Smith v. Fitzgerald.

substances from which beer has been made, or to flow or cause to run therein any of the washings of the floors of his said brewery. This order to be in force until the second day of the next term of the Marion Circuit Court, or until further order be taken in the premises."

This does not restrain the appellant from flowing the pure water used in his brewery, nor in any wise interfere in the proper pursuit of his business, but only restrains him from the abuses complained of.

The statute defines a nuisance to be "whatever is injurious to health, or indecent, or offensive to the senses, or an obstruction to the free use of property, so as essentially to interfere with the comfortable enjoyment of life or property." 2 G. & H., § 628, p. 288. We have carefully looked through the affidavits, and think that the case is fully made out, under the allegations in the complaint, and the requirements of the law.

It is claimed that the appellee does not make a case for relief, in view of the rule in equity, that a court of chancery will not interfere to prevent or remove a private nuisance, unless it has been erected to the annoyance of the right of another, long previously enjoyed; that it must be a case of strong and imperious necessity, or the right previously established at law, before the party is entitled to an injunction.

The statute provides, in cases like the one in judgment, for an action in favor of any person whose property is injuriously affected, or whose personal enjoyment is lessened by the nuisance, and, when a proper case is made, the nuisance may be enjoined or abated, and damages recovered. 2 G. & H., §§ 629, 630, p. 289.

The statute provides that restraining orders and injunctions may be granted, where it appears by the complaint that the plaintiff is entitled to the relief demanded, and that relief, or any part thereof, consists in restraining the commission or continuance of some act, the commission or

24 318 132 271

Raymond and Another v. Pritchard.

continuance of which, during the litigation, would produce great injury to the plaintiff. 2 G. & H., § 137, p. 132.

We think that the appellee has made a case within this statutory rule. The injunction does not deprive the appellant of the proper use of his brewery, nor interfere with his business, and is, therefore, not within the rule in equity cited above.

The order of the court below is affirmed, with costs, and the cause remanded to said court for further proceedings. L. Barbour, J. D. Howland and J. T. Jackson, for appellant.

RAYMOND and Another v. PRITCHARD.

HUSBAND AND WIFE.-TITLE BOND.-A sold certain real estate to B for $300, the price to be paid in labor. At the request of B, A executed to the wife of B a title bond, conditioned for the conveyance of the property to her, on payment of the price. Suit by the wife for a specific performance, alleging that about $250 of the purchase money had been paid by the labor of the husband, and offering to pay the residue in money, when the amount should be ascertained.

Held, that a husband may give real estate to his wife, whether his title be an absolute fee, or merely a right in equity, and the equitable estate of B having, in this case, passed by an executed gift to the wife, she was entitled to enforce a specific performance of the bond.

Held, also, that after having made and executed the gift, it was not in the power of the husband to revoke it.

Held, also, that the consideration of a contract need not have moved from the party in whose favor it was made, and who seeks to enforce it. PLEADING. An answer alleging generally that some other person than the plaintiff is the real party in interest, without stating the facts which support that conclusion, is bad.

APPEAL from the Wayne Circuit Court.

FRAZER, J.-Elizabeth Pritchard, the appellee, brought suit against Raymond and her own husband, alleging in her complaint that her husband refused to join with her

Raymond and Another v. Pritchard.

as plaintiff. It appeared further by the complaint, that in 1863, Raymond had executed and delivered to her a title bond for a lot in Cambridge City. It was recited in the condition of the bond that Raymond had sold to the husband, Isaac Pritchard, lot 21, east of the river, for $300, which sum Isaac was to pay in work, according to an agreement between him and the obligor; that Isaac desired the lot to be conveyed to his wife, Elizabeth, wherefore, upon payment of the $300, the obligor bound himself to make to Elizabeth a good title to the lot. It was alleged in the complaint that the agreement between the defendants was for carpenter work; that it was in their possession, and its terms were unknown to the plaintiff; that the husband, Isaac, had paid upon the lot about $250, and that the plaintiff was willing to pay the balance, in cash, whenever she could ascertain it; that both defendants declined to inform her of the amount, and that Raymond will not demand work to be done upon the contract.

The plaintiff prayed that the amount of the unpaid purchase money be ascertained, and that she be permitted to pay it into court, and that Raymond be compelled to convey the lot to her.

The first question presented here arises upon the overruling of separate demurrers by the defendants to the complaint, for the want of sufficient facts.

We suppose it will hardly be doubted that a husband may give real estate to his wife. This may be done, whether his title be an absolute fee, or merely a right in equity. If the facts recited in the condition of Raymond's bond be true, such a gift was, in this case, executed by the husband to the wife. Nothing remained to be done by the husband to vest in the wife whatever interest he had in the lot, by virtue of his contract of purchase with Raymond. Raymond's obligation to convey was transferred to the wife, and the instrument sued upon thereupon given by Raymond directly to the wife. We know of no reason, sufficient in law or equity, why

Raymond and Another v. Pritchard.

he should not be compelled to perform it. He has received a large part of the price, and he is now under no obligation to convey to the husband. Does equity say that he may keep the lot and the $250 also? The gift from the husband to the wife being executed, and the consideration for Raymond's contract being a valuable one, the authorities cited by the appellant, to the effect that an executory contract which is voluntary, or founded on the consideration of blood or marriage only, will not be enforced in equity, do not seem to us to be applicable to the question in hand. It is not sought to compel the husband to pay the unpaid purchase money. We think that the objection made to the complaint is not well taken. What has been said is applicable to several other rulings of the court below, and renders it unnecessary to extend this opinion by making a particular reference to them.

After having made and executed the gift, as we have seen, it was not in the power of the husband afterward to revoke it. The third paragraph of the answer, alleging such revocation, was therefore bad, and a demurrer was properly sustained to it.

It is well settled that the consideration for a contract need not have moved from the party to whom the contract is made, and who seeks to enforce it, and, therefore, demurrers were properly sustained to the second and fifth paragraphs of the answer, each of which alleged that no consideration was paid by the plaintiff for the lot.

The fourth paragraph of the answer averred "that the defendant Isaac Pritchard is the real party in interest, and not said plaintiff." To this a demurrer was sustained, and that ruling is assigned for error. This question has been decided against the sufficiency of the answer. It should have alleged facts which would show, as a matter of law, that Isaac Pritchard was the party who, alone, should have brought the suit. Garrison v. Clark, 11 Ind. 369; Swift v. Ellsworth, 10 Ind. 205; Lamson v. Falls, 6 id. 309.

The appellants urge that the finding of the court was

Donovan v. The Town of Huntington.

not sufficient to justify the judgment; but no such question was made below, and it is too late to present it for the first time in this court.

The judgment is affirmed, with costs.

J. B. Julian, G. A. Johnson and L. Develin, for appellants. N. S. Ballenger and N. H. Johnson, for appellee.

DONOVAN V. THE TOWN OF HUNTINGTON.

SUPREME COURT.-JURISDICTION.-In a prosecution instituted before the mayor of a town, for a violation of a town ordinance, a fine of $5 was assessed against the defendant, and on appeal to the Circuit Court a likefine was again assessed.

Held, that an appeal will not lie to the Supreme Court, the amount in controversy being less than $10.

APPEAL from the Huntington Circuit Court.

GREGORY, J.-A complaint was filed before the mayor of the town of Huntington, against the appellant, for a violation of an ordinance of the common council, in relation to opening and closing turn-bridges within the limits of the town.

The mayor assessed a fine of $5, and rendered judgment therefor, together with costs, from which the defendant appealed to the Circuit Court. The case was submitted to the court on an agreed statement of facts, upon which the court below found the defendant guilty, and assessed a like fine. Motion for a new trial overruled. A bill of exceptions, containing the evidence, is in the record. There are no briefs on either side. There is a petition for rehearing, in which it is suggested that the question is one of public interest, but we are in the dark as to what that question is. We think that the common council had the power to pass the ordinance in question as a police regulation, and that the same would apply to all turnVOL. XXIV.-21