heirs, directed that the remainder of his real estate be sold and the proceeds "equally divided between my lawful heirs, after deducting the amounts that the following named heirs have received: 發 My daughter F. has received $2,100; J. has received $1,000. I want my heirs to be made equal, and the re- mainder of my estate to be equally divided between my heirs."
Complaint by F. and J. against the widow, the other heirs and devisces, and the executor, alleging, that the testator recited and charged said sums against the plaintiffs errone- ously, through mistake and inad- vertence; that, in truth, F. had re- ceived only $300, and J. had re- ceived no advancement whatever. Prayer, that the mistake be correct- ed, and that, in making distribution under the will, the advancement charged to J. be excluded, and that charged to F. reduced to $300. Held, that the matter sought to be contradicted was not simply the re- cital of a fact (although if merely such the plaintiffs would, it seemed, have been estopped from denying the truth of the recital), but also a limitation upon the interest of the plaintiffs in the estate devised. Ileld, also, that evidence dehors the
will was not admissible to prove the alleged mistake.
Held, therefore, that the complaint was bad on demurrer.... ...Ibid. 3. Dying Declarations.- When Ad- mitted.-Where the statements of a person are offered in evidence as his dying declarations, the proof must clearly show that the decla- rant was in fact at the very point of death, and that he was fully con- scious of that fact, not as a thing of surmise and conjecture or appre- hension, but as a fixed and inevitable fact. Morgan v. The State........193 4. Same. It is not required that the deceased should have declared in terms that he expected to die at once, if his condition was such that, of necessity, such an impression must have existed on his mind. On the other hand, no matter how strong the expression of this certainty of death may have been, if there be
VOL. XXXI.-35
IIeld, that it was properly excluded. Hagee et al. v. Grossman...........223
Number of Witnesses.-A party cannot lawfully be limited by the court to one witness upon a vital point in issue. Hubble v. Osborn.249 Same.-Resulting Trust.-Suit by A. against B. and C. for possession of certain real estate purchased by the plaintiff at sheriff's sale on an execution in favor of the plaintiff issued upon a judgment against B., the legal title at the time of such sale standing in the name of C., to whom it had been conveyed by D. The plaintiff claimed that B. had paid the purchase-money, and, to defraud his creditors, particularly the plaintiff, to whom he was then largely indebted, procured the con- veyance to be made by D. to C. It was claimed in defense, that in mak- ing the purchase B. acted as the au- thorized agent of C., who was not present, and that B. advanced the purchase-money in pursuance of an agreement with C. by which he was to so advance it as a short loan to C., who soon afterwards repaid the mon-- ey. On the trial, B. testified to this. effect, and C. testified to the same facts, except as to the fact of the loan, concerning which the court refused to allow him to testify. Held, that this refusal was error..Ibid. 8.
Same.- Admissions.- The admis- sions and declarations of the person paying the purchase money made after the conveyance to the other person, are not admissible in evi-- dence against the latter.......... Ibid.
Statement of Evidence to Jury.— Bill of Exceptions.-The statement of the evidence which a party is allowed to make to the jury by sec- tion 324 of the code is, as to its brevity or prolixity, a matter to be
EXECUTOR AND ADMINISTRA- TOR.
See DECEDENTS' ESTATES.
left, to a considerable extent, to the | See PRACTICE, 3; PRINCIPAL and Sure- control of the court trying the cause; and where the interference of the court is complained of on appeal, the bill of exceptions must show the statement that was being made when the court interposed. Ayles- worth et al. v. Brown et al.........270 10. Statute Book of Another State.— A book purporting to be Swan and Critchfield's edition of the statutes of Ohio was offered and, over ob- jection, admitted in evidence. By the title-page it appeared, that it was "published by the State of Ohio, and distributed to its officers, under the act of the General Assem- bly."
Held, that there was no error. Paine et al. v. The Lake Erie & Louisville R. R. Co...... .283 11. Statute of Another State.-Cor- poration.-Pleading.-Where a stat- ute of another State constitutes a part of the organization of a corpor- ation suing in this State, it is not necessary to its introduction in evi- dence by the plaintiff that it should have been pleaded.................Ibid. 12. Parol Evidence.- Written Order. Trees were delivered to a buyer up- on his written order directed to the seller, for certain trees at specified prices.
Held, that parol evidence was admis- sible to prove an agreement of the parties at the time of making said order, that the seller should replace any of the trees that might not grow. Morehead v. Murray et al..418 13. Principal and Agent.--Declara-
tions. As steps in proving the au- thority of one as an agent in the transaction in controversy, evidence of his similar transactions with dif- ferent persons and of his declara- tions therein was held admissi- ble ...Ibid.
See BILL OF EXCEPTIONS; PRACTICE, 8, 18, 28, 30.
See PLEADING, 21. EXPRESS COMPANY.
See COMMON CARRIER, 1, 2, 3.
FALSE IMPRISONMENT. See ARREST.
2. Same. An indictment for defacing and destroying a promissory note must show whether the note was for the payment of money or prop- erty...... Ibid.
See PLEADING, 12; PRACTICE, 5; RE- SCISSION, 1 to 6; TRUST, 8; VOLUN- TARY CONVEYANCE, 3.
1. Sale-Agent.-On a sale of goods it was agreed that the buyer should give to the seller, in payment, upon delivery of the goods, notes of sol- vent persons. A certain note so given was not such as the contract thus called for, and the buyer, know- ing this, fraudulently deceived the seller's agent, to whom he delivered the note, knowing him to be such agent and knowing that the pro- ceeds of the sale were to go to, and become the property of, the agent, who, on discovering the deceit, of- fered to return the note to the buy- er and demanded of him other good notes. There being evidence of these facts in a suit by the seller against the buyer, the plaintiff bringing the note into court and offering to re- turn it to the defendant; there was a finding for the plaintiff in a cer- tain sum, and that the defendant be entitled to withdraw the note from the files of the court and hold it as his own.
Held, that the finding was correct. Kinney v. Blythe.................140 2. Same.- Deceit.-Where a seller of goods knowingly makes false representations to the buyer as to their quality, but the buyer does not rely upon such representations and is not deceived thereby, the seller is not liable in an action for deceit. Hagee et al. v. Grossman...........223 3. Same. Where a seller has made false representations as to the qual- ity of the goods, but the buyer, in making the purchase, relies on a test of their quality made by his own agent, who is not prevented by any act or word of the seller from testing the goods, the seller is not liable for deceit....... ......... Ibid.
4. Railroad.-Directors.-Persons who are directors of a railroad company
the profits of a contract for the con- struction of the road as to give them a standing in a court of equity to interpose an objection to the con- summation of a compromise between the railroad company and its con- tractor. Paine et al. v. The Lake Erie & Louisville R. R. Co........283 5. Same.-Stockholders.-An arrange- ment made by persons who are di- rectors of a railroad company with a contractor, by which such persons are to share in the profits of the contract for the construction of the road, can only be confirmed by the stockholders, and not by the direct- ors of whom the guilty persons form a part......... ..Ibid.
FRAUDS, STATUTE OF.
See STATUTE OF FRAUDS. FRAUDULENT CONVEYANCE.
Appeal.-No appeal by the State to the Supreme Court lies from the ruling of a judge discharging from arrest a prisoner brought before him for examination as provided by the act of March 9th, 1867 (Acts 1867, p. 126), "to regulate the arrest and surrender of fugitives from justice from other states and territories." The State v. Morgan.......... .......66
See HUSBAND AND WIFE, 14.
See COURT OF COMMON PLEAS, 2.
See GUARDIAN AND WARD, 7.
cannot acquire such an interest in 1. Pleading.- Complaint.- Promise.
A complaint against a guardian, to recover for maintaining and provid- ing for his ward, did not contain any averment of a request or promise made by the defendant, or any alle- gation that he had failed to provide, within the means in his hands as guardian, for the reasonable wants of his ward.
Held, that the complaint was bad on demurrer for want of sufficient facts. Gwaltney, Guard., v. Cannon.....227 2. Jurisdiction.-Associate Judges.- The Associate Judges, as a Court of Probate, had jurisdiction on the 10th of August, 1829, to appoint guardi- ans for infants, and such court was a court of record. It had jurisdic-. tion of guardians' petitions to sell lands. Such jurisdiction extended to lands situated anywhere within the State. Though the law required a bond to be given before entering the order of sale, the failure to re- quire one would not render the pro- ceeding void. Dequindre et al. v. Williams.....
444 3. Same.-Probate Court.-The Pro- bate Court, upon its organization under the act of 1829, had authority to take jurisdiction of matters in relation to guardians and wards then pending in such Court of Probate held by the Associate Judges, and conduct them to conclusion..... Ibid. 4. Same. Collateral Proceeding.- Where a proceeding in a court of superior jurisdiction is of such a character that upon final action the court should, from the nature of the case, ascertain whether it is such in fact that it has jurisdiction to act as it is invoked to do, and it does so act, the matter cannot be questioned collaterally Ibid.
5. Same.-Residence of Ward.-The Associate Judges, as a Court of Pro- bate, on the 10th of August, 1829, appointed a guardian for certain in- fants.
Held, that an inquiry as to whether the infants were at the time of such appointment residents of this or an- other state, could not be raised col- laterally .........Ibid.
court of superior jurisdiction having authority to make such appointments and jurisdiction of guardians' peti- tions to sell lands, but without juris- diction to make the particular ap- pointment, sells land of his ward, un- der an order of such court, to one who purchases and pays for such land, relying in good faith on such order, such purchaser will be protected in the title so acquired, if the guardian applies the proceeds properly. And in an action by the late ward, ar- rived at majority, to recover such land, a debt of the guardian against the deceased father of the ward, through whom the plaintiff claims title, allowed by such court as a eredit to the guardian upon settle- ment, will be presumed to have been rightfully allowed... ...Ibid.
Indian Treaty.-Grant.—Relation. A section of land, to be located un- der the direction of the President, was granted to a certain person by an Indian treaty; and after the death of the grantee the proper court, up- on petition of the guardian of the grantee's heirs at law, ordered the sale of the unlocated section; and, the land having been located by the assignce of the purchaser at such guardian's sale, the proper court ordered a conveyance of the specific land to such assignee, which was made, but never approved by the President.
Held, that, by the doctrine of relation, the treaty operated instantly in law as a grant, the subsequent location of the land merely ascertaining the specific thing which was granted. Held, also, that the approval of the President was not necessary to the validity of the guardian's deed of ...Ibid.
8. Same.-Case Stated.-Suit by the heirs at law of A. against B., to re- cover certain real estate. Trial upon the following agreed statement of facts: A section of land was granted by treaty with the Potawatamies, of October 16th, 1826, to A., to be located under the direction of the President. It was located, in 1837, in Allen county, without the terri- tory ceded by the Indians under said treaty, the premises in controversy being a part of that section. In
See APPEAL, 3; CRIMINAL LAW, 3; NUI- SANCE, 1, 2.
1828, A. died, in Illinois, where he then resided, leaving a widow and children surviving him, who con- tinued to reside in Illinois until 1831, when they removed to Knox county, in this State, prior to which they had no property in Indiana, except the unlocated land. It ap- peared by the record of certain pro- ceedings in Knox county, that on the 10th of August, 1829, the court doing probate business, held by the Associate Judges, appointed a guar-1. dian of A.'s children, the plaintiffs in this action, and that "there being no property," no bond was required. The bond required by law was to be in double the value of the personal property. On the following day, the guardian presented his petition to sell the unlocated section, and, after, an appraisement at $800, the sale was ordered, the guardian to give bond with sureties approved, within) thirty days, but no such bond ap-l peared in the transcript of the pro- ceedings. The sale was to be pri- vate, for one-half cash and the bal- ance in two equal annual instal- ments. In August, 1839, the guar- dian reported to the Probate Court, that in November, 1831, he had sold the float for $1,000 to one who transferred his right to another, and he to C., who paid the purchase- money and, after having procured the land to be located, died; the re- port describing the section located. The Probate Court confirmed the sale and directed a conveyance of the specific land to the heirs at law of C., which was accordingly de- livered, but was never approved by the President. The title of C. and, his heirs afterwards became vested in B., who, with his grantors, paid taxes on the land and took care of and protected it from 1841, though not in actual possession, till the commencement of this action, in, 1835. From its location in 1837 till 1841 it was worth $30 per acre. From January, 1829, till 1840, the United States, it was admitted, heldi public lands in Knox county and 3. elsewhere, in this State, and other states. Upon this evidence the court found for the defendant. Held, that the evidence sustained the finding ..... Ibid.!
See BROOKOVER v. FORST, 255.
Practice. Obstruction of High- way.-Injunction.-In an action to enjoin the obstruction of a public highway within the limits of an incorporated town and under the jurisdiction and control of such cor- poration, brought by a plaintiff who predicates his right to such relief on the ground that he is the owner of certain lots fronting upon the high- way obstructed, such corporation is not a necessary party plaintiff. De- bolt v. Carter et al.. ........355
Same. Another Action Pending.- Suit by the owner of certain town lots, denying the existence of a high- way upon and along a portion there- of, as claimed by the defendant, and seeking to quiet the plaintiff's pos- session of the lots, freed from the claim of such highway, praying a perpetual injunction against the defendant, restraining him from dis- turbing the plaintiff's possession or asserting an casement over the lots as a public highway. After answer and reply, the defendant filed a cross complaint, asserting the existence of an casement as a public highway over a part of said lots, charging the plaintiff with having unlawfully obstructed it, to the special injury of the defendant, and praying that the plaintiff be perpetually enjoined from repeating or continuing such obstruction.
Held, that the cross complaint was not bad on demurrer on the ground that another action was pending between the same parties for the same cause, to wit, the original complaint, the answer, and the reply........... Ibid.
Uscr.-A county road was located by the board of county commission- ers, in 1840, over certain lands, the location being defective for not specifying the width of the highway; but, in pursuance of the order of
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