The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1883-06-09
RECORD OF THE COURTS.
Proceedings in the Various Courts of
Record Yesterday.
Full Abstract of the Opinions Rendered
by the Judges of the Supreme Court
Work in the Local Courts.


HIGHwAYs-CHANGE FROM PUBLIC TO TOLL
ROAD.
IO,O61 Samuel Carter vs.. Samuel Clarke.
Fountain c. G.
Elliott, J.-The grant by county commissioners
TO q private gravel road company of the right to
occupy and use pubic highway for gravel
road cenrers authority to dig into the surface OF
the ground The grant confers the easement
owned by the county, and this embraces the
right to improve and use the granted roadway
for highway purposes. In granting principal
power all incidental ones are impliedly con
Tered, and such a grant necessarily implies the
right to construct gravel road and to do all
reasonable things necessary to efectuate that
object No additional burden is imposed by
changing public highway into toll road The
change Ia not iii the character of the servltude,
hut in the mode of sustaining the highway 10
Barb. 459; 81 N. Y; 81; Ohio St, 419l Jueg
ment affirmed.
IMPERFECT NEUTRALITY-SUSPICIOUS..
10.92s. The State vs.. Tilman ]. We'll. Mont
gOmery G. @.
Howk ia motion to dismiss the appeal is
not the proper method of disposlng of an imper
feet record. but application for a writ of GER
ti0rari. Where an information or indictment
charges two more substantive nffsnses in
single count, it is bad for dupicity, aud a mo-
non to quash will be sustained. In this cas- the
information charged in one count the otfenses
defined in sections 2,066 and ZOOS, X. s. Judg-
ment affirmed.
MISUNDERSTANDING APPROPRIATIONS.
l0.343. Arthur Norton VS.. William j. Miner,
treasurer. Grant c. G.
Bicknell, C.-Complaint by appellant to enioin
the collection of a levied in aid of a railroad
The tax was voted by the township in 1873, and
the first levy of one-haf was made in june
1873. The second was made in June 1881. BY
section IL of the act of May IL, 1869, the county
board was authorized and required TO levy one
half the tax at their June session, 1879, and the
residue at the June session i'll 1880. But an act
approved March 7, 1877, provides that any COM
paBy organized shall have FIVE years from the
passage OF the act within which to complete lite
road, and when completed shall be entitled
10 the appropriation therefor made. The order
OF the board shows the existence of the facts
oil the railroad
company the right to receive the remainder OF
the appropriation. go Ind, 469) If the com
pAny had the right to receive the money 1t was
the duty of the board to make the levy and order
the tax placed on the duplicate. Judgment af-
hrned.
HUSBAND AND wIFE-FRAUDULENT TRANSFER.
l0,16S. First National Bank, ETC.. vs.. Anna
Garter. Fountain c. c..
Black, C.-Samuel Carter being the owner Of
property worth sos, 900, and indebted to the
amount OF $37 600. had an execution tor 81 1862
levied on part of his land worth $500. He
procured the levy to be transferred to the home
stead worth $50, 900, in order to cause the lat
ter tract to be conveyed to his wife through "A
sberifs SALE His wfes uncle bid In the prop
erty at the sale for $4,000, paid the amount
due on the execution, and took receipt from
Carter for the balance. The certificate
transferred to Mrs. Carter, who afterward OBJ
Judgment against Carter who was insolvent,
and this action was to subject the property
so conveyed to Mrs. Carter TO sale. 1t was
fonnd that Lucas furnished the money which he
paid for the land without expectation that 1t
would be repaid, under agreement with Car
ter that Lucas should buy in the land and give
ii to his niece. Held: Lucas paid valuable con-
sideration for the land upon condition, which
he had right to exact, that his niece should
have the property 1t is not found that either
Lucas or Mrs. Carter acted in the matter with
any fraudulent intent. When a conveyance ia
assaulted as fraudulent by creditors OF the
grantor, and the grantee is not volunteer, both
the fraudulent intent OF the grantor and notice
thereof to the grantee must be shown. The bur
den of showing this was on appellant, and the
absence OF finding of such fact was in effect
finding against 1t. (73 Ind, 90, no. 76 i'd, 1919
Judgment affirmed
MISUNDERSTANDING
10,254 James Wales VS.. Levin R. Miner.
Franklin, C.-Where a complaint for seduction
AYERS that the defendant persuaded, Sc
duced and debauched the plaintiffs wife, 1t
is not necessary to aver the means used to ae-
c0mpish the seduction, nor need it be alleged
that the defendant knew the woman was the
plaintiffs wife. He is bound to take notice Of
that fact. The fact that a divorce had been
granted the plaintiff before the suit is no bar to
the action. The evidence is sufficient to sustain
the verdict. and it cannot be said that ST 900 is
excessive damages in such a case. There was
no error i'll the Instructions given. Judgment
affirmed.
FORGED ACKNOWLEDGEMENTS LIEN.
1916 Citizens State Bank VS.. Lydia Adams.
Henry c. c.
Bcknell, C.-suit by appellant as assignee OF
note aud MORTGAGE made by Ira B. Adams to
Lydia Adams. Appellee answered that she sold
the land described in the mortgage to Ira Adams,
taking his notes therefor, which remain unpaid;
that the notes and mortgage described in the
complaint were never delivered to her, nor did
she indorse them or even know of their
existence. In cross-oompla1nt she averred
the insolvency of Adams, and
asked the enforcement of her vendors
lien on the land A jury found that the indorse-
neRt5 of appellee were forged; they therefore
passed no right as against her, even to a bona
fide holder, for value. Il Younge & Collier, 394;
3 SCOTT. 60Sl AS the appellee was seeking to
enforce her vendors lien, there was no need to
dls copies of the notes executed to her by
Adams with her pleading. (71 Ind, 271; &c i'd,
205) In such a case, where there is no proof
that the defendant has no other property sub
ject to execution, the Land will not be ordered
sold In the first instance, but only after the other
property of the defendant. if any, is exhausted.
az Ind, 40; IL i'd, HI; 81 i'd, 1922 Judg-
ment affirmed.
The following cases were also decided
Jesse M. Rooms VS. First National Bank. Clark
c. G. Judgment modified. Morris, G.
Peter La PldnJe jerome Con very. Knox
c. G. Reversed. Black, &.
Edward McDermott VS.. the State. Floyd c. G.
Affirmed. collars j.
John V. Ashley vs. AdOlphus Capron. Mar
shall c. C. Affirmed Bicknell, C.
Superior Court.
Room No. 1-Hon, Napoleon b. Taylor. Judge.
Johnston g. Erwin VS. City of indianapolis;
damages On trial by jury.
Room No 2-Hon. Daniel W. Howe, Judge.
Eagle Machine Works vs.. william r. Car
mkel ct al; foreclosure of chattel mortgage.
Judgment against defendants for $457O4.
Jacob Wagner vs. Isaac Phillips Motion for
new trial overruled.
Daniel H. Wiles ct al. VS.. Willard W. Miles; suit