8. Same.-Right of Agent to Maintain Action.—The right of an agent to
bring an action in his own name in certain cases is subordinate to the
rights of the principal, who may bring suit himself, and thus suspend
or extinguish the right of the agent, unless in particular cases where
the latter has a lien or some other vested right.
See APPEAL, 11; ATTACHMENT, 2 to 5; CONVEYANCE, 3; GUARANTY;
HUSBAND AND WIFE; JUDGMENT, 15; MARRIED WOMAN; MORT-
GAGE, 4, 8; Office and OFFICER. 4.
1. Mortgage.—Bankruptcy.—Discharge of Principal. The lien of a mort-
gage given by a surety to secure a debt of the principal, is not released
by the latter's discharge in bankruptcy.
Post v. Losey, 74
2. Same.-Discharge of Bankrupt as to Surety.-Proof of Claim.-A debtor is
relieved from liability to his surety by his discharge in bankruptcy,
whether the surety proved the debt against his estate or not. Ib.
3. Same.-Moral Obligation of Bankrupt to Pay Debt.-Consideration for New
Promise. After his discharge in bankruptcy a debtor is released from
legal liability to pay a prior debt, but not from the moral obligation,
and the latter will constitute a sufficient consideration for a promise
to pay such debt.
Ib.
4. Same.-Agreement to Extend Time of Payment.-Endorsement on Note.-
Alteration of Contract.- Where, after his discharge in bankruptcy, the
principal debtor and the creditor agree to an extension, for a definite
period, of the time of payment of the debt, and to a reduction in the
rate of interest, in consideration of which the former agrees to pay
the debt at the time stipulated, and the agreement is endorsed on the
back of the note originally given, the face of the note and the endorse-
ment are to be construed together, and together they constitute the
contract between the parties. Huff v. Cole, 45 Ind. 300, and Bucklen
v. Huff, 53 Ind. 474, distinguished.
5. Same.-Husband and Wife.-Mortgage.-Alteration of Contract.- Release
of Surety. Where a married woman, in 1875, as surety, joined her hus-
band in the execution of a promissory note, and executed a mortgage
upon her separate property to secure it, and the husband was subse-
quently discharged in bankruptcy, after which, the creditor having
knowledge of all the facts, an agreement to extend, for a definite pe-
riod, the time of payment of the note and to reduce the rate of inter-
est, in consideration of which the husband stipulates to pay the debt,
is entered into between the creditor and the husband, without the
wife's consent, and endorsed upon the back of the note, there is such
an alteration of the contract as releases the wife's property from lia-
bility.
Ib.
6. Promissory Note.-Payment.-Rights of Surety.-A surety in a promis-
sory note has the right to require payment of the note to be enforced
when it becomes due; or he may, without compulsion, pay and take it
up and immediately institute such proceedings as are necessary for
his reimbursement.
Nixon v. Beard, 137
7. Same.-Agreement of Third Person to Protect Surety.-An agreement "to
secure and protect (at any time payment must be made)" another in
the settlement of a described promissory note, upon which the latter
is surety, binds the promisor to take such measures as are necessary
for the protection of the surety, whenever payment of the note, after
its maturity, may be required, either by the payee or the surety. Ib.
8. Judgment Defendants Primarily Liable. Establishment of Suretyship.—
Parties against whom a judgment is taken are deemed primarily lia-
ble, unless the judgment determines the question of suretyship, though
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after judgment one who occupies the relation of surety may have the
fact judicially established, and an order for an execution in his favor.
Knopf v. Morel, 570
9. Same.--Co-Sureties.--Jurisdiction.--Jurisdiction to determine the rights
of the plaintiff as against the defendants is not jurisdiction to deter-
mine the rights of the defendants on the question of suretyship, and
does not of itself authorize an adjudication on that subject.
10. Same.--To secure a judicial determination of the question of surety-
ship, proper steps must be taken to invest the court with jurisdiction,
and jurisdiction is not conferred by a complaint upon an instrument
which does not on its face fully disclose the relation of the parties. Ib.
11. Same.-Question of Suretyship an Independent One.--General Pule.--Excep
tion.--The question of suretyship, so far as it affects the rights of the
debtors between themselves, is an independent one, and is not as a
general rule determinable upon the complaint, although there are
cases where the complaint so fully discloses the facts as to give juris-
diction to adjudicate upon questions of suretyship without process
issuing upon the cross-complaint, and even without a cross-complaint.
Githens v. Kimmer, 68 Ind. 362, limited.
12. Same.--Endorser.- Establishment of Suretyship.
An endorser can not
have a judgment conclusively establishing suretyship upon the com-
plaint of the plaintiff on a promissory note upon which, from the po-
sition of his name upon the instrument, he prima facie appears as
surety, without bringing the makers into court upon the question of
suretyship.
13. Same.--Judgment Determining Suretyship Without Proper Pleadings Void.—
A judgment rendered in an action before a justice of the peace,
where the only complaint is a promissory note bearing the names of
two makers on the face thereof and the name of another on the back,
which assumes to determine the question of suretyship by adjudging
the party whose name is on the back of the note to be surety, there
being no pleadings filed raising such question, is invalid so far as it
assumes to settle the question of suretyship, and is no bar to a subse-
quent action for contribution against the party so adjudged to be
surety.
Ib.
14. Same.--Endorser.--Liability of.-Presumption.-Evidence.--An endorser
is not presumed to be a co-surety of one who signs as maker of a note.
but parol evidence is admissible to prove that he did sign as co-
surety.
Ib.
15. Same.--Contribution.-- Endorser.--Co-Sureties.-- Pleading.--Complaint.
In an action for contribution, by one claiming to be surety on a prom-
issory note upon which judgment has been rendered against an en-
dorser who it is alleged was the co-surety of the plaintiff, it is sufficient
to allege in the complaint that they were co-sureties, and that neither
received any part of the consideration, without an averment that
there was any contract between the parties establishing the relation
Ib.
16. Same.-Co-Sureties.-Contract Between Endorser and Maker.—Evidence.—
Admission by Conduct.-In an action for contribution by one claiming
to be surety, seeking to establish the relation of co-suretyship between
himself and one claiming to be endorser merely, evidence tending to
show that the latter had entered into an agreement with the maker,
after the execution of the note, that such maker should pay him five
dollars each week, and that under such agreement he had received fif-
teen dollars, is admissible, not for the purpose of charging the de-
fendant with the money received, but as an admission by conduct. Ib.
17. Same. The fact that an endorser of a promissory note received money
from the principal to apply on the note is not of itself sufficient to
entitle one who signs as maker to contribution. The endorser is
bound to apply the money so received to a reduction of the debt, but
his position is not thereby changed to that of a co-surety.
PROCEEDINGS SUPPLEMENTARY TO EXECUTION.
See EXECUTION.
See DECEDENTS' ESTATES, 1; FRAUD; JUDGMENT, 4, 5, 11, 15; PARTNER-
SHIP; PAYMENT; PRINCIPAL AND SURETY.
PROSECUTING ATTORNEY.
See CRIMINAL LAW, 22, 40 to 42.
QUIETING TITLE.
See ADVANCEMENT; CONVEYANCE; DEED; HUSBAND AND WIFE, 3; NEW
TRIAL, 5; REAL ESTATE, 1; STATUTE OF LIMITATIONS.
1. Guardian's Sale. - Ejectment.- Former Adjudication.- Pleading.-To a
complaint by the heirs of W. against the remote grantees of R. to quiet
title to real estate, an answer setting up a judgment rendered in an
action prosecuted in his lifetime by W. against R., then in possession
and claiming title through a sale made upon petition of the guardian
of W., for the recovery of the land, wherein it was decreed that W.
was not the owner and was not entitled to the possession thereof, is
good.
Walker v. Hill, 223
2. Complaint.-Necessary Allegations.-A complaint to quiet title must
show, either by direct averment or by the statement of facts from
which the inference necessarily arises, that the defendant's claim is
adverse, or unfounded, and a cloud upon the plaintiff's title.
Otis v. Gregory, 504
QUO WARRANTO.
See OFFICE AND OFFICER, 5.
See COMMON CARRIER; CONTRACT, 1 to 4, 7; EVIDENCE, 1, 2, 4; MASTER
AND SERVANT; NEGLIGENCE.
1. Bridge Abutting on Highway.-Fence.-Stock. While a railroad company
is not required to fence its track, or to maintain cattle-pits, at points
where to do so would interfere with the safety of its employees in op-
erating trains, or where fences or cattle-pits would interfere with its
rights or with the rights of the public in travelling or doing business
with the company, yet the burden is upon the company to show that,
in constructing and maintaining a bridge abutting upon a highway,
it had adopted all reasonable and practicable precautions to keep
animals from entering upon the bridge from the highway; and it
does not alter the case that the bridge may have been partially in
the highway, or that the animal may have been struck while upon
that part of the bridge extending into the highway, on ground appro-
priated by the company.
Cincinnati, etc., R. R. Co. v. Jones, 259
2. Same.-Securely Fenced.-Where, in the absence of a showing that it
is reasonably impracticable to do otherwise, a railroad company main-
tains a bridge in such a condition that animals may enter upon it
from a public highway, thus putting in jeopardy the safety of trains as
well as the lives of the animals, the railroad is not securely fenced. Ib.
See CRIMINAL LAW, 7, 8, 43.
RATIFICATION.
See ATTORNEY AND CLIENT, 1, 2.
REAL ESTATE.
See ADVANCEMENT; CANAL; CONTRACT, 5; Conveyance; Decedents'
ESTATES; DEED; FRAUD; GUARDIAN AND WARD; HUSBAND AND
WIFE; JUDGMENT, 2, 9, 13; MARRIED WOMAN; MECHANIC'S LIEN;
MORTGAGE; QUIETING TITLE; SHERIFF'S SALE; STATUTE OF LIMITA-
TIONS; TAX SALE; TRUST AND TRUSTEE; WILL.
1. Action to Recover.-Parent and Child.-Evidence. In an action by a
father against a daughter and her husband to recover possession of
land and to quiet title, the evidence showed, in substance, that the
plaintiff was the owner in fee simple of the real estate; that he was
an old man; that he had proposed to his daughter that if she would
live with and take care of him during the remainder of his life, he
would, at his death, give her all his property, and that she should
have the use of all which he did not want to use; that the proposi-
tion was accepted, and the daughter and her family moved upon the
land and into the plaintiff's house; that a deed from the plaintiff
to his daughter had been prepared but never executed.
Held, that the evidence is not sufficient to sustain a judgment for the
defendants.
Zenor v. Johnsoa, 42
2. Executory Contract to Convey. -Suit to Enforce.-Tender of Deed.--Com-
plaint.—Where the vendor seeks to enforce an executory contract for
the conveyance of land, the complaint must aver a tender of a suffi
cient warranty deed, and the tender must be kept good by bringing
the instrument into court, or by an averment of a readiness and will-
ingness to execute a deed that will vest title in the purchaser.
REAL ESTATE, ACTION TO RECOVER.
See CONVEYANCE; QUIETING TITLE, 1; REAL ESTATE; STATUTE OF LIM-
ITATIONS; TRUST AND TRUSTEE
See JUDGMENT, 13; SHERIFF'S SALE, 5 to 8.
Construction of.-Extrinsic Evidence.--To enable a court to construe a release
from the stand-point occupied by the parties, extrinsic evidence is ad-
missible to explain the circumstances under which it was executed,
and the nature of the transaction to which it was designed to apply.
The particular purpose for which it was executed ought to be kept in
view, and where only general words are used they are to be construed
most strongly against the party executing the release. Rowe v. Rand, 206
REMEDIES.
See APPEAL, 6.
Misconception of Party.-A party who imagines he has two or more reme-
dies, or who misconceives his rights, is not to be deprived of all rem-
edy, because he first tries a wrong one, which is not inconsistent with
the true and effectual remedy which he should have pursued in the
first instance.
Bunch v. Grave, 351
RENTS AND PROFITS.
See SHERIFF'S SALE, 5 to 8.
REPEAL OF STATUTE.
See CONSTITUTIONAL LAW; GRAVEL ROAD, 6; STATE UNIVERSITY; STAT-
RESPONDEAT SUPERIOR.
See COUNTY, 1; GRAVEL Road, 10.
REVIEW OF JUDGMENT.
See APPEAL, 5, 6.
RULES OF COURT.
See SUPREME COURT, 9.
See CORPORATION; DECEDENTS' ESTATES, 2, 3; GUARDIAN AND WARD;
JUDGMENT, 9, 13; SHERIFF'S SALE; STATUTE OF LIMITATIONS; TAX
SALE.
SCHOOL FUND MORTGAGE.
See MORTGAGE, 2.
SCHOOLS.
1. Rules and Regulations.-Power of School Boards to Adopt.-Under the
statutes of this State, construed in connection with the incidental
powers of corporations, the various school boards, and other educa-
tional authorities, have power to adopt appropriate rules and regula-
tions for the government of the schools under their control.
Fertich v. Michener, 472
2. Same.- Method of Adopting Rules.-Superintendent or Teacher May Make.
--It is not necessary that all rules for the discipline and government
of schools shall be made a matter of record by the school board, or
that every act, order or direction affecting their management shall be
authorized or confirmed by a formal vote; but any reasonable rule
adopted by a superintendent or a teacher, not inconsistent with some
statute or some other rule prescribed by higher authority, is binding
upon the pupils.
Ib.
3. Same.-City Schools. - Authority of Superintendent.--A rule requiring the
superintendent of city schools to visit weekly all the schools under
his charge, and to see that the best methods of instruction are adopted,
confers upon him authority, if it were otherwise wanting, to order
and promulgate such additional reasonable rules as the best interests
of the schools may require.
4. Same.-Tardy Pupils.-Exclusion from School Room During Opening Erer-
cises.-Reasonableness of Rule.-A rule requiring tardy pupils to remain
either in the hall of the school building, which is provided with heat,
or in the office of the principal, until the opening exercises, lasting
from ten to fifteen minutes, are concluded, in order that such exer
cises may not be interrupted or disturbed, is in itself a reasonable
regulation.
5. Same.-Enforcement of Rules.—Must be Reasonable Under the Circumstances.
-In the enforcement of all rules for the government of a school,
due regard must be had to the health, comfort, age, mental and
physical condition of the pupils, and to the circumstances attending
each particular emergency, and the condition of the weather, the
infirmity of pupil, and the like, may require relaxation in their
6. Same.- Unreasonable Enforcement of Reasonable Rule.-A school regula-
tion must not only be reasonable in itself, but its enforcement must
also be reasonable under all the circumstances. The habit of locking
the doors of a school-room during the opening exercises is not an un-
reasonable enforcement, under ordinary circumstances, of a rule re-
quiring pupils to remain in the hall during that time; but if the
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