Meyer v. Morris. should be competent witnesses (Acts 1879, p. 245), in an action against the. representative of a deceased maker and a surviving maker of a promissory note, where each sets up a separate defence, it is discretionary with the trial court to permit the surviving maker to testify. From the Orange Circuit Court. M. B. Williams, for appellant. A. Noblitt, A. J. Simpson and W. Farrell, for appellee. Howk, J.—This was a suit by the appellee, as plaintiff, against the appellant and one Martin Meyer, as the administrator of the estate of John Meyer, deceased, as defendants. Appellee's complaint counted upon a promissory note for $500, dated June 11th, 1870, executed by the appellant and said John Meyer, in his lifetime, payable thirty-six months after date, to the order of Samuel Affolter, and by him endorsed to the appellee. The complaint alleged that the note was due and remained unpaid. The defendants severed in their defence, and filed separate answers. The appellant pleaded specially, that he executed the note in suit on Sunday, and on no other day or time, and had not since ratified the same in any way.. The defendant Martin Meyer pleaded the former recovery of the amount due on the note. The appellee replied to both of said answers, in denial of the matters alleged therein. The issues joined were tried by the court and a finding was made for the appellee as against the appellant, for the amount due on the note, and for the defendant Martin Meyer, as against the appellee. Over the appellant's motion for a new trial, and his exception saved, the court rendered judgment on its finding in favor of the appellee, and against the appellant, for the amount due on the note, and in favor of the defendant Martin Meyer, and against the appellee, for his costs. The decision of the circuit court in overruling his motion for a new trial is the only error assigned by the appellant in this court. In this motion the only cause assigned for such new trial was an alleged error of law occurring at the trial, and excepted to, in this, in sustaining appellee's objections to the evidence offered to be given by the appellant as a wit Meyer v. Morris. ness in his own behalf, and in excluding such evidence. The bill of exceptions shows, that when the appellant, on the issue joined between him and the appellee, offered himself as a witness to testify in his own behalf only, that the note in suit was executed by him on Sunday, and that he had not, at any time since, ratified said note, the appellee objected to the offered evidence on the ground of the appellant's incompetency as a witness in this case. This objection was sustained by the court, and the offered evidence of the appellant was excluded. Did the court err in this ruling? This is the only question presented for our decision by the record of this cause. The record shows that this case was tried and determined by the court below, at its October term, 1879. At that time the law in force in this State on the subject of the competency of witnesses, as applicable to this case, was the second proviso in section 1 of the act of March 15th, 1879, amendatory of section 2 of the act of March 11th, 1867, "defining who shall be competent witnesses," etc. This second proviso reads as follows: "Provided, also, That in all suits where an executor, administrator or guardian is a party, in a case where a judgment may be rendered either for or against the estate represented by such executor, administrator or guardian, neither party shall be allowed to testify as a witness, unless required by the opposite party or the court trying the cause, except," etc. Acts 1879, p. 245. We need not set out the exceptions to the proviso quoted, as it is clear that none of them are applicable to the case now before us. It can not be doubted that the competency of witnesses is a proper subject of legislation; and where, as in the proviso quoted, the General Assembly of this State have declared in plain, positive and unequivocal terms, that in all such suits as the one now before us," neither party shall be allowed to testify as a witness," it is the duty of the courts to enforce the law as it is written. In this case, an administrator was a party in the trial court, and, upon the issues joined, the court could not do otherwise than to render a judgment either for or against the Shoemaker v. Axtell. estate represented by such administrator, and it is not claimed that the appellant was required to testify as a witness, "by the opposite party or by the court trying the cause." It will be seen that this case comes squarely within the exact letter of the statute, and we can not say that the court erred in sustaining the objections to the competency of the appellant as a witness, or in excluding his offered evidence. The statute clothed the trial court with the right and power to require the appellant to testify as a witness in the case, and, if it had appeared to that court that such requirement would subserve the right and justice of the case, we do not doubt that the court would have required the appellant to testify. However this may have been, it is certain, we think, that the statute gave the court trying the cause a discretionary power in regard to the admission or exclusion of the appellant's offered evidence; and we can not say, from anything apparent in the record, that the court erred in the exercise of such discretionary power. Jenks v. Opp, 43 Ind. 108; Hoadley v. Hadley, 48 Ind. 452; Charles v. Malott, 65 Ind. 184; Carter v. Zemblin, 68 Ind. 436. For the reasons given, we are of the opinion that the court committed no error in overruling the appellant's motion for a new trial. The judgment is affirmed, at the appellant's costs. No. 7947. SHOEMAKER v. AXTELL. INJUNCTION.-Referee.-Appeal.-Injunction is not the proper remedy to prevent a referee appointed to take evidence from proceeding to the discharge of his duties as such. An appeal is necessary. SAME.-Legal Remedy.-Equitable Relief.-Where a party's legal remedy is perfect and complete, equitable relief will not be granted. The principle remains as it was when actions at law and suits in equity were distinct. VOL. 78.-36 Shoemaker v. Axtell. From the Monroe Circuit Court. J. W. Buskirk, H. C. Duncan and W. C. L. Taylor, for appellant. J. H. Louden and R. W. Miers, for appellee. WORDEN, J.-Complaint by the appellant against the appellee for an injunction. Demurrer to the complaint for want of sufficient facts sustained, and exception. Judgment for defendant. The complaint alleged, in substance, that in an action in the Monroe Circuit Court, by the appellant against one Milton J. Smith, to dissolve a partnership between the parties to that action, and to settle up the business thereof, the appellee, Axtell, was, by the court, appointed a referee "to take the evidence herein (therein) touching the dealings of said partners with said firm, and their respective rights in and to the firm assets; and also to audit and report a list of the indebtedness of said firm, and to make a report of the facts and of his finding herein to this court," etc. The complaint sought to enjoin the appellee from proceeding to the discharge of his duties as such referee, on the ground, substantially, that the court had no right to appoint a referee, the parties being entitled to a trial by jury, unless they consent to a trial otherwise. If there was any error in the appointment of the referee, or in referring any matters to him, this furnishes no ground for an injunction to restrain him from proceeding to act, for the reason that the appellant had a plain and ample remedy in that action. If in that action the court committed any error in reference to the appointment of the referee, an exception, and an appeal to this court, would have furnished a remedy for the error. "If the defendant at law has a good defence at law, and the remedy at law is as perfect and complete as the remedy in equity, the court will not restrain the action." Kerr Injunctions, 15, and notes. Lawson et al. v. DeBolt. The code has abolished the distinction between actions at law and suits in equity, but the principle thus announced is quite analogous to that involved here. The judgment below is affirmed, with costs. No. 8437. LAWSON ET AL. v. DEBOLT. 78 563 140 330 142 366 78 563 149 674 158 379 78 563 78 563 168 VOLUNTARY ASSIGNMENTS.-Sale of Debtor's Real Estate, a Judicial Sale.Vested Right of Debtor's Wife to Possession and Partition.--The sale of a debtor's real estate, under the act of March 5th, 1859, providing for voluntary assignments, 1 R. S. 1876, p. 142, is a judicial sale within the 168 meaning of the act of March 11th, 1875, 1 R. S. 1876, p. 554, vesting the inchoate interests of married women in the lands of their husbands, when their title has been divested, and entitles the wife to immediate possession and partition. SAME.-Jurisdiction.-Sale of Real Estate in Another County.-The circuit court of the county in which the debtor resides, and makes his assignment of his property, has jurisdiction to order and confirm the sale and conveyance of his real estate in another county. SAME.-Acts of February 1st and 26th, 1875.—Amendment.—The act of February 26th, 1875, 1 R. S. 1876, p. 145, undertaking to amend section 10 of the act of March 5th, 1859, after its effectual amendment by the act of February 1st, 1875, 1 R. S. 1876, p. 144, is unconstitutional and void. SAME.-Private Sale on Credit.-Deferred Payments.-Section 10, 1 R. S. 1876, p. 144, as amended, fully authorizes an order by the court for the sale of the debtor's real estate at private sale, on a credit not exceeding two years from the date of such sale. SAME.-Collateral Attack.-The orders of a circuit court having jurisdiction of an insolvent debtor's assignment, even though erroneous, are not open to collateral attack. From the Madison Circuit Court. J. W. Sansberry and M. A. Chipman, for appellants. ELLIOTT, C. J.-Malinda DeBolt, the plaintiff below and 129 135 |