The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1884-01-03
THE RECORD OF THE COURTS
Proceedings in the Supreme and State
Courts Yesterday.
Abstract of the Opinions Rendered by the
Supreme JHdges-The Local Court
Calendar.
Supreme Cou1.t-Jan. 2.
Hon. George v. Howk, Chief Justice.
CONGRATULATIONS.

CoMPLAINT-DAMAGES.
IL III. The L. N A. & c. Railway Company
VS.. Hiram link. Floyd c. c.
Howk, G. J.-Action for the value of two
| killed on appellant'sroad. The complaint stated
facts sufficient to inform appellant of the nature
of appellees cause of action and was so explicit
| that Judgment thereon would constitute a com
plete bar to another action for the same cause.
| This is sufficient in a suit originating before
justice Of the peace 100 Ind, "a; 81 id. 3S2 68
| i'd, 500 The evidence sastains the finding of
| the court as to the amount of recovery. Judg-
| ment affirmed.
Ills; L.. n. A. & c. Railway Company VS..
Hiram link. Floyd G. C.
| Howk, c. 1.-THE same questions are involved
! in this case as in the one above. Judgment
| affirmed.
| CoNPLAINT-NEXT NEUTRALITY-SUSPICIOUS..
10,8O3. James Dodd, jr., VS.. Charlotte A.
| Moore. Monroe c. G..
Elliott, IA complaint is not bad on demur-
rer because it AYERS that the plaintiff sues by next
| friend but does not show that she was an infant
when the suit was begun (46 Ind, 1877; Dood
VS.. Moore last teTn.) Where a witness is con
| tradicted by evidence of statements different
from those made upon the trial, and the contra
| diction is by way of impeachment the party by
| whom the witness was called may prove state
ments made by the witness about the time the
| Trajectory statements are alleged to have been
made, agreeing with those made by the witness
in his testimony the trial "A Blkf., 395; 6 i'd,
30S; % Ind, 1885, 50 Ind, 1851 Judgment re
versed.
RAPE-INSUFFICIENT AFFIDAVIT.
1872 Brantley Strader VS.. the State. Nor
Niblack, J-Prosecution for rape The charg-
! ing part of the affidavit was as follows: THAT
on the 4th day of May, 1888 at the county of
Morgan, State of Indiana, Brantly Strader
! did then and there, in and upon one Addie
Young, a female child under the age of twelve
years. did then and there unlawfully, feloniously
and forcibly make violent as
sault upon her, the said Addie
and feloniously did ravish and carnally know"
In charging criminal offense the same certainty
| is required in the affidavit and information that
| is necessary in an Indictment and the informa-
| ton must be qUashed if the affidavit upon which
it is based is insufficient. (S3 Ind 171.) In this
case the charging part of the affidavit has no
| conjunetive connection with, and hence is not
| qualified by that which precedes it. 1t does not
| charge that appellant ravished Addie Young or
any other specifically named person. The aft
| davit was insufficient. Judgment reversed
ACTIONS AGAINST HEIRs-coaIPLAINT.
! 1904 Adam S. Rinard ct al. VS.. VIM. West.
Henry c. C. o..s. ia. ..i, III
| Hammond, J.-This case was reported in 48
i Ind, 159. Appellee averred in bis complaint
that in 1855 he went to California where he re
1 manned until 1862 that he left his brother-in-
| law, Mendenhall in possession of farm and per-
sonal property of the value of $500, with certain
wheat in the ground, which Mendenhan was to
| harvest and account for to appellee;
that with the proceeds of the
property Mendenhall bought land worth
| $4,000: that the rental value of the farm was
| $3.50; that Mendenhall died interstate in 1860,
| leaving his widow Rachel and three children;
| that Rachel afterward married appellant Adam,
who received share of her estate when she
| died, as did also appellant Emma. The com
| plant fails to show that he had any right of
| action against Mendenhall 1t is not alleged
that there was any contract whereby the latter
! was to pay rent and the relationship of the
| parties, the failure to make any such contract,
nd f1,a OH
| any claim for rent would indicate that the oecu-
| pancy was to be free. 1t is not avelTed that the
wheat was harvested, or that there was any to
| harvest. The claim of creditor who may pro
coed against heirs is not a lien upon the proper
| ty received by them. Their liability is personal
| limited by the amount of property received by
| them Where an heir dies against whom
| such claim exists, it stands ON a foot
| ing with other claims, and must be filed
| against his estate. If appellees claim
| against Mendenhall was valid. it became claim
| against the children whom while living, he
| might have sued, Notwithstanding their infancy.
| z r. s. 1876, sec. 1861 After 4heir death his
remedy was against their estates. t37 Ind, 14l;
43 id, 172; 50 i'd, 510 The heirs of the children
cannot be sued until the appellee brings himself
within the provisions of Sec l7S, 2 R. S. 1876.
| Judgment reversed
COVENANT OF sEIzIN-BREAcH- REFRIGERATION.
7443 Frank G. Bethel VS.. John B. Bethel.
| Spencer c. C. %.
Elliott, J.-Where a complaint shows a pre-
liminary contract for deed, with full covenants
and an attempt to execute such deed, but that
the intention of the parties was defeated by the
mistake of the draughtsman in emitting the Gov
enant of warranty, it makes a good cause for
breach of covenant q Ind, &c.; IA i'd, 49,
Rowle Gov ed, 35.) The covenant of seizin
is personal one, and as to such covenant
a deed may be reformed, although the
land upon which the deed operates is
situated in another State. (63 Ind 513; 60 id,
49, rs i'd, 1884; 100 Mass, 267; Pom Eq., sec.
| 1875 Where there is an agreement to execute a
deed with full covenants and the grantor fraudu
! lently executes one without such covenants, the
grantee is entitled to damages. ~ N. Y, 235.) A
State and as to such laws representations are not
matter Of law, but of fact. z Story Ed, IL ed,
sec 49, Pom, Eq., sec. $40 The evidence is
duct on the part Of appellant, on demurrer to ap
pellees evidence. 81 Ind, 300; 81 i'd, 49, s.