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lady, possessed of several thousand dollars' | incapable of making a valid will, and, if worth of property. The will was made on there is unsoundness of mind, it is not necMay 9, 1884, and she died in January, 1885. essary for the contestant to show that such The plaintiff was her niece, Milton S. Dur- unsoundness had anything to do with the ham, her nephew. The three Pughs were her manner of disposing of the property," grand-nephews, the children of her niece. it would not be objectionable, as it would The testatrix, by her last will, gave to her in that case state an abstract principle nephew and niece and to her grand-nephews of law correctly. Unsoundness of mind haveach small legacies, and gave the balance of ing been proven, it would then be incumbent her estate, real and personal, to her nephew, on the defendant to show that the unsoundMilton S. Durham, for life, with remainder ness was of such a character as did not imto the Rose Orphan Home. There was a trial pair the mind to such an extent as to render by jury, resulting in a verdict and judgment the testatrix incapable of making a will, or for the plaintiff, setting aside the will and pro- that the defect in the mind in no way affectbate thereof. Motion for new trial by appel-ed the disposition of the property, or entered lants overruled, and exceptions. Several errors are assigned and discussed, but, owing to the conclusion we have arrived at as to some of the questions presented, it is unnecessary to consider the others.

into the making of the testament. What might be regarded as mental unsoundness may have been proven, and yet it may have been made to appear, from all the evidence in the case, that the mental unsoundness did not enter into the will. Higgins v. Carlton, 28 Md. 115; Hovey v. Chase, 52 Me. 304; Rogers v. Walker, 47 Amer. Dec. 470; Clark v. Fisher, 19 Amer. Dec. 402. By adding

We will first consider the question relating to instruction 6 given by the court, and which appellants contend is erroneous. The instruction is as follows: "(6) Furthermore, I instruct you that a person who is of unsound the words, "In such a case, the will is mind is incapable of making a valid will, and, invalid, whether it is shown that the unif there is unsoundness of mind, it is not nec- soundness had or had not affected the characessary for the contestant to show that such ter of the testament," it changed the scope unsoundness had anything to do with the and meaning of the instruction, and was in manner of disposing of the property. In effect telling the jury that, upon considering such a case the will is invalid, whether it is all the evidence, if they came to the conclushown that the unsoundness of mind had or sion there was any unsoundness of mind or had not affected the character of the testa- defect of any character in the mind of the ment." We do not think this instruction, testatrix, no difference to what extent such unexplained or modified by some other in- defect affects or impairs the mind, or whethstruction, states the law relating to the valid-er it in any way affected the disposition of ity of wills correctly, and we think it would the property devised, or the making of the tend to mislead the jury. It is contended on will, the will would be invalid; and this, too, the part of the appellee that our statute de- even though the evidence might affirmativefines who are of unsound mind as follows: ly establish the fact that such defect in no "The words persons of unsound mind,' as way entered into the making of the will or used in this act or any other statute of this disposition of the property, and that she had state, shall be taken to mean any idiot, non at the time sufficient mental capacity to make compos, lunatic, monomaniac, or distracted a valid will. In short, this charge recogperson; "" and counsel say that "the words nizes but two conditions of the human mind, 'unsoundness of mind,' as used in the sixth-one sound, and capable of doing all acts; instruction, are used in the sense of the stat- and the other unsound, and incapable of doute, and not in their broad and common sense, including every species of defectiveness and impairment of mind or memory, but applies only to such cases as are absolutely unsound, as idiots, non compos, lunatics, monomaniacs, and distracted persons;" and that the "meaning of the two statutes, construed together, would be that all persons, except minors, lunatics, idiots, non compos, monomaniacs, and distracted persons, may devise."

We do not agree with the theory of counsel as to the scope of this instruction. We think the words "usoundness of mind" are used in this instruction in their broadest sense, including every specie of defectiveness and impairment of the mind, and would be so construed by the jury; and the instruction, taken by itself, would not convey to the minds of the jury the true rule by which they should test the validity of the will. If the charge only included the words, "I instruct you that a person who is of unsound mind is

ing any act,-that a person is responsible for all his acts, or not responsible for any of his acts. This is an erroneous theory of the law. Den v. Gibbons, 51 Amer. Dec. 253; Clark v. Fisher, supra; Jackson v. King, 15 Amer. Dec. 354, and note 363. In the case of Lowder v. Lowder, 58 Ind. 538, it was held that, "in legal contemplation, one who has sufficient mind to know and understand the extent of his estate, the persons who would naturally be supposed to be the objects of his bounty, and who could keep these in mind long enough to and could form a rational judgment in relation to them, is a person of sound mind." It is evident that a person might be possessed of the requisite capacity to make a will, as held in Lowder v. Lowder, supra, and yet have some defect of the mind,—some delusion in relation to some subject entirely foreign to the execution of the will, the disposition of the property, the devisees, or those who are the natural ob

liable to mislead the jury, then the judgment must be reversed; and such is the fact in this case, and for this error the judgment must be reversed. The cause having to be reversed for the giving of instruction No. 15, it is unnecessary to consider the other questions presented, for they are not such as will be liable to arise on a retrial of the cause. Judgment reversed, with costs.

jects of his bounty. It is not necessary that | lates or applies, and if there is, and the inwe point out in this opinion what particular struction is erroneous, and such as would be defects or delusions there may be in a testator's mind, and yet he possess sufficient mental capacity to make a valid will. It is sufficient, if there may be any, to render the instruction under consideration erroneous, and it is manifest there are some. See Addington v. Wilson, 5 Ind. 137, 61 Amer. Dec. 81, and note 84; Kenworthy v. Williams, 5 Ind. 375, and authorities herein before cited. We think the instruction clearly erroneous, and ought not to have been given. It is contended that, even if erroneous, it was cured by other instructions given, which did correctly state the proper rule governing the mental capacity of the testatrix to make a valid will; but this we need not consider, for the reason that the judgment must be reversed on account of another erroneous instruction.

(120 Ind. 306)

CUNNINGHAM v. JACOBS. (Supreme Court of Indiana. Oct. 12, 1889.) ATTACHMENT BOND-ACTION-PRESUMPTION.

1. In an action on an attachment bond given in another state in a suit of the subject-matter of which the court of that state had jurisdiction, it will be presumed that the court had jurisdiction to issue the attachment, although no statute of that state authorizing attachment is pleaded. having jurisdiction of the subject-matter, is good 2. Such bond, having been taken by a court as a common-law bond, and it is not necessary to set out any statute under which it was taken, in order to maintain an action thereon.

Appeal from superior court, Marion county; N. B. TAYLOR, Judge.

McDonald, Butler & Mason, for appellant. H. J. Everett and Jas. B. Black, for appellee.

lars and

cents, lawful money of the United States, for the payment of which said sum, well and truly to be made, we bind ourselves, our heirs, executors, and administrators, jointly and severally by these presents." Sealed with our seals, and dated this 18th day of January, 1882. The condition of the above obligation is such that, whereas, the

So much of the fifteenth instruction given by the court as it is necessary to consider is as follows: "(15) In weighing the testimony of witnesses, the jury should consider the capacity of each witness to understand the facts about which he testifies, his opportunity of knowing the mental condition of the testatrix at the time the will was executed, his or her integrity, bias, behavior on the witness stand, and the entire deportment of COFFEY, J. This was an action instituted the witness. The opinion of a witness whose in the Marion superior court upon an attachattention has been particularly called to the ment bond executed in a suit pending in testatrix, who was familiarly acquainted Vermillion county, in the state of Illinois, with her, who had frequent opportunities of which bond is as follows: "Know all men observing her and the operations of her by these presents that we, James A. Cunmind, is entitled to greater weight than that ningham and Amos S. Williams, are held and of a witness, of equal sagacity, whose oppor- firmly bound unto Abraham Jacobs in the tunity of forming an opinion was more lim-penal sum of three hundred and twenty dolited. The facts upon which the opinions of the witnesses are based have been stated to you, and you should weigh the opinions thus expressed by the facts stated." Similar instructions to this have been repeatedly considered by this court, and held erroneous, on the ground that the court invaded the province of the jury by directing them that the testimony of one class of witnesses was en-above-bounden James A. Cunningham has titled to more weight than the testimony of others; and the cases relating thereto are collected in the case of Cline v. Lindsey, 110 Ind. 341, 11 N. E. Rep. 441. This instruction was clearly erroneous, but counsel contend that it was most favorable to the appellants, whose witnesses, or the greater number of them, resided nearer to the testatrix during her life-time, and were more intimate with her, than the witnesses of the appellee. It is not contended that all of the witnesses for the appellants resided nearer to, and were more intimate with, the testatrix than any of the witnesses for the appellee; and, even if this was the fact, we doubt if the instruction could be sustained on the ground that no harm was done the appellants. It is only the duty of the court, in case of an instruction in regard to the evidence, to look into the record, and determine whether there is any evidence to which the instruction re

on the day of the date hereof prayed an at-
tachment out of the circuit court of Vermil-
lion county, at the suit of himself against
the estate of the above-named Abraham Ja-
cobs, for the sum of one hundred and sixty-
five dollars and
cents, and the same
being about to be sued out of said court re-
turnable on the first Monday of February, A.
D. 1882, to the term of the said court then to
be holden: Now, if the said James A. Cun-
ningham shall prosecute his said suit with
effect, or, in case of failure therein, shall
well and truly pay and satisfy the said Abra-
ham Jacobs all such costs in said suit and
such damages as shall be awarded against the
said James A. Cunningham, his heirs, exec-
utors, or administrators, in any suit or suits
which may hereafter be brought for wrong-
fully suing out the said attachment, then
the above obligation to be void; otherwise to
remain in full force and effect. [Signed]

JAMES A. CUNNINGHAM. [Seal.] A. S. tachment proceedings are not only utterly deWILLIAMS. [Seal.]" It is averred as a void of any of the features of the common breach of the above bond that the sheriff of law, but they are so far in derogation of comVermillion county, in the state of Illinois, by mon right that an appeal to this remedy has virtue of the writ of attachment issued in never been specially favored by the courts. said proceeding, seized the goods and chat- Attachment amounts to the involuntary distels of the appellee of the value of $8,000; possession of the owner prior to any adjudithat the appellant, Cunningham, did not pros-cation to determine the rights of the parties. ecute his said suit with effect, but that such To some extent it is equivalent to execution proceedings were thereupon had in that suit in advance of trial and judgment. 1 Wade, that it was considered and adjudged by the Attachm. § 2. Ordinarily attachment prosaid court and a jury that the appellee was ceedings are commenced in aid of an action not indebted to the appellant in any sum already pending or at the time instituted, whatever, and that appellee recover of the the object being to make the property availaappellant his costs therein; that by the wrong-ble for the payment of any judgment the ful suing out of said writ of attachment ap- plaintiff may recover in the main action by pellee was obliged to and did expend large seizing the property of the defendant and sums of money in and about the defense of holding it until the rendition of such judgthe said suit, and was thereby deprived of the ment. We may assume that such was the use and benefit of his said property for one object sought to be attained in the suit in year, and was greatly injured in his credit at which the bond now involved was executed. said county and elsewhere, and was wholly deprived and prevented from pursuing his business, and his said property so detained was greatly injured and deteriorated in value, broken, lost, and destroyed; that he lost three months' time in and about the defense of said suit, all to his damage in the sum of $500, which is due and unpaid. A demurrer to the complaint for want of sufficient facts to constitute a cause of action was overruled, and the appellant excepted. Upon a trial of the cause the appellee recovered a judgment.

The question therefore arises, did the circuit court of Vermillion county, in the state of Illinois, have jurisdiction to issue the writ of attachment, and require the bond which is the foundation of this action? In the case of Board v. Markle, 46 Ind. 96, it is said: "Any movement of a court is necessarily jurisdiction. If the law confers the power to render a judgment or decree then the court has jurisdiction. What shall be adjudged or decreed between the parties, and with which is the right of the case, is judicial action by hearing and determining it. * * * Where a court has jurisdiction it has a right to decide every question which occurs in the cause, and, whether the decision be correct or not, its judgment, until reversed, is regarded as binding in every other court. Courts are es

The only question presented for our consideration relates to the sufficiency of the complaint as a cause of action. It is contended by the appellant that an attachment proceeding was unknown to the common law, and that to make the complaint good the stat-tablished for the purpose of administering ute of the state of Illinois, if any exists, justice, and it is their duty, so far as they should have been set out with the complaint, can discover the truth, to decide right. But to the end that the courts here might deter- the power to decide at all necessarily carries 'mine that such a proceeding was authorized with it the power to decide wrong as well as by the laws of that state. In the absence of right. In the present imperfect state of huany showing to the contrary, the presump- man knowledge, a power to hear and detertion is that the common law prevails in the mine necessarily carries with it a power which state of Illinois. Robards v. Marley, 80 Ind. makes the determination obligatory, without 185; Rogers v. Zook, 86 Ind. 237; Supreme any reference to the question whether it was Council v. Garrigus, 104 Ind. 133, 3 N. E. right or wrong. If this were not so, the judgRep. 818. With this presumption before us ment or determination of any court would be we must presume, also, that the circuit court of no particular value. It might be attacked of Vermillion county, in the state of Illinois, or avoided at pleasure, upon the ground that is a common-law court with all the powers, the court or judge had committed an error." duties, and jurisdiction attaching to such a Assuming that the circuit court of Vermiltribunal. Such courts have jurisdiction to lion county had jurisdiction of the main achear and determine actions for the recovery tion, let us suppose that the appellant in this of debts, and it affirmatively appears from case applied for a writ of attachment upon the complaint before us that this was an ac- the ground that the Roman law was in force tion of that kind. The court therefore had in the state of Illinois, and made a showing jurisdiction of the subject-matter of the ac- which would have entitled him to the writ tion. Had no attachment issued, no ques-under that law. If the court had decided tion of the power of the court to act would that the Roman law was not in force in that arise; but, as an attachment proceeding was state, and had refused the writ, presuming, instituted in connection with the main ac- as we do, that the common law prevailed tion, it becomes necessary to inquire into the there, we would have said that its decision nature and origin of the writ of attachment. was right. But conceding that it had the The writ of attachment in this country is es- right to so decide carries with it the concessentially the creature of statute law. At-sion that it had the right to decide the other

way. So, again, by the customs of London, | law bond? Drake on Attachments, § 151, the creditor has, for time immemorial, pos- says: "Where a bond is executed without sessed the right to sue out a writ of attach-being required or authorized by any statute, ment against his debtor's property in certain the makers cannot defend against it on that cases. Suppose that the appellant had ap- ground. It is good as a common-law bond. plied for an attachment against the property This was ruled in an action on a bond given of the appellee upon the ground that the cus- by a plaintiff on commencing a suit by attoms of London constituted a part of the tachment in a circuit court of the United common law, and had made a showing which States, and the bond was made to the United would have entitled him to the writ under States. No law of the United States requirsuch custom. If the court had decided that ing it, and not being executed in connection such custom constituted no part of the com- with any business of, or any duty of the obmon law, and had refused the writ, we would ligors to, the government, it was contended have held, doubtless, that such decision was that it could not be enforced, but the court correct. But if the court decided that such determined otherwise. So, if the law require custom did constitute a part of the common the bond to be approved by the court, but it law, and that it was in force in the state of be approved by a judge in vacation, it is not, Illinois, by what rule can it be said that we therefore, void, but is good as a common-law have the right to call in question the correct-bond." That such a bond is good as a comness of that ruling, and now relieve the par- mon-law bond, see Turner v. Armstrong, 9 ties from the consequences of the error? It Ill. App. 24; Sheppard v. Collins, 12 Iowa, is always to be presumed that everything was 570; Barnes v. Webster, 16 Mo. 258; Williams rightly done in court, unless the contrary ex-v. Coleman, 49 Mo. 325. This case is to be pressly appears by the record; and, as the distinguished from the case of Caffrey v. contrary is not shown, we must presume, we Dudgeon, 38 Ind. 512, and State v. Younts, think, that the circuit court of Vermillion 89 Ind. 313, and kindred cases. In the case county in the state of Illinois did not exceed of Caffrey v. Dudgeon, the justice who took its jurisdiction. the replevin bond had no jurisdiction of the subject-matter of the action, and hence all his acts in the case were void; while in the case of State v. Younts the sale by the commissioner was void, and did not divert the title of the relators, and it would have been manifestly unjust to permit the relators to recover the purchase price of the land and retain the title. Furthermore, there was no consideration for the bond in that case, and so it could not be enforced as a common-law

In addition to what we have said upon the subject of jurisdiction to issue the writ of attachment, it is of importance that we should not omit the fact that it appears by the complaint in this action that the appellee appeared to the action in the state of Illinois, and upon a trial defeated the appellant. Treating the subject of jurisdiction, Mr. Drake, in his work on Attachment, & 87, says: "In this connection, therefore, importance attaches to the point whether the defendant was person-bond. Such is not the case as to the bond ally served with process in the action. If he involved in this case. As we have seen, it was, or if he appeared to the action without was taken by a court having jurisdiction of service, the cause becomes mainly a suit in the subject-matter of the action, and by personam, with the added incident that the means of such bond the appellant obtained property attached remains liable, under the the writ of attachment which he sought, uncontrol of the court, to answer to such de- der which the appellee was deprived of the mand as may be established against him by possession of his property. In such case the the final judgment of the court. In such party executing the bond is estopped from case, if he make no question of the right of denying its validity. Harbaugh v. Albertthe court to exercise jurisdiction over him by son, 102 Ind. 69, 1 N. E. Rep. 298. In our attachment, the proceedings, however de- opinion, the bond now under consideration fective the affidavit, will be valid, and the is a good common-law bond. Such being our rights acquired through them will not depend conclusion, it follows that it was unneceson the attachment for their validity, but up- sary to set out any statute under which it on the judgment, which, in such case, cannot was taken in order to maintain an action be impeached in any collateral proceeding." thereon. It is further contended that resort We are of the opinion, therefore, that we must be had to the statutes of the state of must presume that the circuit court of Ver- Illinois to determine what amounts to a million county, Ill., had jurisdiction in the breach of the bond, and to determine the proceedings in which the bond in suit was measure of damages thereunder, and that, as given. We are not at liberty, however, to this is true, no action can, in any event, be presume the existence of a statute under maintained thereon, except in that state. As which such bond was executed. If any such we have reached the conclusion that this is a statute existed it was the duty of the party good common-law bond, it is unnecessary desiring to avail himself of its provision to that we should decide what would have been bring it before the court in some legitimate the 'result had it been shown that it was taken mode. As this has not been done, the bond under the provisions of some statute. As a in suit must be treated as having been exe- common-law bond the action upon it is govcuted without any statutory authority. The erned by the rules applicable to actions on question, therefore, is, is it good as a common-ordinary contracts. Suit upon attachment v.22N.E.no.16-22

(120 Ind. 201)

SAGE v. STATE. 1

(Supreme Court of Indiana. Oct. 15, 1889.) ACCESSORY-INDICTMENT.

*

*

Under Rev. St. Ind. 1881, § 1734, which provides that an indictment for being an accessory before the fact shall state, "and the said * was accessory before the fact to the said felony," an indictment which charges the defendant with being an accessory to the crime of murder, without containing the above statement, is insufficient even after verdict.

Appeal from circuit court, Grant county; R. T. ST. JOHN, Judge.

bonds generally is an action of debt, in which | utes are supposed to express the will of the it is necessary to aver in the complaint that sovereign power of the state, and it is the the damages are due and remain unpaid. plain duty of courts to give effect to the legDrake, Attachm. § 167; Michael v. Thomas, islative will without scrutinizing the reasons 27 Ind. 501; Uhrig v. Sinex, 32 Ind. 493. which may have induced the enactment of an In our opinion the complaint in this case unambiguous statute. Interpretation and states a good cause of action, and the court construction are allowable when different below did not err in overruling a demurrer meanings may be attributed to the language thereto. Judgment affirmed. employed, but when the language used in expressing the legislative will is not only plain, but admits of but one meaning, the task of interpretation can hardly be said to arise. End. Interp. St. § 4. Courts may construe and interpret where construction and interpretation are necessary in order to discover the true meaning of a statute; but when the meaning is discovered it is no more the province of the court to set aside a statute constitutionally enacted than it is the right of any other citizen to do so. Here is an express statutory requirement directing in terms that not only the specific acts from which the inference might be drawn that the accused was an accessory before the fact to the felony alleged to have been committed should be set out in the indictment, but that the general statement that he "was accessory before the MITCHELL, J. The appellant was indicted fact to said felony," or words of similar imand convicted as an accessory before the fact port, should be inserted. Under this statute, to the crime of murder. The question for "not only must all the circumstances essenconsideration is as to the sufficiency of the tial to the offense be averred, but these averindictment, after verdict, to sustain a judgments must be so shaped as to include the lement as against a motion in arrest. Con- gal characteristics of the offense." cerning accessories we find the following in the Code of Criminal Procedure: "Whenever the person accused is to be charged as an accessory before the fact, the following (or words of similar import) should be inserted after the statement of the offense committed by the principal: And the said A. B. was accessory before the fact to the said felony.' [Here set forth how he aided and abetted the principal.]" Section 1734, Rev. St. 1881. With the exception that the above section of the statute was entirely disregarded, the indictment is unquestionably sufficient, and conforms with the approved precedents. Ulmer v. State, 14 Ind. 52.

Wm. H. Carroll and Steele & Kersey, for appellant. S. W. Cantwell, Pros. Atty., and Louis T. Michener, Atty. Gen., for the State.

Whart.

Crim. Pl. § 153. These words characterize the offense in general terms, and are made by statute an essential element in the charge of being accessory to a felony. An indictment which wholly disregards this statutory requirement does not state facts sufficient to charge a public offense. "Where a statute prescribes or implies the form of the indictment it is usually sufficient to describe the offense in the words of the statute, and for this purpose it is essential that these words should be used. In such case the defendant must be specially brought within all the material words of the statute, and nothing can be taken by intendment." Id. § 220. Where Is the statute mandatory, or may its pro- the defect in an indictment is the omission to visions be dispensed with by construction? state matter expressly required by statute, the The crime of murder is defined in section 1904, omission will not be cured by verdict. BurRev. St. 1881; and section 1788, Id., declares roughs v. State, 72 Ind. 334; State v. Gove, that "every person who shall aid or abet in 34 N. H. 510. Justice must use right means the commission of any felony, or who shall in attaining its ends, and its ends, when atcounsel, encourage, hire, command, or other-tained, must be such as the law allows. wise procure such felony to be committed, shall be deemed an accessory before the fact." These two sections must be looked to in order to ascertain what shall constitute a person an accessory before the fact to the crime of murder. Section 1734 declares that, in charging an accused with being an accessory before the fact, certain specified words, or words of similar import, shall be inserted in the indictment after the statement of the offense committed by the principal. All of these sections are, therefore, to be regarded in determining whether or not the indictment is sufficient. State v. Lay, 93 Ind. 341. StatRehearing denied. See 26 N. E. 667.

"Human laws are meant merely to conserve
the outward order of society, and a part of
this order, not less essential than any other
part, consists in pursuing the exact methods
which the law has laid down in bringing
criminals to justice." 1 Bish. Crim. Proc.
§§ 89, 93.
89, 93. As was aptly said in Shepherd v.
State, 54 Ind. 25: "Here the indictment is
bad for non-conformity to the requirements
of the statute. And if this court, for the sake
of sustaining the conviction in this case, con-
strues away some of the requirements of the
statute, the true test by which to determine
the validity of an indictment is destroyed,

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