The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1885-04-11
THE COURT RECORD.
supreme Court-April 10. 1888.


Supreme Court-April 10, 1885.
POINTS OF DECISIONS.
Alma Gallaher ct al VS.. State Clinton C. C.
Affirmed. Elliott, J.-(L) 1t is not proper to
move to strike out part of an Indictment II
| the matter objected to is surplusage it does no
harm; if material the Indictment becomes
double, and the remedy is a motion to quash
(2.) 1t is competent for the State, in prose-
cution for rioting where the disorderly conduct
results IN injury to property, to prove the act
(which Md Of caused .s shs injury 49, Mhsn only
| brought into the record and complained of,
and they are obscure, it will be presumed that
the others given removed the imperfections Of
the two
No. 1881 George E. Faulkner vs. Leo A.
Brigel ct al Jay, c. C. Reversed Colerick, G.
The defendant in attachment proceedings is
the only person who can maintain action on
attachment bond, and it cannot be extended
to indemnify a third person whose property may
be wrongfully seized by the officer executing the
writ of attachment. r.. A defect in the form
of such an undertaking cannot operate to ex-
tend the liability of those who executed il be-
yond that contemplated by them at the time of
it's execution. g. Where the clerk wrongly
issues an attachment against property of a per-
sor neither the maker nor the sureties such
bond, are liable in damages to such person.
No. 11404. L, N. A. & G. Railway Company
vs. Ira Hixon. Porter G. C. Affirmed. Frank
lin, C.-Where the evidence shows that horse
was killed in LaPorte county, omission of
the complaint to make direct averment of that
fact is cured by the finding of the court. The
defendant having appeared to the action, formed
an issue and tried it.
No 12002. Board of Commissioners of Fulton
County VS.. Elias Maxwell. Fulton c. G.. Re-
versed. Black, C.-Section 5769, r. s. 1881, re-
pealed section 5771, so that now the board of
county commissioners have exclusive original
jurisdiction Of claims against the county
No. 1921 John Brownlee vs. Board of Com
missioners of Grant county Grant G. G.
Affirmed Best C-Where one claims to have
been omitted by mistake of the clerk from
judgment awarding several persons various
sums paid as taxes illegally collected, and the
report of the master commissioner to whom the
court submitted as to what were the amounts
paid, and the evidence does not include the
report nor show that his name was included in
the report, it does not authorize amendment.
No. 11141. Chicago 81 Eastern Illinois Rail
road Company VS.. Maria Hedges Fountain T.
c. Reversed. Black ely Suit to recover
damages for the death Of appellee's intestator by
the of appellant Where complaint al
leges that the defendant by her servants, care
lessly neggently, purposely and recklessly de-
tached an engine from a train OF cars, they be-
ing in motion, and drove it with quickened
speed ahead and negigentiy, purpoSely, wllfully
and carelessly left said train to follow on the
descending grade so that when the intestator
was in the act of lawfully crossing the track he
was killed. ETC., the words 'purposely" and Twill
fully" charge only killing through negligence.
fully on railroad track is injured by the gross
or reckless negligence of defendants, the defend
ant is liable, is erroneous. Purposely or wifulIy
killing would make the defendant liable b. J
There is no available error in overruling mo-
ton for venire de novo moved for on the
ground of defective answers to Undergraduates
where it appears that whatever answers the jury
might have returned to such interrogatories
could not, in connection with the other answers
returned, have controlled the general verdict
No. 1882. John B. Conner vs. Citizens Street
Railway Company Marion S. G. Affirmed.
Bickneli, Gin action for damages, when
the special verdict states in one finding that the
plaintiff did not wholly contribute to the injury
by any fault, and that it was caused mostly by
the defendant, and the other findings contain
only matters of evidence, negligence in the de-
PENDANT and want of negligence in the plaintiff
is not thereby shown as to entitle plaintiff to
judgment.
No 1l646. Sherman Jewett ct al vs. Peter K.
Mech ct al. Huntington G. G. Affirmed. Bick
nell, c. C.-Q.) conveyance of real estate,
for q valuable consideration, cannot be set aside
for fraud without proof that the grantee was
privy to the fraud u A purchaser for val
liable consideration, without notice Of any equi
table claim on the property can transfer a valid
title. (3) Partnership creditors have no lien
on partnership effects. Their equity is the
equity of the partners operating to the pay
ment of the par tnership debts.
No. 1882. Mary Walker vs. John G. Boyd.
Knox c. G. Affirmed. Mitchell, J.-Where
SlanuerOuS words are laiO IN a cOmpIa1nC as
having been spoken affirmatively, proof that the
substance of the same words were spoken inter
negatively is variance and not admissible.
No. 1897. Tippecanoe G. G. VIM. Marks VS..
State ex rel Petition for rehearing.
No. 12161 Lide Burnett VS.. VIM. c. Burnett.
Pulaski, c. G. Dismissed
No 1922. Warren E. Hartford VS.. John Leas
ct al. DeEalb, G. G. Dismissed.
No. 1929 L. S. & NJ s. Ry Co. VS.. Mary
Foster. Elkhart c. G. Rehearing granted.
No. 11440 Ephraim Dougherty VS.. Sarah ].
Dearborn. Opinion withdrawn. Judgment and
ordar cata aside