The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1883-05-30
RECORD OF THE COURTS.
Proceedings in the Various Courts of
Record Yesterday.
FIJI Abstract of the Opinions Rendered
by the Judges of the Supreme Court
Work In the Local Courts.
Supreme Court-May 2S.
Observation-Disclosures.

AsSAULT-sELF-D EFENsE-PLEADING.
1O,O1s. John NJ. Morris VS.. Henry easel. Vigo
c. g.
Hammond. J.-Action by appellee for assault
and battery. 1t is claimed that the complaint
is bad for falling to allege that the injuries
wrongfully inflicted or that they were not the
result OF wrongful acts OF the appellee, The
doctrine or contributory negligence does not ap-
ply to "a wrong willfuliy committed. ~ IND,
4429 The seventh instruction stated that mere
words, however gross and abusive cannot justi-
fy an assault, but that il one provoked by in
the latter may not repel the assault. The latter
clause is incorrect. The assault, though thus
provoked is unlawful and whosOever is unlaw
fully assaulted may use sucn force as is reason
ably necessary to protect himself from harm;
but the instruction, though erroneous,
was harmless, for under the issue made
could not defeat the action on the ground of
self-defense. (R. s. 1881, 5 356; 1 Chltty's
Plead. 2. 535.l Besides, the evidence fails TO
show self-defense. Judgment affirmed.
GRAVEL RoADs-AUTHoRITy OF COUNTY BOARDS.
1O,o36. Robert Million VS.. Commissioners of
Carroll county. Carroll 9. G.
Howk. J.-Under the act of March 3, 1877,
authorizing county boards to construct gravel
roads, such boards are clothed with original
jurisdiction and required to exercise Judicial
powers in relation TO the construction of such
roads, The presentation of the petition calls
into exercise the jurisdiction of the board ana
requires 1t determine to the suficiency OF the
petition in form and substance, whether 1t Is
signed by the requisite number of land-hOlders,
and every other fact necessary to the granting
of the prayer of the petition. Nor it necessary
that the finding of these iursdietional facts
should be shown in express terms by the record.
IL Is enough IL 1t appears that reviewers and a
surveyor were appointed. t6D Ind, 445;
20 Id, 20; "a i'd, 400; 70 i'd, 2l ~ i'd, 499)
me proceedings in such cases, jurisdiction
having been acquired, are conclusive even
though erroneous, aud cannot be eOllaterally
attacked as In an action to enjOin the collection
OF assessments. Section Of the act empowers
the commissioners to make such changes in the
proposed i'm prOyements as the public necessity
REQUIRES. and if will a Dragumad n aDRanpa
OF any record of such finding, that the public
utliisy required the alteration made Under the
he is inJuriously affectH A6y the errors OF which
he complains. Judgment affirmed.
NEW TRIAL OF RIGHT-FoRM OF APPLICATION.
9,919 Physiological College VS.. William
Wilkinson ct al Hamilton c. c.
collars, J.-Appellees, as heirs of Margaret
Wilkinson, brought suit to set aside a deed of
certain land made by said Margaret TO appellant.
TO obtain possession OF the land and to have
their title thereto quieted. There was a Judgment
for the plaintiffs, and within the year the appel
liant applied for a new trial as of right, without
cause In determining the nature of action
the Judgment rendered is not alone to be looked
to. The case as made by the pleadings must de-
termine the character of the action. 1t is evil
dent from the pleadings that the title the real
estate was involved IN this action, and that APP
pelant was entitled to new trial of right,
90 Ind, 9S; 23 i'd, 474; Old. 459) The mo
tlon is not required by the statute to be in writ
ing. For the purpose of the motion the court
retains Jurisdiction of the subieet-matter, and
OF tne parties ana judicial knowledge or Its rec
ords during the year allowed for the making of
the motion, and the application may L,e made
either orally in open court, writing, stating
such facts will call the attention OF the court
to the case in which the new trial is asked. (23
Ind, 474) Judgment reversed.
CRIMINAL PRAcTIcE-JUDGE AND JURY.
1851, VIM. L. Nuzum VS.. The State. Henry
c. c..
Ntblack, J.-PrOseoution for selling liquor to a
minor. The court charged the jury that sit is
the duty of the court to instruct you in the law,
but his instructions are advisory only, and you
may disregard his instructions and determine
the law for yourselves" This instruction was
not erroneous 1913 Ind, 3d. SO i'd 234.) II is
complained that several ladies' belonging to a
temperance society were summoned as wit
nesses for the State for the purpose of unduly
influencing the jury by their presence Their
presence was a5 most q mere matter for COM
ment before the Jury, and cannot be presumed
to have exercised any undue influence on the
verdict. There was evidence tending to show
that the liquor sold was Intoxicating. Judgment
affirmed.