The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1883-07-03
SUPREME COURT RECORD.


oral testimony OF the guardian c0ntradlctlng
| them. The sureties on guardians bond are
not entitled to the benefit of the appFaisement
| laws. Sections ST. 57S R. 81 IL is duesttona-
| BILE whether the Legislature can take from those
interested in guardians or executors bonds the
right to enforce their collection without relief
| from valuation laws existing when the bond
| was executed, and whether all such acts as that
relating to decedents' estates must not be con
strued as prospective only. Il How, 3l1; 10
| Ind, 15 8 Id, 533) Judgment affirmed.
HUSBANDS LIABILITY FOR MAGISTRATES FUR
WISHED.
1862. Franklin p Watkins vs. John W. De
Almond. Vanderburg 8. c.
Elliott. J.-Where a husband drives his wife
and children from his home. aud the children
are of such tender age as to require a mothers
care and to be incapable OF doing work,
and another furnishes them with food and
clothing, the husband may be held for the rea-
sonaDle Yaue or the necessarles furnished.
tSchOuler's Dom. Rel, 1913 NJ And the fact that
IL was me wires father VINO supplied sucn nsces-
states such facts as raise an implied promise, 1t
Is good, although it does not in terms aver that
there vas promise, Where the tacCs are prop
| ery pleaded from which the law implies prom
ise the courts will apply the law and make the
proper inference pom. on Rem, I'd ed, $50 H.,
"a Ind, 1861 Judgment affirmed.
LARcENY-FRAUDULENT REPRESENTATIONS.
1927. Harper CRIMSON ct al. VS.. The State.
Marion c. C.
Elliott, J.-Combs was a passenger on a train.
| and Grunson was sitting with him. AS the train
| entered Indianapolis, Smith came into the car,
pretending TO be an express agent, and was in
| tfodueed by CRIMSON to Combs. Grunson repre-
scented that he had lot OF furs on the train,
| which he was taking TO Cincinnati and handed
bank check TO Smith to pay the charges.
2 righ but taa he had non eneoE money was 10 nav
the difference with. Combs then advanced the
money to Smith under the agreement that he
| should hold the check until they reached CIn-
cinnati, when Smith would Cash it, Both men
then left the train, taking the check with them.
Appellants were rightly convicted OF the crime
| of larceny. Where the intent to steal has been
formed NJ or before the time of securing posses
sion, and trIckery is resOFted to in order to ena
Oe the accused to eoInmiI theft, the offense is
| larceny. az Ill.,, 1885, 50 N. Y, Ill; 81 Ind,
| BAL; Bick. Grim Prao., 1885, "a Ina, l4l; 10
Mass,, 359; SO N. Y, 1885, sc i'd, 394l Judg-
| ment affirmed.
RAILROAD NEUTRALITY-SUSPICIOUS. AT
TACKLED.
1863. Joseph l. irwin vs.. MinOs Lowe. Bar
| th0l0mew G. G.
Zollaea, J.-Proceedings to contest and over
| throw an appropriation in aid of the Columbus.
| Hope Greensburg railroad IL is urged that
| the election was void because of certain infor-
| mslities and irregularities therein. to-wit That
| in the heading of one of the pol-books the rail
road was named rs the c., ii, Il q. railroad,
and the number Of votes is given in figures In
| stead of words In another no name of the
| railroad was given at all. These were not
such Irregularities as would render the
election void. The notice of the cleo
| ten gave the name OF the road correctly,
and the voters knew for what road they were
voting aid. Section 4,059, r, s., names certain
| conditions which concern the permanent lOca-
| ton and operation of the road, ana the build
| Jugs and business connected herewith, and sec
| tiUn 4.045 expressly authorizes other oOndi-
| tions to be inserted in the petition which are
| not named In section 4,058. The condition that
| the road shall be built within a limited time
| different from any OF the matters enumerated in
section 4,O5S, and is valid and binding. When
s1ch time is fixed in the petition as a condition
| to tile granting of the aid, the vote Is taken
upon such condition, and lt is binding upon the
voters. the board OF commissioners and upon all
| Others. TO Ind. 359; 10 i'd, 543; 90 i'd, Ago
The aid voted in 1880 by the same township TO
EVanGVila AaEmnur RpltPfnnTainR
road had been forfeited by the failure of that
company to construct its road within the time
1882 was not in excess of the legal limits of
such appropriations. Judgment affirmed.
MARRIAGE NEUTRALITY-SUSPICIOUS.
TONS.
1O.O40 John NJ. Wiseman VS.. Sarah Wise
man. Hamilton G. C.
Niblaek, faction for partition by the appel
| lee, who claimed to be the widow OF John Wise
man, deceased. 1t was shown that the parties
were married in Maryland in 1928, ana after
| living together for about year, separated, and
| soon afterward agreed upon a permanent sepa-
| tlon. Wiseman soon afterward came to Indiana,
| where he resided until his death, III 1876. with
| the appellant Elizabeth Wiseman, who were,
| during all the time, recognized as husband and
wife, and had several children born to them.
| These facts do not show that the marital rela-
| ti0Ds once existing between the deceased and
| the appellee were ever dissolved. When the
marriage relation Is entered in tn it IL pre-
| sumed to continue until the death of Que of the
| parties, aud this umption can only be over
tract has been lawfully dissolved. Presump-
| lions cannot be INDUCED against the continu-
ance of marriage contract. Oral statements
OF one of the parties that divorce had been OBJ
tanned will not establish the fact such DISCO
luton, nor will the fact of separation, however
long continued. Judgment affirmed.
PRAcTIcE-ABusE OF NEUTRALITY-SUSPICIOUS.
| $40; Francis }. Rudolph VS., John Lande-
worland. Shelby c. @.
Black, C.-cOunsel by request may cause the
instructions to be numbered by the court (sec.
q anA hnn
no question can be presented on them in this
court. In u subsequent civil action involving
| the same subject-matter the defendants plea of
guilty In a former criminal prosecution is admis-
| sible against him, though it is not conclusive;
but subject, like other confessions, to be ex-
| planned or controverted rs Mo-, II; 8 Ohio,
| 131; wharton Ev, secs. 783, 83s; Taylor Ev.,
sec. 1,506J This court will not interfere be-
| cause of an abuse IN argument which was suffi-
GENTLY counteraeted. by the action of the trial
court, but 1t will interfere where, notwithstand-
ing the efforts of the trial court to correct the
abuse, the Irregularity appears to be such to
prevent a fair trial. In this case the plaintiffs
attorney, in argument. asserted that the
defendants witnesses were Catholics, and that
| it was doctrine of that church that they might
swear falsely and be absolved from the sin of so
doing by their priest After the court had
dered the attorney to desist from such state
ments, because there no such evidence in
the record, counsel repeated his statements and
| enlarged upon them. This was such an abuse of
argument as entitled the defendant to a new
trial. Judgment reversed.
| PAYMENT OF PART OBSERVATION-DISCLOSURES
TIoN.
1o,440. Alien G. Wells VS.. Henry Y. Morrison.
Howard c. G.
Bicknen, C.-ActiOn by appellee rpon an
agreement by which the firm of Adams a Wells
promised to pay 81, 500 and interest for certain
railroad bonds. Appellant answered that in
consideration OF the payment by him of $4,000,
the appellee had released him from the pay
nient of any further sum under the contract In
the fifth instruction the court told the jury the
general rule thai the payment of less sum will
not satisfy a greater sum already due, except in
| the cases which he would eRumerate. After
making this statement tue court was bound to
enumerate all the exceptions to which the evil
dence was applicable. IL appears that the 3d.
900 was paid by check on a bank. Such check
is an inland bill of exchange. Il Blkf,, l04:
Byles on Bills, 13; Gritty on Bills: 10Th Am. Ed,
51l.l 1t is one uf the exceptions to the general
rule that where the less sun is paid by a check
u L a III "a q hv ln