The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1885-04-24
The COURT RECORD.
Supreme Court-April 23, 1885.
POINTS OF DECISIONS

Supreme Court-April .3, 1885.
POINTS OF DECISIONS.
No. 1891. William Dunkle ct al. vs. Mary
Nichols. Montgomery c. c. Affirmed. Elliott,
reference to the note was ''that said note is in
exhibit "A which is filed herewith and made
part thereof" Held sufficient. (2.3 1t is not
necessary to aver and prove demand for pay
ment of note, Designating the time of payment
in these words, "On or before Dec. %, 1884,
after date promise to pay etc.
No. I2028. VIM. V. Mckinney ct al. VS.. State
ex rel. Francis nj. Nixon. Clinton c. G. Reversed.
Best GU In anaction on damage assess
ment by damage commissioners, it is unneces-
sary to aver in the complaint that copy of the
petition and order of reference was delivered to
the clerk. T. In such case, if no evidence is
offered in support of the allegation in the COM
plant Of the assessment and demurrer to the
to plead over, this failure of proof defeats the
plaintiffs right to the amount awarded and the
defendant is entitled 20 new trial on the
grounds of excessive damages.
No. 1922. Lycurgus Duncan VS.. Board Of
Commissioners of Lawrence county Lawrence
c. G. Reversed (l) A contract by board Of
commissioners employing person to examine
and report the condition of the accounts of the
treasurer is not ultra wires and void q If a
complaint can be held subject to demurrer or to
a motion to make more specific it is error to dis
miss the action.
No. 1880. Aurelius B. Hull VS.. Clark South,
Tippecanoe S. G. Reversed. Colerick, Cone
whose unsoundness of mind had Eot been judi-
cially determined conveyed some land to her son
in consideration that he would support her dur
ing life and he executed mortgage the land
to a third party. who had no notice Of the grant
or's infrmity, to secure the payment of some bor-
rowed money. Held: In suit by her to have
the mortgage Cancelled, that as no fraud was
shown in the conveyance and as the parties could
not be placed in status quo the mortgage would
be upheld as valid.
No. 1895. James Carter vs.. Samuel Carter ct
al; Tppecanoe. Affirmed Mitchell, Jap
pellant agreed to exchange hogs with appelees
within certain time at one of two places Be
ing notified of plaintiffs readiness to deliver he
refused to receive them. In an action on the
contract the proof failed to show delivery or
offer of delivery. Held, however, as the com
plant setting up the above facts showed an ex-
cuse for not delivering there was no fatal
variance between the complaint and proof.
t. Ii counsefs agreement does not amount to
misconduct, and does no harm, there is no cause
for reversal
No. 1867. L., N. A, & c. Railway Company
VS.. Peter Fox ct al Carroll G. G. Affirmed.
Best Gu Questions affecting the jurisdiction
of the trial court should be addressed to it in
explicit terms and rot presented for the first
time in the Supreme Court. a. When the
court had jurisdiction of the cause of action
stated in one paragraph of complaint motion in
arrest Of judgment will not lie.
No 12005. Moses G. McLain VS.. VIM. Wal
lace, receiver: Marion S. G. Affirmed Bick
nell. C. C.-Where a county clerk deposits in o
bank money as s. clerk" and the bank be-
comes insolvent; he does not thereby become a
special depostor, in the absence of special
agreement, and cannot claim any rights other
than as general deposition
No llSOS. Mordecai L: Peck VS.. L., y. A. &
c. Railway Company Tippecanoe G. C. AT
firmed Bicknell, C.-Q) Where in ejectment
against railroad company, the evidence shows
that the land occupied is necessary for it's i'm
prcvements, it sustains verdict against the
plaintiff, the railroad company being organized
under a statute which empowered it to enter on
what land it actually requires for its improve
ments. a. When bill of exceptions states
that certain testimony was offered it does not
make it part Of the record
No. 1871 Hiram r. Mitchell VS. Louisa
Colglazier ct al Reversed. Black Can an
swer, in suit to set aside fraudulent convey
ance by husband to his wife, by the wife
alleging that she appointed her husband agent
to purchase the land in controversy with her
separate MEANS that he did purchase it; that
she furnished the money from her separate
means to make the first payment; that the hus-
band executed his notes for the remaining pur-
chase money; that he took the title without her
knowledge or consent in his name; that she fur
nished her separate money to pay the notes,
ETC.. does not show q resulting trust in her favor
SO as to defeat the husbands creditors.
No. 10438 AMI l.. Wheeler vs.. John p.
Hawkins; Marshal c. G. Reversed. Howk J.
MORTGAGE of his assignor the first installment
due on the mortgage, with the understanding
that IL the court would not authorize such pay
ment the mortgage was to return it, a complaint
by the assignee in suit to recover it, alleging
'that his action had not been confirmed and
he believed it would finally be disapproved by the
court" does not show an existing cause of ac-
ton. T.. Such agreement is without sufficient
legal consideration and is q mere midum pactum
49, A copy of the deed of assignment not ac-
companyine the complaint it is bad.
No. 1928. Sarah Mayhem Jane Burns
Allen S. Z. Petition for rehearing
No. 1858. Stephen Burk VS.. Barney Simon
son. Dearborn 9. c. Rehearing granted.
PETITIONS FOR REHEARING ovERRULED. /,
No. I09S4. VIM. f. Mclean vs. Equitable
Life Insurance Company. Vigo C. C.
No. 1897. VIM. Marks VS.. State ex rel Tip
pecanoe G. c.
No l1748. Henry DIPPED ex rel VS.. Geo. j.
Schicketanz. Marion S. c.
No. I1044. Lawrence F. Clark vs. VIM. Z.
Van Court Tippecanoe c. C..