The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1885-10-07
THE RECORD OF TIE COURTS
United States District Court
Hon. w. A. Woods, Judge.
calls.
Supreme Court.
Supreme Court.
The following decisions were rendered Oct. 6:

supreme COuTCs
The following decisions were rendered Oct g.
No. 1850. Board of Commissioners of Marion
County VS.. Center Township, Marion County, ct
al. Marion S. G.. Reversed. collars, i'm
1870, under the act of 1862 Center township
voted aid to the Indiana & Illinois Central Rail
road Company, upon condition that it locate its
shops within the township. The county board in
the same year, accordingly made an appropriation,
and ordered it In the tax duplicate. In 1S71-73
the amount was collected Within year after
the levy the company commenced work. but did
not complete its road withinIthre years from the
time OF the levy. In 1873 the county board ex-
tended the time for completion one year. and
yet the road was not completed. In 1872 the
company executed trust deed to all it's prop
erty, rights, ETC., which was foreclosed in
1919, when the purchasers filed articles incor-
porating the indianapolis, Decatur 81 Springfield
Railroad Company, for the purpose of complet-
ing the road. The road in that year consolidated
with the Springfield, Decatur 81 Indianapolis
railroad, under the former name, and by 1880
completed the road, and placed its shops in said
township. In 1877 the township, the theory
that the railroad company had forfeited its rights
brought an action against the board to have the
amount OF the levy turned over to the township
fund, and it recovered judgment Because of
the county boards failure to keep subsequent
arrangement as to the payment of the amount,
this action is brought with the railroad as par
ty. The act of 1862 Sec. Is, provided that if
railroad company failed to complete its road
ready for use within three years from the levy
ing of the special tax, within the
additional year that might be given by the county
board, it should forfeit its rights to donation.
The act of 1873 provided. in cases of donations
collection of the tax should be suspended until
such railroad should be permanently located in
the township, and an amount OF money equal to
amount donated should be expended in the actu-
al construction of the road. This act is held to
repeal Section Is of the act of 1862 The finding
in the case however, shows that the tax was
0taAi in o,o1 H.. AZ
case within the operation of the act of 1873 There
fore, the failure of the companysto complete it's
road within three years did not work forfeiture.
The act of 1873 did not provide for forfeiture
by lapse OF time alone. 1t provided that if with
In three years after placing of the tax on the
duplicate the railroad company should not have
expended In construction Of the road in the
township an amount of money equal to the
amount donated. the county board might, in
their discretion, upon the application of twenty
five freeholders, and notice, make an order an
nulling the donation. No such order is shown in
this case. There was no forfeiture under the
act of 1869 or 1873. The act of 1875 amends said
section Of 1873 by fixing the canceling of dona-
tons at five instead of three years, and provid-
ing that this provision shall not apply to any
railroad where three years more have
elapsed since the tax in aid thereof shall
have been placed on the duplicate for collection"
This act, given literal Interpretation, means that
If in any case three years shall have elapsed
tax shall not be suspended and the county board
shall not annul and cancel the donation even
though the requisite amount of work may not be
done upon the railroad within the five years.
Such an Interpretation would not destroy the
donation in controversy nor the right of the rail
road company thereto, but would continue them
as they were before the passage of the act with
no means provided for forfeiture. There is
therefore, forfeiture of the companys right
to the donation under the acts of 500, 1873, or
1875.
12O8O. Samuel A. Campbell ct al. VS.. Frank
lin w. Hunt. Lake G. C. Affirmed. Niblack.
J.-u) A leasehold interest in land is a valid
subsstng interest in real property within the
meaning of Sec. 1850, r. S., and in an action
thereon the plaintiff may have a trial as
matter of right as provided by Sec. 1864. r. S.
q 1t is only where the matter in issue has
been either actually presumptively deter
mined that the judgment is a bar to another
action. So, where defendant elected to stand
by his demurrer, and on appeal the judgment is
affirmed, there is no adjudication
No. 1853 Abijah F. Henry VS.. Samuel Gill
land. Montgomery G. c. Reversed. Mitchell
G. J.-Suit on promissory note which had been
assigned before maturity The defendant ans
wered that the consideration was the purchase
price of land which was incumbered by judg-
ment lien; that the maker i'll order to protect his
title had to buy the land at sheriff's sale. Reply
that plaintiff had no notice of the defense; that
after the assignment of the note defendant
made two payments, the last being in March,
1878, when he requested plaintiff to give
more time; that The did agree to forbear
to bring suit on said note, and agreed to wait on
defendant until Aug. /, 1878, when defendant
informed him that he would not pay the note,
and that he had a good defense;" that, at the
time of the promise, there was no defense, the
lncumbrance not being removed, and that the
agreement was the sole consideration for plant
tiff's forbearance. Held: That the defendant was
not estopped to set up his defense by the prom
Use; held, also, that the agreement was mem
nudum factum; held, also, that the agreement,
being for no definite time, vague and uncertain
in every respect, it did not constitute valuable
consideration for the promise.
No. 1858. State ex rel. Robert l. Morrison,
surveyor, vs.. Joshua /. Morris, auditor Henry
9. @. Affirmed. Howk, 1.-The Henry Circuit
Court ordered that the REALTORS claim for serv-
ices in surveying a ditch be paid by the commits
sioner of drainage out of assessments on the
ditch The relator presented the order to the
auditor, and, being refused, applied for an altern-
alive writ of mandate. This refused he APP
pealed. Held: That, granting that the order was
have been paid by the auditor, yet
his remedy was complaint for re-
view or an appeal to this court
H. partner cannot recover for services rem
dered a firm of which he is member, unless
there is an agreement to that effect "a In sup
port of postponement an attorney made an
affidavit that he believed that his clients alb
sence was caused by sickness in his family
Held: That this would not warrant the court in
postponing the cause. g. Afidavits filed sub
sequent to the ruling and the trial cannot be
considered to support postponement "a. Cases
of equitable jurisdiction are not triable by jury
No. 12l0S. State ex rel. William L. John ct al
VS.. City of Richmond ct al. Wayne c. G.. Dis
missed.
No. 1900 Richmond City Water-works vs.. CITY
of Richmond Wayne c. G.. Dismissed.
No. 1862. Mary B. Joyce ct al vs. Martha j.
Hamilton ct al Rush G. G. Certiorari granted.
Superior Court
Room I-Hon. N. B. Taylor, Judge.
Yesterday -Stoughton J. Fletcher ct al VS.
William Roesner note. Judgment for $67 AZ
Campbell Printing Press Manufacturing Co.
vs. John c. Ochiltrea ct al I,,dc. nj