June et al. v. Payne et al. swer, we need not inquire, since, upon the whole case, we regard the question of its sufficiency as of no practical importance at the present hearing. The evidence, supplemented by the answers to the special interrogatories, showed affirmatively that the plaintiffs were not injured by the overruling of the demurrer to that paragraph. It was thus made to appear that no such an appeal as that relied upon in defence by the first and fourth paragraphs of the answer, was in fact taken, and that the appeal which was afterwards consummated was an appeal in vacation without bond, and consequently without any stay of proceedings. Burk v. Howard, 15 Ind. 219. The important, and indeed controlling, questions at the trial were: First. Were the defendants guilty of unreasonable delay in offering to return or in returning the engine? Secondly. Could the return of the engine after the commencement of this action be taken into consideration in mitigation of the damages? It is true that, in cases of this kind, the property must be returned in as good order as when received under the bond, and within a reasonable time after a return has been awarded, and that too without demand for its return. Wells Replevin, sections 419 to 423, both inclusive. But what is a reasonable time must, to a very great extent, depend upon the circumstances attending each particular case. In the case before us, there was evidence tending to show what seemed to be an implied understanding that no measures would be taken to enforce the penalty of the bond, or to disturb the statu quo, until there was a final decision of this court upon the appeal taken in the replevin suit. There was also evidence tending to prove that from the first the plaintiffs did not desire a return of the engine, but preferred to abide the course of events in this court, and, if practicable, to eventually recover the value of the engine in money. This was in part well illustrated by the refusal of one of their attorneys to give any directions concerning the return June et al. . Payne et al. of the engine, only a few days before this action was commenced. Then a petition for a rehearing which had been filed in the cause was not overruled until the 12th day of December, 1883, seven days after the institution of this action and two days after the engine was returned to the sheriff. There was evidence, therefore, which justified the jury in coming to the apparent conclusion that there had been, under all the circumstances, no unreasonable delay in returning the engine. Having reached this conclusion, the jury were further justified in taking the return of the engine into consideration in mitigation of the damages. Schrader v. Wolflin, 21 Ind. 238; Story v. O'Dea, 23 Ind. 326; Wells Replevin, sections 457, 458. There was also evidence tending to prove that the engine was in as good condition when it was returned as it was when the bond in suit was executed. We have consequently no reason for concluding that the general verdict was not substantially right upon the evidence. The judgment is affirmed, with costs. ON PETITION FOR A REHEARING. NIBLACK, J.—After the verdict in this case was returned, the plaintiffs, in addition to their motion for a judgment for a larger sum than was assessed in their behalf by the jury upon the answers to special interrogatories, moved the court for judgment in their favor for the sum of $600, and the costs due on the original judgment, upon the pleadings, on the ground that, as no general denial was filed, all the facts necessary to entitle them to such a judgment were admitted at the trial, and that motion was also overruled. A rehearing is prayed for in this case for the alleged reason that the circuit court erred in overruling that motion, and that we omitted to rule upon that question at the former hearing. But the answers in this case, whether well pleaded or not, Jones et al. v. Ewing. presented issues which had to be tried and determined, and hence it can not be said that the cause was tried without an issue. As to what facts were admitted by the issues, as they were formed, were only questions of evidence at the trial. Besides the cause was apparently tried upon the theory that every material averment of the complaint was in issue. As illustrative of this theory of the trial, the first interrogatory submitted to the jury at the request of the plaintiffs was: “Did the defendants in this suit execute the bond sued on in this case as alleged in the plaintiffs' complaint?" Other interrogatories were submitted, upon the motion of the plaintiffs, inconsistent with the idea that no issue had been formed upon the complaint. Under such circumstances the plaintiffs could not be heard to complain, after the trial was concluded, that the cause had been tried without an issue, or that the material averments of the complaint stood as confessed at the trial. Where, without objection, a party alleging affirmative matter in his pleading goes to trial without requiring an issue to be formed upon such pleading, he can not afterwards ask judgment in his favor as by confession. Bass v. Smith, 61 Ind. 72; Lewis v. Bortsfield, 75 Ind. 390; Felger v. Etzell, 75 Ind. 417; Stribling v. Brougher, 79 Ind. 328. It is unnecessary to set out any more of the special interrogatories and answers of the jury, since there is nothing in any of the answers in question inconsistent with the facts as stated in the original opinion. The petition for a rehearing is overruled. Filed Sept. 25, 1886. No. 12,290. JONES ET AL. v. EWING. EQUITY.-What One Seeking Equitable Relief Must Show.-One who seeks equitable relief must show that he has done, or offered to do, in the premises all that equity requires of him. Jones et al. v. Ewing. MARRIED WOMAN.-Contract of Suretyship.-Husband and Wife.-- Purchase by, of Undivided Interest in Real Estate.-Mortgage.--Promissory Note.-With full knowledge of her financial resources, E. sold to a married woman a certain undivided part of real estate, receiving payment therefor in cash. At the same time he sold to her husband the remainder of such real estate, payment to be made in instalments, and executed a conveyance of the whole to the wife. The husband executed notes for the interest purchased by him, and, at E.'s request, his wife signed them as surety. To secure the payment of the notes a mortgage was executed on the entire property by both husband and wife. Held, that under section 5119, R. S. 1881, both the notes and the mortgage are void as to the wife, and that her interest in the real estate can not be affected thereby, but it is otherwise as to the husband's interest. From the Decatur Circuit Court. J. S. Scobey, for appellants. J. K. Ewing and C. Ewing, for appellee. Howk, J.-In this case, appellee Ewing sued the appellants Abigail C. and William L. Jones, husband and wife, in a complaint of one paragraph. It was alleged that the appellants, on the 24th day of October, 1881, by their nine promissory notes, became indebted to appellee in the aggregate sum of $1,000; that at that date, to secure the payment of such notes, the appellants executed a mortgage upon the north half of lot No. 103, in block 14, in the original plat of the town (now city) of Greensburgh, in Decatur county, which mortgage was on the same day duly recorded in the recorder's office of such county; that the first one of such notes to mature, for $150, had been fully paid, and the second and third notes to mature were then past due and, with the residue of such notes, were wholly unpaid; that the notes and mortgage were given for the unpaid balance of the purchase-money of the above described real estate; and that the mortgaged premises could not be sold in parcels without injury to the interests of the parties. Wherefore appellee demanded a personal judgment against the appellants for $1,200, and a decree of foreclosure against the mortgaged Jones et al. . Ewing. property, all without relief, etc., with costs and all other proper relief. He re para Appellants answered in four special or affirmative paragraphs, to the second of which appellee's demurrer, for the want of sufficient facts, was sustained by the court. plied by a general denial to the first, third and fourth graphs of answer. The issues joined were tried by the court, and a finding was made for appellee against the appellants for the amount due, and to become due, upon their promissory notes, and a personal judgment was rendered against the appellants, and in appellee's favor, for the amount found due with costs, and a decree was rendered for the sale of the mortgaged property and for the application of the proceeds of such sale, etc. Appellants' motion for a new trial having been overruled, and the separate motion of Abigail C. Jones for a new trial having been also overruled, they have appealed from such judgment and decree to this court. Errors have been assigned here by the appellants, which call in question (1) the overruling of their several motions for a new trial, and (2) the sustaining of appellee's demurrer to the second paragraph of the answer of appellant Abigail C. Jones. In the natural order, the questions presented by the alleged error of the court, in sustaining appellee's demurrer to the second paragraph of answer, must be first considered and decided. In such second paragraph of her separate answer, appellant Abigail C. Jones alleged that, on and prior to the 24th day of October, 1881, she being then the wife of her co-appellant, William L. Jones, then had and possessed in her own right and as her individual and separate estate, in cash, the sum of $700, which sum of money was her entire separate estate; that she was then and there desirous to invest the same in real estate, of a value which she could purchase and fully pay for with that sum of money; that at that time her husband, William L. Jones, with her and their children, resided in the city of Greensburgh, in Decatur |