The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1886-09-15
Supreme Court.

non. u. v. HoWks y. D.
The following decisions were rendered Sept. IL
OBSERVATION-DISCLOSURES TO ACT, HOW TRIED.
1908. James North, sr, ct al vs. State ex
rel John M. Pate ct al. Dearborn c. C.. Re-
versed Howk G. 1.-THE facts show that ap-
pellants and their associates were, and had been
for many years prior TO the commencement of
this suit, operation de facto If not de jure,
acting under a corporate name, in the possession
of corporate property. performing corporate acts,
and possessing and exercising corporate rights
and franchises In such case the existence Of
the corporation and the rights OF appellants to
act as such can only be tried in proceeding in
stituted on behalf Of the State by the prescott
Ing attorney.
TOWNSHIP TRUSTEE-ELIGIBILITY.
1899 Gotlieb Vogel VS.. State ex rel Laud,
Prosecuting Attorney. Perry C. @. Reversed.
Collars I'LL Where the State. by in
formation. challenges the right of party to
hold an Office the action will not abate because
of an action pending between the parties. IL
In 1882 one Marks, having been elected justice
OF the peace, was by the Governors commission,
He qualified April g. April 5, 1886. appellant
and Marks were rival candidates for the trustees
Office, Marks receiving the majority of the votes.
April II he fled his bond, qualified
and demanded of appellant the books, ETC., but
the latter refused to surrender them because Of
the ineligbity of Marks. By the terms Of the
commission Markss term was for four years from
the 18th day of April. 1882, and that day should
be counted as part of his term and, the law
not recognizing portion of day, his term ex-
PRED at midnight of the 10th day Of April, 1886.
In determining the term Of the trustee, the day
of the election is to be excluded. The election
was on April 5, and ten days being allowed to
qualify. the term began on April 16 Marks's
term as justice not having expired, he was incl
igible IS trustee.
CONTRACT-RELEAsE-TR
I2416, Giles w. Barrow VS.. the Terre Haute
81 Logausport Railroad Company. Marshall @.
G. Affirmed Elliott. J.-Suit for possession of
real estate. Answer: That plaintiffs grantor
had executed to defendant an Incorporated rail
way, contract of purchase, and that plaintiff
had notice of the contract before purchase. The
contract provided that Tin consideration of the
advantages which will accrue to me in partcu-
ton of a railroad, do hereby release
and quitclam to j. Letter and A. d. Toner. in
trust for such railroad company. the right of way,
for railroad purposes only. for SUCH railroad
as follows: Description. And I do hereby
empower and direct said Letter and Toner to con-
vey by good and sufficient deed the said right of
way to the company, and do release and relin
quish all claims for damages by reason of the
location and construction of said road" etc.
This instrument is d contract upon valuable
consideration, and not a mere naked license.
The land is conveyed to Letter and Toner as
trustees. and they authorized to execute their
trust by proper convevances. The contract
grants an easement to the railroad company, and
for doing any act within the grant, and reasona
bly, necessary to enjoy the easement granted, the
company cannot be regarded a wrong -doer. The
appellant having bought with notice, the release
protects the company from damages.
REPLEvIN BoND-REs ACKNOWLEDGEMENTS
11031. James B. McFadden ct al VS. James
r. Ross ct al Shelby G. G. Reversed. Mitch
ell J.-Suit replevin bond. The defend
ants having admitted the genuineness of their
signatures to the bond and the approval of the
sheriff being Endorsed thereon as of the date of
the commencement of the suit, its execution
was sufficiently proved to authorize its admis-
defendants, that the bond had never
been delivered to the sheriff but to a
bailiff; that the writ had been delivered to the
latter and he had seized the goods. aud that
lied by him had taken the goods nor accepted
the bond. was properly refused. the bond having
upon it the approval of the sheriff and his official
return being Endorsed upon the writ. Neither
the principal nor the surety on the bond will
now be heard to impeach the regularity
of the person who seized the property
and from whose hand ehey accepted it.
81 Evidence by the defendant that he held an
unpaid chattel mortgage on the property in con-
troversy, was admissible in mitigation of dam
ment in the replevin suit precluded the defend
ant from awaiting himself of the benefit OF the
mortgage. The complaint in that suit rendered
no issue except as TO possession and, as in such
jud gment determines nothing but the right of
possession. No question of title could have been
conclusively determined; and the evidence was
competent
13l47 Thomas Murphy VS.. The State. Owen
G. G. Affirmed. Niblack, Affirmed on the
authority of Murphy vs. State. LOG Ind, &C.
The following cases were dismissed:
1924 Sohn McCune vs. the Sta to ex rel Jas
Lapree ct al DeKalb G. G.
1876 VIM. Perry auditor, VS.. the State ex
rel. John W. Lain. Starke c. O.
1886 Thomas B. Harris ct al. vs. ex REL Sam
uel Bachman ct al. Madison G. G.
1854 Jas. A. Downward vs.. Benjamin K Blake
ct al Hendricks G. G.
13e42 Henry Weiss ct al VS.. Theodore E.
Clapp. Lagrange G. c.
1892 George c. Desch VS.. The State ex rel.
Josie Swayne Wayne c. @.
994l. Robert l.. Bridges, administrators, va
Arthur S. Forsdyke. Marion s. c.
1868 VIM L. Granger ct al. VS.. Levi SohL
Hamilton c. G.
l2SlL Thomas W. Browner ct al. VS.. Sarah
j. Ravens. Grant G.. c.
Francis E. Baker, of Goshen; Elias r. Casper
and Frank B. Taylor were admitted to practice
before the courts.
Rnv