The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1885-11-21
Supreme Court.
Hon. Joseph A. s. Mitchell, Chief-justice.

Hon. Joseph A.. 5. Mitchell. Chief-justice.
The following decisions were rendered Nov. 90:
1875. James Laboyteaux VS.. Jacob Swigart
ct al. Henry Circuit Court. Affirmed. Mitch
ell, G. J.-Where a debt, the amount of which is
not controverted, is due, the receipt from the
debtor OF a sum less than the whole, upon
an agreement to discharge the debt, is not q
satisfaction, and the agreement to discharge can
not be enforced. A promise to one to pay
him if he will do that which by law or by
contract he is already bound to Go, is without
consideration, and cannot be enforced. But
where a married woman conveyed property
which was incumbered, and agreed to turn over
the excess after paying off the incumbrance to a
surety, liable under a judgment taken against
her husband, as it was not her debt, and as she
was under no legal obligation to pay it, the
surety cannot evade the contract on
the ground of the want of consideration. (2(.
Where such surety rather than to take the chance
of paying more agrees if the wife will convey the
the property and turn over the excess, he would
discharge the debt for which he was surety, and
she conveys and turns over the excess on the
faith OF the agreement, the surety can not say
there was 10 consideration. (3) Where such
surety receives such excess and applies it on the
debt. but fails to pay the balance, and his CO.
surety is compelled to pay the balance, he is not
thereby exonerated from performing his con-
tract to pay the money to the person entitled to
receive it.
No. 1857. The State VS.. VIM. Fisher. White
c. G. Appeal sustained. collars, jim a
prosecution for malicious mayhem, the. defend
ant may be convicted of simple mayhem, or
assault and battery, according to the evidence.
1867. Marshall Padgett VS.. The State. Da-
viess &C. Affirmed. Howk, ID The State
is rot required to make direct and positive proof
of a felonious intent, which would characterize
an act az a public offense. All that it is required
to do is to introduce such evidence as will satisfy
the triers Of the facts beyond a reasonable doubt;
not only that the act was done by the
defendant, but that it was done
with the felonious intent charged in the indict-
ment. The evidence is not satisfactory in this
case, but under the decisions the verdict cannot
be disturbed. e. That an indictment. was not
returned by a grand jury in open court is not a
1843, r. S.
12269. Ira Carr VS.. State ex rel Cottingham.
Hamilton c. C. Affirmed. Elliott J.-Action
to enforce assessment for the construction of a
ditch. Q.) Notice by posting is sufficient, as it
is of the character prescribed by statute, e.
Where a court acts upon a notice is is not neces-
sary to make a formal entry declaring it to be
such as the law requires. g. The fail
ure to note on the petition the
day for docketing the sam is a
mere irregularity, and if not objected to within
three days after the petition is docketed the OBJ
lection is deemed waived. H. The land was
described in the petition, and the name of the
owner given: 1.-THE estate of Thomas Carr and
Clark Carr, of which Joseph Booth is executor. "
Held sufficient. (Acts 1883, p 174)
12206. Charlottesville and Southwestern Turn
pike Company VS.. Charles L. Fletcher. Mont
gomery @. c. Rehearing denied.