The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1885-11-25
THE RECORD OF TIE COURTS
United States District Court.
Hon. w. A. Woods. Judge.
To-day-Call: Taylor VS.. Rice.
Supreme Court.

snip property TO secure MS lnQlVlQOal UeOL Ap- |
pellant appointed receiver. He reported |
$l22 03 assets and $125.48 uncollected notes. |
The mortgage had filed his claim, which |
was resisted by the receiver. A compro |
mise reached, and the court made |
an entry that there $247.5 assets, and that |
the mortgage entitled to lien on one-half |
thereof, and that it be foreclosed The record |
entry was essentially an introductory order en-
tered in matter in feri. Such introductory |
orders, when within the jurisdiction of the court
are, as to all matters properly embraced within |
them. of binding authority so long they |
remain in force, but they within |
the. control of the court making them
until the proceeding or cause in which
they are made is finally disposed of. Such or
ders, when ascertaned to be erroneous, may and
ought to be amended, modified set aside either
upon direct or summary proceedings, or by the
court of its own motion 1t insisted that
there was mistake in the amount of assets, and
review Of the order was asked In such case
the correct practice is for the court to hear the
application for relief upon its merits. and in a
summary way, with leave TO any party inter
ested to reserve an exception upon any ruling
which he may regard as injurious.
l2l52. Board of Commissioners of Howard
County vs. Margaret E. Jennings Howard c.
G. Affirmed. Mitchell, il A claim before
board of commissioners need not be by formal
complaint IT, That one in distress is resi-
dent OF another county is no reason why town
ship trustee should not furnish temporary relief
(3.) The evidence is reviewed and it shows that
person were not voluntary and that they were
performed under the direction of the trustee.
1l7O3. F., G. & st. L. Railway Co. VS. Henry
Conn. Cass G. &. Reversed. Howk, il. in
an action for damages for the negligence of a
railroad company, averment in the complaint
that the defendant, with gross negligence caused
one of its locomotives to rapidly approach North
street, upon the switch. without having the
headlight lit, without giving any timely warning
from said crossing ETC., charges the defendant
AODrOach North
street. No negligence is charged in crossing
North street, and. as the injury occurred at
the crossing is does not appear that appellants
negligence was the case of the injury
a. Appellee. in attempting to cross the
railroad track, found it bockaded by a
train, and he drove his horses
across the side track, and waited between
the tracks. The night was dark and fogey max
ing it impossible to discern objects at short
distance. 1t might be presumed appellee was
negligent in driving between tracks. but the
presumption is one of fact, not law, and will not
outweigh his positive denial of negligence.
12208 Voney @. Irwin ct al VS.. John Opp
ct al Carroll G. G. Reversed. collars, j.
Contract substantially that one Kilburn agreed
for certain consideration, hereinafter named
to construct and furnish in a substantial and
workmanlike manner, and according to the plans
of the chief engineer of the l., d. & S. r. r.
Co.. and to his satisfaction, the following work
in the county of -, State of Indiana all
pile driving. foundations, all timbers needed ex-
cavations for foundations. Further, that the
work should be prosecuted with such force and
at such places as the other party might direct
Appellees signed bond suretes. Held:
That the contract was not void for uncertainty
in failing to name the county in which the work
was to be done, ind that the sureties liable
thereon.
12l5S John Lucas vs.. David A. Coulter
ct al Clinton G. G.. Affirmed. Mitchell, j.
One partner cannot be held liable on a contract
made with the other before he became a mem
Der of the firm. If, upon a sufficient consdera-
ton, he expressly or by implication adopts the
e 1 trsateo is tPs and
parties as contract, not with the partner with
whom it originally made, but as one made |
with the firm, the new partner will be liable the
same as if it had been made with the firm in the
one is while it remains executory,
of both contracting sea partes f by
firm of which the one becomes a member, the
old contract is thereby extinguished, and it be-
comes the contract of the firm upon the prir-
ciple of novation. (2) Upon the letting of the
house or storeroom. there is no implied warranty |
that it shall continue fit for the purpose for
which it was let.
1883 Frederick A. Rieh ct al. VS.. Evans
vile Foundry. Association. Vanderburg G. c. |
Affirmed. Elliott, J.-H) A book-keep or |
salesman who receives the money of his employ |
or by virtue of his employment receives it in a |
fiduciary capacity, and if he frauduenty appro
of trust The funds which come into the |
hands Of an agent for his princi
pal are - trust funds, and the |
latter, as beneficiary, becomes in equity |
the owner of the property purchased by |
the agent with these funds, and such beneficiary |
may follow the money into the property. (2) |
Where two persons unite in a common under |
standing to defraud another, the admissions of |
one are competent against both, although there |
is no direct evidence of conspiracy 81 |
Where it is sought to recover property decided to
a wife. to defraud employer parol evidence of |
the conveyance, while not the best, is sufficient |
on appeal
1874 B. o. & G. R. R. Co. vs. Michael |
Rowan. Lagrange G. c. Affirmed Howk, j.
When a complaint, in an action for personal in |
juries against railroad company shows the con- |
struction by the company of a highway bridge
over its railroad track of an insufficient height |
to enable its brakemen to perform their |
labors and discharge their duties without |
great danger and hazard to the life and |
personal safety of such brakemen, the defend |
ants knowledge Of the insufficient height. and |
that it was dangerous and unsafe for its brake
men to perform their labor while passing under
the bridge. the plaintiffs ignorance of the facts
that the bridge was too low, and that
Ills duties, and that while passing under
he bridge in the discharge of his duties
was struck injured, ETC., it shows good cause
OF action against the railroad company. A rail-
road company is and ought to be required to
construct and maintain its road way, and append
ages, and its overhead structures in such man
ner that its employees can perform their duties
with reasonable safety.
1904. Benjamin Binford Adair ct al. VS..
Marcelus NJ Adams ct al Hancock G. c.
Affirmed Elliott. J.-Where claim is paid by
third person having no existing interest in the
matter it is extinguishment of the claim
Where payment is made by one having some
interest in protecting property against the en-
forcement of a claim, or who has Junior
rights to guard. equity will surrogate him
to the rights of the person whose claim he has
paid. Whether the transaction between the par
ties amounts to payment is generally q question
of fact The purchase of note is contract
of sale, and in order to be valid must be made
by buyer to seller, must be mutual assent
and consideration. The payment of note is
not contract, it discharges the debt
1853. Squire j. Hinkle VS. Jacob Fisher
Randolph C. G. Affirmed Nihlack c. Ii