The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1883-06-21
Supreme COurt-June go.

Supreme C~ourt-June go.
Hon. William L. Niblack. Chief Justice.
WHAT Is A Observation-Disclosures.
IO,646. Jacob Nichols VS.. the State. Lake
O c.
Elliott, i'm an information for obstruct-
Ing a public highway it is lot necessary
to state the facts which constitute the
way q public one, and it is sufficient 70
give such "A description of 1t as WEI
identify and distinguish 1t from other highways
OF the county. (66 Ind, $685. A township
trustee cannot license the obstruction of a nigh
way. and his permission so to do will not protect
the offender from liability. Where one. pur..
pOsely obstructs a highway the question OF
road used by the public for more than twenty
years and recognized as a highway is q puOlc
highway, altbonghlt may not De OF great ieng 70
and may terminate on private property. The
character of the way is not deternS ned by us
length nor the place where 1t terminates. (S1
M, 1877: "a n. Y, $50; 81 Me-, AGO. Judgment
affirmed.
APPEALs-PRAcTICE.
lO,942. VIM. Compton VS.. The State. Morgan
{. C.
Elliott. J-Affdavits in support of a motion
for a new trial and for a change OF venue must
he Incorporated In the record by a bill OF eXcep-
tions or they cannot he regarded on appeal. (2o
Ind, 317) Judgment affirmed.
JUDGMENrs-wAIvER OF SERVICE OF PROCESS.
10, 3e2 Muncie National Bank VS.. Luther F.
Miller. Delaware {. 9.
Howk, jim 1876 appellant recovered a iudg-
ment against the appellee and others. There
was no service Of rmmons on appellee, but he
waived the same in writing on the complaint.
In 1881 he fled an action TO have the Judgment
declared void SIS against him. The question is
whether the curative act of March 2, 1877,
which provides for legalizing sales made by
sheriifs in suoh cases, is constitutional. Hold: it
was competent for the Legislature to have pro
vided by law that q written waiver by the de-
PENDANT of the issue ana service of summons,
and of his appearance to the action, indorsed on
the complaint, should be- equivalent to the
Rprvicn of DfOcaes in the action. and 1t was
equally competent to provide, after the rendition
of the judgment, that any judgment rendered
waiver, should be legal and valid. Cooley
. s.9 a Ii 81 da. 10 81 Ind % 25s; 40 3D.: g.; Sc Id,
SutiOnal and valid. Judgment reversed.
NEUTRALITY-SUSPICIOUS. TAKING.
hob. The State VS.. George Mingo. yigo
Hammond. Ut Is well settled that to constl-
fute y larcency there must be a teloniOus taking
of the property. When property lawfully in the
custody OF an employee or bailee is oriminally ap-
prODriated to the use of the latter the offense
NAV be enlightenment; but It cannot he larceny.
ia Ind, SO; 81 i'd, 1902; SO id, 229; 63 i'd. 223,
285) In this case the appellee was employed
by one Pugh to haul corn to Terre Haute and
sell IL, and after selling q load of corn sold also
the mules. which were hitehed to the wagon.
and absoonded with the proceeds. This act was
not a larceny. Judgment affirmed.
SALE OF EQUoR-MEDIoIEAL UsE-
lO.954. Chas. Hottendorf vs.. the State.
Wayne g. G.
Niblack, J.-Prosecution for selling intoxi-
eating liquor without a license. Appellant
was a physician and druggist, and sold the
liquor, as he claimed, for medicinal use. The evil
dence showed that the prosecuting witness
called for half a pint of whisky. Appellant
asked II he was sick, saving he would have to
medlcate the whisky. Witness then said he was
'eick, and appellant put some ginger into the
WHISKY. Witness said be had pain and cramps
in the stomach, and looked sick, and appellant
made no examination Of him. but thought the
ma1iCafad whisky wnuIH nIIra him Ia IN
whether a sale of whisky was made for a medi-
cinat purpose must be determined upon the
facts of each particular case, hut II ought to be
shown that the seller acted with reasonable eau
tton In making the sale. With all the facts and
be said that the jury were not justified in reach
ing n conclusion adverse to the innocence OF the
defendant. The means which appellant took to
ascertain the physical condition Of Stevens were
very slight, and not such as physicians usually
take before prescribing or administering usdi-
cine. Judgment affirmed.
DEED OF JoINTURE-PARoL REVOCATION.
1924. Aaron Craig vs.. Julia A. Craig. Han
Dock {. c,
mmo J.-Action by a~npellees as the
children of deceased by a CORNER marriage, for
the partition of real estate. Answer, that be
fore the marriage of said Moses and the appel
lee, Julia, they entered into a written ante-nup-
tial contract whereby said Julia was to have an
estate for life or until her marriage, In certain
land of said Moses upon his death, and the inter
est upon a loan of 81 900, W hich agreement was
kept and carried out by said Moses in his life
time. Reply, that during the lifetime OF said
Moses the parties to sand contract mutually re-
sounded The same, and agreed that the contract
should be cancelled and destroyed. The CON
tract of revocation. not being averred to have
been IN writing, must be presumed to have been
by paroi. The contract between Moses and ap-
peliee was s deed creating a jOinture within the
meaning of section 2, 800 of the Revised Statutes
of 1881. There was a stipulation in the deed
therein made for her in lieu Of
all claim to the other lands Of
her intended husband. Her signature
to the contract was q compliance with the stat
ute requiring her written assent. The subse-
qaent marriage made the contract binding upon
both parties, and conferred upon the appellee
only such rights in the husbands land as the
contract provided for. The right thus acquired
amounted to an interest in real estate OF which
she could not be Invested by a parOl contract
'unccnnected with circumstances making such
contract enforcible In equity. II does not APP
pear that in attempting to revoke the agreement
she parted with or acquired any right whereby,
II the revocation is disregarded, she cannot bs
placed in statn quo. The interest In real estate
which the appellee took under the contract
could net be disposed of or exchanged except by
deed of conveyance. Section 2,9l9, r. g., ap-
plies to an interest in real estate acquired by an
,ante-nuptial contract. Judgment reversed.
DIVORCE OBTAINED BY OBSERVATION-DISCLOSURES
IGENcE.
1887. Miraim H. Earle vs.. John G.. Earle.
Koeciusc0 c. @.
collars, faction by appellant to have a de-
cree of divorce vacated for fraud. The com
plant alleges that while a resident of Lake
county, ana while he had a suit pending there
for divorce, the appellee filed another petition
in KOseiuscO county, and by fraud pretended to
get personal service OF the summons anon ap-
ipeiiaut, but that in fact she had no notice of the
ipendency of the second suit until after the de-
Icree OF divorce was rendered, and was preparing
Ito resist the case in Lake county, which was
dismissed after the decree OF the second action.
The case ia one calling strongly for the Inter
ference Of the courts, but the uniform ruling Of
this court has been that a judgment OF divorce
cannot DO reviewed under the sections of the
nAla AIfhOElZtn0 Qnph TnElaWa in inc
actions. % Ind, 80; IL id, 663; Is i'd, 29i;
Is i'd, 278; 10 i'd, ass; % id, 81, 1881 But
Judgments obtained by fraud may be overthrOwn,
and this rule applies to divorce as well as to-
other actions. 81 Ind. sol; ~ ia, 374;
tBigelow ON Frauds 175; los Mass, 500; II Pa.
ST., 1913; SO i'd. 24l.J insofar as the case of Mo-
Anin " NnOnin ~ InA OAAA- aaan-L--L