Egolf v. Bryant et al.

4. The court erred in permitting defendant to give in evidence improper, illegal and incompetent testimony;" and,

5. "The court erred in giving erroneous instructions to the jury."

We need hardly say that the last three of these causes for a new trial were each too vague, indefinite and uncertain to demand any attention from the circuit court, or to present any question for decision by this court. This rule of practice, which requires that causes for a new trial shall be assigned with clearness, certainty, precision and particularity, was long since established, and is strictly adhered to, in this court. Buskirk Practice, p. 244, et seq., and authorities cited; Grant v. Westfall, 57 Ind. 121.

The other two causes for a new trial, the first and second, present for decision the simple question, whether or not the verdict of the jury, in this case, was sustained by sufficient legal evidence.

We have carefully examined and considered the evidence in the record, and it seems to us, that this evidence fairly sustains the verdict of the jury.

In our opinion, no error was committed by the circuit court, in overruling the appellant's motion for a new trial.

The judgment is affirmed, at the appellant's costs.

EGOLF V. BRYANT ET AL.

PRACTICE.-Dismissal of Complaint does not Carry Counter-Claim with it.— The dismissal of the complaint in an action, on the motion of the plaintiff, can not, over the objection of the defendant, carry with it a counter-claim filed by the latter.

Egolf v. Bryant et al.

SAME.-Exception.-Bill of Exceptions.-A bill of exceptions is not necessary to reserve an exception to the dismissal of a counter-claim. SAME. Complaint for Partition.-Counter-Claim to Foreclose Mortgage.A cross complaint, so called, for the foreclosure of a mortgage on real estate, filed by a defendant in an action for the partition of such real estate, is properly a counter-claim.

From the Noble Circuit Court.

F. Prickett, for appellant.

PERKINS, J.-Suit by Warren C. Bryant and others for partition of a certain parcel of land.

Adam Egolf, who claimed an interest in a portion of the land, was made a defendant. He filed what he denominated a cross complaint, in which he alleged, that, to save the land for all the owners, by preventing its sale upon a foreclosure of a mortgage existing upon the whole of the land, he paid said mortgage, and now asked that his claim be adjusted and enforced, etc. Afterward the following entry appears of record:

"Warren C. Bryant et al. v. Adam Egolf. Complaint for partition.

"Now come the said plaintiffs, by Thomas M. Eells, their attorney, and comes also the said defendant, by Tousley & Prickett, his attorneys, and thereupon, on motion of plaintiffs, the petition of plaintiffs is dismissed at plaintiffs' costs. And it is ordered and adjudged by the court that the cross complaint of the defendant follow the complaint, and that said cross complaint be, and hereby is, dismissed therewith, by virtue of plaintiffs' said dismissal; to which order and decision of the court in so dismissing his cross complaint the defendant objects and excepts, and prays an appeal to the Supreme Court; which is granted, on the filing by said defendant of an appeal bond, in the penal sum of one hundred dollars, within sixty days, with John Rivir as surety, which bond is by the court approved It is therefore considered by the court that the said defend

The Board of Trustees of the LaGrange Collegiate Institute v. Anderson.

ant recover of said plaintiffs his costs and charges herein, taxed at dollars and cents."

No bill of exceptions was filed. We think, under section 559 of the code, a bill of exceptions was not necessary to reserve the exception in this case.

The pleading denominated a cross complaint was clearly a counter-claim. Tabor v. Mackkee, 58 Ind. 290, and cases cited; Harness v. Harness, ante, p. 1.

The court erred in holding that the dismissal of the complaint carried with it, out of court, the counter-claim. That part of the judgment is reversed, etc.

THE BOARD OF TRUSTEES OF THE LAGRANGE COLLEGIATE INSTITUTE. ANDERSON.

PROMISSORY NOTE.-College Endowment Fund.-Answer.-Infancy.-Fraud. -Evidence. In an action against the maker, on a promissory note executed to the trustees of a college, for the purpose of an endowment fund, and payable on condition that a specified sum should be secured for that purpose prior to a date named, wherein the complaint duly alleged that such sum had been fully secured within the time limited, the defendant answered alleging that a portion of such sum so secured consisted of promissory notes executed by infants, as the plaintiff well knew, with intent to defraud the defendant.

Held, on demurrer, that the answer is insufficient.

Held, also, that the facts alleged in such answer would not be admissible in evidence under the general denial.

Held, also, that the plaintiff, by producing promissory notes or other securities of apparently equal rank and value, to the amount specified, would thereby make out a prima facie case.

From the LaGrange Circuit Court.

A. A. Chapin, for appellant.

J. D. Ferrall, A. Ellison and J. S. Drake, for appellee.

The Board of Trustees of the LaGrange Collegiate Institute v. Anderson.

NIBLACK, J.-The board of Trustees of the Lagrange Collegiate Institute sued William Anderson on a promissory note, as follows:

"$50.00.

"Three years after date, I promise to pay to the trustees of the LaGrange Collegiate Institute the sum of fifty dollars, with interest from date annually, for the purpose of a permanent endowment fund, provided ten thousand dollars shall be secured for the purpose previous to August 15th, 1867. WM. ANDERSON.

"GREENFIELD, IND., April 19th, 1866."

The complaint averred that the sum of ten thousand dollars was secured as a permanent endowment fund before the 15th day of August, 1867, and that the note remained due and unpaid.

The defendant answered in six paragraphs.

The first, the general denial, and the rest setting up special matters in defence.

The plaintiff demurred to each paragraph of the answer except the first, but its demurrer was overruled.

The plaintiff then replied to the special paragraphs of the answer, and after some further proceedings, which need not be here noticed, the cause was submitted to a jury for trial.

A verdict was returned for the defendant, and judgment was rendered in favor of the defendent upon the verdict.

Counsel for the appellant brings specially to our attention the question of the sufficiency of the fifth paragraph of the answer.

That paragraph was as follows:

"For a fifth defence to said action, the defendant says, that the whole amount secured to said fund prior to the 15th day of August, 1867, was ten thousand dollars; that, of that ten thousand dollars, one thousand dollars was se

The Board of Trustees of the LaGrange Collegiate Institute v. Anderson.

cured by promissory notes executed by persons each of whom was under twenty-one years of age at the time said notes were executed, which facts the plaintiff at the time knew, and the plaintiff accepted said notes of said minors with the fraudulent purpose of raising said fund up to ten thousand dollars, knowing that the said minors were not bound to pay any portion of said notes; that the following are the names of said minors, so far as defendant is informed, to wit, George C. Searing and George A. McKinlay."

We are of the opinion, that, under the complaint and the proviso contained in the note sued on, it was sufficient for the plaintiff to produce in evidence notes, or other securities of equal apparent rank and value, similar to the note in suit, which had been obtained previous to, and were under the control of the plaintiff as an endowment fund on, the 15th day of August, 1867, amounting in the aggregate, with the note in suit, to $10,000.00, in order to make out a prima facie case under the averment that $10,000.00 had been secured as required by said proviso.

We are also of the opinion, that any special defence, intended as an attack upon the validity of any such notes or other securities, ought to have alleged facts showing that such notes, or other securities, were invalid when the time limited for taking them expired, that is, on the 15th day of August, 1867. By the terms of the note sued upon, the plaintiff had until that time in which to arrange and complete its measures for the securing of the sum required by the proviso.

The note of a minor is voidable only, and not void. It might have been, as charged, that some of the notes, when executed, were voidable by reason of the infancy of the makers, and yet, by the 15th day of August, 1867, had become valid and available securities by some subsequent arrangement between the parties.

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