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The Home Insurance Company ». Howard.

One who has been led into a contract upon which he has received something of value can not ignore the contract, however induced, and proceed in a court of law as if the relations of the parties were wholly unaffected thereby. He can not, while retaining its benefits, and thus affirming the contract, treat it as though it did not exist. "He can not treat it as good in part and void in part, but must affirm or avoid it as a whole." Higham v. Harris, 108 Ind. 246, and cases cited; Evans v. Gale, 17 N. H. 573 (43 Am. Dec. 614).

The present is quite unlike the case of a compromise or composition by a debtor with his creditors, where the liability of the debtor is conceded, and no dispute exists as to the amount. Where a debtor has effected a composition with a creditor, the liability being conceded, a different rule controls.

In such a case the creditor agrees to release an undisputed claim upon receiving payment of an amount less than what is conceded to be due. If the latter has been led into the agreement by fraud, or if there has been bad faith or concealment on the part of the debtor, the agreement is vitiated, and the principles applicable to cases of rescission do not apply. It is not essential, under such circumstances, that the creditor should have returned the amount received before bringing an action to recover the balance of the original debt. Hefter v. Cahn, 73 111. 296; Bank of Commerce v. Hoeber, 8 Mo. App. 171; Enneking v. Stahl, 9 Mo. App. 390; Pierce v. Wood, 3 Foster (N. H.), 519; Seving v. Gale, 28 Ind. 486.

Where, however, one person denies any liability whatever, another may not first obtain from him what he can under an agreement to compromise, and afterwards, with the money so obtained, without avoiding that agreement, prosecute an action at law to recover as much more of the claim in dispute as he may chance to secure.

Where one has been induced to compromise a claim by fraud he can rescind by restoring, or offering to restore, what he has received as a consideration for the compromise. He The Home Insurance Company v. Howard.

may then maintain an action at law upon the original contract, treating the compromise as rescinded. A person thus situate may, instead of rescinding and suing at law, keep what he has received and commence a suit in equity to rescind the fraudulent compromise and to obtain in the same action equitable relief, offering in his complaint to restore what he has received in case it shall be adjudged he is not entitled t<> retain it. Higham v. Harris, supra, and cases cited; Gould v. Cayuga Coiinty Nqt'l Bank, supra.

Or a person so circumstanced may retain what he has received and sue whoever is liable for the consequences of the deceit by which the compromise was brought about, and recover whatever damages resulted therefrom.

In support of the judgment our attention is called to McLean v. Equitable Life Assurance Society, 100 Ind. 127 (50 Am. R. 779). The facts in the case cited are in many respects analogous to those here under consideration, and, so far as we may judge, the point we have been considering might well have been made there. It is enough to say, however, that the question does not seem to have been made, and there is, therefore, nothing decided in that case in conflict with our conclusion in this.

It is not necessary that we should notice other incidental questions.

The court erred in overruling the motion for a new trial.
Judgment reversed, with costs.
Filed Sept 28, 1887.

The Evansville and Indianapolis Railroad Company v. Hawkins.'

No. 13,217.

The Evansville And Indianapolis Railroad ComPany v. Hawkins.

Continuance.Absence of Attorney.Discretion of Trial Court.Reversal of Judgment.—The refusal to continue a cause, on account of an attorney employed therein being professionally engaged elsewhere, is not a ground for reversal, unless it clearly appears that injustice has been done, and the discretion vested in the trial court plainly abused.

From the Daviess Circuit Court.

A. Iglehart, J. E. Iglehart and E. Taylor, for appellant.
W. R. Gardiner, J. C. Suit and S. H. Taylor, for appellee.

Elliott, J.—The issue between the parties to this cause was formed by the answer of general denial to the appellee's complaint, which sought to recover damages for injuries received by the appellee while a passenger on one of the appellant's trains.

A single question is presented, and that is: Did the trial court err in refusing to grant the appellant a continuance?

The issues were closed on the 10th day of June, 1885, and, on that day, the cause was continued on the appellant's motion. On the 7th day of October, of that year, a second application for continuance was made by the appellant and it is on that application that error is alleged. In support of the application affidavits were filed stating, in substance, that Messrs. Iglehart and Taylor were the regular attorneys of the appellant; that they had examined and prepared the defence of the cause, and alone had charge of said preparation, and that without their assistance the case could not properly be tried on the part of the defendant; "that John H. O'Neall, Esq., has been retained as local counsel only, and has had no charge of the preparation of the case or consultation with his associate counsel, and, therefore, is not prepared to conduct the defence; that Messrs. Iglehart and Taylor have used all prudence and care with their docket in setting 'The Evansville and Indianapolis Railroad Company v. Hawkins.

cases for trial in other counties with a view to be present at the trial of this cause ou Tuesday, October 6th, 1885, the day on which said cause was set for trial;" that they entered on the trial of a cause in Vanderburgh county on Tuesday, October 1st, 1885; that "it was expected by all parties that the trial would be concluded before Saturday evening; that the trial is still in progress, and can not be concluded until after October 7th, 1885."

It is further stated in the affidavits that, " on Saturday, October 3d, Messrs. Iglehart and Taylor, finding the cause in Vanderburgh county would not be concluded for a day or two, nor for some days to come, caused a telegraphic message to be sent to Joseph C. Suit, counsel for plaintiff," and copies of the message and answer are set out.

It is contended by appellee's counsel that the refusal to continue will not be ground for reversal unless it clearly appears that injustice has been done and the discretion vested in the trial court plainly abused. The decided cases fully sustain this legal proposition. Belck v. Belch, 97 Ind. 73; Whitehall v. Lane, 61 Ind. 93; Galvin v. State, ex Tel., 56 lnd. 51.

In the two cases first cited the cause stated for a continuance was much the same as that stated in the affidavits before us, and they are, therefore, of controlling force. In view of the facts disclosed by the record and by the affidavits, we can not declare that the trial court abused the discretion vested in it by law. It is very often proper to postpone a case where counsel are engaged in other causes, and it is doubtless wise for the trial courts to be liberal in such cases; but the right to a postponement can not be regarded as an absolute one except in very strong and unusual cases. A plaintiff has a right to a speedy trial, and where, as here, the defendant has notice several days prior to the day appointed for trial that his regular attorneys can not attend, and has had in his service from the time of answering a "local attorney," it is his duty not to delay the plaintiff, but to preThe McCormick Harvesting Machine Company v. Scovell et al.

pare the local attorney to try the cause. It would often be a great hardship upon a party to postpone his cause because adverse attorneys are engaged in other causes, and it is only in cases presenting very unusual features that postponement for the reason that attorneys are professionally engaged can be claimed as a matter of right. This, certainly, is not such a case, for it is not an unusual one, and we can not hold that there was an abuse of discretionary power by the trial court.

The telegraphic correspondence did not mislead the appellant's counsel, for there is nothing in it justifying an inference that a motion for continuance would not be resisted.

Judgment affirmed.

Filed Sept. 28, 1887.

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No. 12,976.

The Mccormick Harvesting Machine Company V.

Mortgage. Husband and Wife. Tenants by Entireties. Suretyship of Wife.Conveyances to Evade Statute Prohibiting.—S. and wife owned land as tenants by entireties and the former was indebted. To evade the statute (section 5119, R. S. 1881) prohibiting a married woman from incumbering her property as surety, the land was conveyed to a trustee, who reconveyed it to the husband alone, after which it was mortgaged by the husband and wife to secure the former's antecedent debt, and then, through another trustee, reconveyed to the husband and wife as previously held. The mortgagee knew of the purpose of the conveyances.

Held, that under the statute mentioned the mortgage is void.

From the Hamilton Circuit Court.

A. F. Shirts and G. Shirts, for appellant.

T. J. Kane and T. P. Davis, for appellees.

Zollars, C. J.—In January, 1885, as averred in the complaint, appellee Marion R. Scovell executed notes to appel

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