL 4.

ment affirmed.
SUPREME COURT-APRIL 4.
oMPLAINT-MATURITY OF DEMAND.
10539. Casper Hairless VS.. John Cole. Warren
@. c.
Howk, @. IA complaint which alleges that the
and delivered and services rendered. and loves him
certain sum of money for money lent the defendant,
due and unpaid (58 Ind, 81; 70 id, 40; 50 i'd,
576) Judgment affirmed.
EJECTMENT-NEw TRIAL AS OF RIGHT-INNo-
CENT PURCHASER.
10637. Thomas Smith ct al vs. Richard Cottren.
Bicknel, G. C-section 1866 R. s. provides in
reference to new trials of right in actions of eject
ment, that the result of the new trial,
if application therefor be made after
the close of the term at which judgment
is rendered, shall in no case affect
the interest of third persons acquired in good faith
for valuable consideration since the former trial"
The purchase which is MOTTO be affected is not merely
one for value it must also be purchase in good faith
and one who purchases the property knowing of the
former trial is not purchaser in good faith within
The meaning of the statute; q Atk., GAG; Vesey,
"a; 3 Sug Vend 459; White and T. Eq. Ca,
126; z Pet, 1877 Story's Eq Jur., 1888, 397. Judg-
ment reversed.
PRAcTIcE-sPEC1AL FINDNG-BILL OF EX-
CEPTIoNs,
1928. Robert A. Knox VS.. Daniel Lafelet.
Franklin, C.-Under section 551 r. S., when case
is tried by the court special finding is similar TO
special verdict when the is tried by jury. Upon
the return of special verdict either party may object
thereto and move to have it made specific TO
require the jury to state further the facts of any issue
omitted The same practice applies to
special findings by the court (66 Ind,
1903 Where leave to file bills of exceptions
is granted at the term of the trial and the bills are
fled within the time granted, though after the
close of the term they sufficient to bring into the
record the various rulings made at the trial. The
findings in this sufficiently specific and the
conclusions of law were correct Judgment affirmed.
HUSBAND AND MISUNDERSTANDING PER
FoRMANCE
1885. George Hills Elinira Hills. DeKalb
Black, C.-Appellant had purchased real estate by
written contract paid part of the purchase money,
and made valuable improvements the land He
had made second payment with money furnished by
his wife and having left the balance remain unpaid
for nearly four years after it became due, the wife
paid it and took deed to herself. Soon afterward
she commenced a suit for divorce and alimony. APP
pellant filed general denial in the case and
appellee was granted divorce without
to matters of property between them. This action
was by appellant for specific performance Of convey
divorce she entitled to a Judgment for alimony
but she cannot maintain separate action for alineny,
and appellee stood by during the divorce trial,
knowing her claim in regard this property and that
she had the legal title to it. and made adverse claim
while she changed her situation TO forever pre-
clude her from any claim upon him for alimony, it
would be inequitable and unconsconable to permit
him to take this property from her decree for spe
cfc performance should be strictly equitable. Judg
ment affirmed.
GUARDIANS BOND-PLEADING-BOAR AND TUT
TIoN OF WARD.
1912 Elk. rel. Durham VS.. Thos. Roach admin
istrator, ct al. Huntington c. G.
COlerick C.-Action a guardians bond. The
special paragraphs of an answer purported to answer
the entire complaint, embracing all the breaches
signed as causes of action when in fact they not
answers to the seventh breach. Such an answer is
bad on demurrer. 90 Ind, IL; 2 Ind L. Mag, 1861
1t is error to cverrue demurrer to a special para
graph of answer if the facts not sufficient to bar
the action, though proof of the facts might be ads
sable under the general issue. 46 Ind, 116 81 i'd.
350.) In an action on a guardians bond an answer
that the guardian provided board and tuition for his
ward, for which he became personally liable, and
which he paid and asking credit therefor is bad if it
living when such expenses were incurred q Ind l..
Mag, 26) Judgment reversed.
LOTTERY STRENGTHENING THE NUMBER OF
BEANS IN A GLoBE-INsTRUCTIoNs
1869. John c. Huddleson ct al VS.. The State.
collars J.-Indictment for maintaining a lottery
scheme by giving tickets with goods sold emitting
the holder to one guess at the number of beans i'm
globe the person guessing nearest the number to have
chance 1t would be impossible to compute with
mathematical certainty the number of beans in
globe 1t would be mere chance if the exact mum
Der were guessed lottery is scheme for the dis
H, 329 It makes difference that the ticket was
to be procured by the purchase of goods. Isl Ind
u; 70 Mo, 647D The indetment sufficient
The tenth instruction given the jury as follows
You have right TO determine the question whether
the facts stated in the Indictment constituted public
ofense to determine the suficency of the indict
ment If the facts stated in the indictment proven
beyond reasonable doubt you must convict" This
instruction invasion of the jurys right
to determine the law and the facts They have the
right to say that the facts in evidence do not
constitute public oense, although the Facts may be
the same facts stated in the Indictment. % Ind
Sal; 10 i'd, SOB; AZ i'd, 420) In the following in
sructon the court charged that they the judges
of the law and the evidence This instruction did
cure the other Taking the two together the jury
would understand that to all questions Of law arts
ing in the case they the judges except that if
the facts stated in the indictment proven they
must convict, whatever their ideas of the law upon
such facts might be. Judgment reversed.
Elliott, j.. dissenting thinks the instruction re-
fers to the pleading, and if So was proper The
court has the right to tell the jury that il all the facts
stated in an indictment proved it is their duty to
convct but such statement like all other matters of
law must be left to the ultimate decision of the jury.
Such statement is direction to the jury, just
any other instruction is and it is which the jury
may take as merely advisory. Hammond j., con
ours with Elliot j.
NEUTRALITY-SUSPICIOUS. OF TEsTAToR.
1O629. Anna Cooper VS. Mary A. Hayes. Dear
born, 9, @.
Bicknell, @. C.-The testators will states that he
aims make his three sons equal in the distribution