The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1886-09-16
THE RECORD or THE COURTS.
Supreme Court.


The following decisions were rendered Sept. 15
CORPORATION - OFFICER - ACKNOWLEDGEMENTS
TfoN.
12648. Rochester Rensselaer, & ST. Louis
Railway Company vs.. Casper B. Jewell Miami
e. O. Affirmed Howk. G. J.-When summons
were issued by the clerk of the county in which
the suit was pending to the sheriff Of another
county tor the officers OF the defendant, cor
poration, it will be presumed in the absence of
a showing TO the contrary, that the clerk
properly issued the summons, because there was
no person, officer or agent of the defendant in
the county where the suit was pending.
OBSERVATION-DISCLOSURES
1885. John Higham ct al. vs. Hosier j, Har-
ris ct al Switzerland c. G. Reversed. Mitch
ell J.-In order to rescind a contract at law the
injured party must have seasonaby rendered to
the other all benefits received so as to have prac-
tically rescinded before suit brought In equity
he must not have been guilty of laches and he
must have so far maintained the statu quo on
his part as that court of equity can by its de.
cree effectuate rescission upon equitable terms
In either case regard is to be had in applying
the principles pertaining to rescission, whether
the contract involved is entire and indivisible
whether it is severab.e into independent con-
sttuents involving different persons, and whether
1t rests upon consideration susceptible of dis
tinct apportionment. Where the subject matter
or the consideration is entire there can be
no partial rescission-it must be complete.
When contract is divisible, each part ndepend-
emit OF the other, the injured party may resciud
one part while adhering to the other. Each
subject matter in the contract in controversy is
independent of the other, and, if supported by
any consideration is upon a distinct considera-
ton. Equity may, therefore, accomplish exact
justice between the parties An acknowledge
ment in such contract that statement of an &C
count was correct was shown to be gratuitous;
that the beneficiary knew it, and that those re-
lying it had notice of it's being without cousid
GRAFTON. The acknowledgment cannot be per-
mitted to stand in the way of the appellants
equitable rights Where two persons buy land
as tenants in common, but partition it, one hav-
ing paid his equitable share of the purchase
money, he stands in all respects surety for the
other, as principal for the payment of the re-
naming purchase money.
RES ADJUDIoATA.
12440 John P Bundy VS.. George L. Gun
ningham ct al. Madison G. G. Affirmed. Ell
lott J.-Suit to quiet title The appellant as
defendant, claimed under a mortgage In suit
to foreclose that mortgage the pleadings put the
question of the validity of the mortgage in ISSUE
and the decree adjudgsd that issue in favor of
appellees, and it now settles that issue against
appellant.
TELEGRAPH COMPANY PENALTY SPECIAL
FINDING.
12481 Western Union Telegraph Company
vs. Alonzo F. Brown. Vigo G. G. Reversed
collars, 1.-The act OF 1885 concerning the du-
ties OF, and providing penalties against tele-
graph companies repeats Sec. 4176 Il. S.
The penalty here was incurred before
the repeal, but the action brought afterwards
The general rule is that an action cannot be
maintained to recover a penalty after the act
giving 1t has been repealed unless it is saved by
the repeating act. But this right is saved by
Section 248, which provides that no penalty in
Cured under such act shall be extinguished I'M
less the repeating act so provides. (2.) The
special finding shows that the plaintiff delivered
to defendants agent for transmission dispatch;
that plaintiff paid the amount demanded for It's
transmission. The dispatch was signed III. f.
Brown" the plaintiffs name being Alonzo f.
Brown. There was no finding that the sigma
ture was plaintiffs. This was not a finding that
plaintiff was the sender of the dispatch, in the
sense of the statute. That fact should affirma-
lively appear
13148. Thomas Murphy vs. the State. Owen
G. G. Reversed. Niblack, J.-Reversed on the
authority Of Murphy VS.. State. (106 Ind, 96.l
12649 to 1867. Rochester. Rensselaer, 81 ST.
Louis Railway Company vs.. Samuel T. Miller.
Arthur j. Spencer. Joseph Mckee, William Fur
Philip Jenkins John B. Fulkerson, Watson K.
Woodruff. Miami G. G. Howk, c. Affirmed
on the authority of 12648 above
1871. John McCune ct al VS.. Clara Rice ct
al. Dekalb G. G. Dismissed.
Charles B. johnson, Terre Haute. admitted to
practice
1894 James Goodwine VS.. Gideon Leak ct al.
Warren c. c. Dismissed.
1897 Moses Bradford vs. School Town of
Marion. Grant c. g. Reheariug denied
1864 Amy Castor VS.. Jonas A. Jones.
1856. Frederick Sanders VS.. Margaret Well
burg. Marion C. G. Rehearing denied.
1878 Weed Sewing Machine Company vs.
George N: Winchel ct al. Grant G. c. Rehear
ing denied.
I1979 VIM F. Daggett vs. Jacob Bonewitz
ct al. Knox c. G. Rehearing denied