The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1884-04-21
THE RECORD OF THE COURTS.
Supreme COurt-April 10.
Hon. Geo. V. Howk. Chief Justice.
MISUNDERSTANDING HIGHWAYS.

so doing was obstructing the highway with dirt bowl
ders, ETC. and rendering it unfit for by the public
Answer that in constructing its railroad along and
across said highway it became expedent, in order to
make the highway easy of ascent and descent,
and safe for travel to take additional lands bordering
the highway whereon to construct the highway
which appellee had done, and had put the highway in
a proper and safe condition for travel, ETC. Under
section 1915 r. S. the facts stated in the complaint
were insufficient The answer shows that the appellee
has proceeded according to law, but 1t had not done
it could be compelled discharge its duty by man
date (37 Ind, 499; 80 i'd, 5l9) Judgment at
hrmed
TAXES VOLUNTARILY PAID-REcovERY
1885. William FL. Durham vs. Commissioners
Montgomery County Montgomery C. G.
Elliott J.-There can be recovery of taxes vol
unfairly paid, though paid under protest. unless
there is statute authorizing such recovery. 20
Ind 30; 20 id, 4561 There is now such statute,
(S6 Ind, ssh but in order to make within the
statute it must be shown not only that the special
in an irregular manner but also that the property
upon which the laid not justly subject
to the assessment. Judgment affirmed.
G-INTENT-CoLLATERAL FACTS.
11601. Joseph Norris VS.. the State Lagrange
Hammond, J.-Appellant was convicted of black
mailing by means of. sending a letter under
fictitious to Hart and Deter, charging them with
the theft of whip upon the receipt of which they
sent the money demanded. Vedder associated
with appellant in the sending of the letter. The
and the theory of the defense that
the letter was sent merely in sport, as
joke. Appellant offered to prove that Hart
and Deter had perpetraed jokes quite as rough upon the
appellant and Vedder, short time before the sending
of the letter This evidence was proper. The fact OF
Hart and Deter playing rough Jokes on appellant
would not Justify the sending of the letter, but as
bearing upon the question of the intent with which
the letter written it proper to show the pre-
vious relations of the parties Unless the intent 10
extort money existed in the mind of appellant when
the letter sent there could be no crime Evidence
of collateral matters is usually inadmissble in crim
nal but where such collateral matters bear upon
the question of intent they admissible. (Whart
Or. Ev., sec 46i Greenl Ev., sec. $50 Judgment
reversed.
NEUTRALITY-SUSPICIOUS. IN RECORD.
1O497 Hiram Cobb VS.. Frank Alderman. Allen
Howk, c. J.-Miseonduct of the jury on the trial is
the second statutory cause for new trial and must
be sustained by affidavit showing its truth Secs
$50, 562 RS The affidavit filed by appellant was
not made part of the record either by bill of excep
tions or order of court and cannot be considered.
(66 Ind, 10; 70 i'd, 354; rs i'd, 3599 Judgment
affirmed.
REPLEvIN-TIT AND PARoL CON
TRACT
1091S. D. II. Baldwin ct al. VS.. Green Burrow.
Hendricks G. G.
Franklin, G-Replevin for an organ sold Appel
lants claim that it sold condtonay, title to re-
main in them until all the payments were made. APP
pellee was drayman, and hauled and set up appel
lants' instruments and claims that the verbal con
tract that the organ should be paid for in work
to be furnished him by appellants In his answer he
claimed that he had done more than enough work to
pay for it, and that there was $40 due him, for which
this action anything for overpayment he had
the right to plead property in himself and this Is
what his substantially did. Appellee testified
that he could not read writing and that the written
contract read to him before he signed it. but
told that it only agreement to secure the
performance of the work previously agreed upon
Had there been controversy about the validity of
the written contract the previous parol agreement
yould have been merged in it, but as the validity of
the written instrument disputed it proper for
all the facts relation to the contract TO go before
the jury for their consideration. Judgment affirmed.
RPLEADER-JUDGMENT FOR EXCESS.
1920 voney Q. Irwin vs.. John Ratlif ct al.
Grant G. c.
Black. C-Appellants sued Ratlif & Bundy to re-
cover money alleged to be in the hands of Ratlf for
their for the construction of gravel road Rat
lift showed the amount of money in his hands and
prayed the court to adiudge to which of the parties it
belop ged. Bundy answered that he was sub-con-
tractor under the appellants for portion Of the work
and demanded judgment against them for the due
him. Held: Although the achonwas instituted by APP
pelant merely to establish to whom the money held by
Ratl belonged yet the court having all the parties be-
fore it. and being capable in that action of doing
pete justceto them ALL it proper to give Bundy
judgment against appellants for the amount due him.
over and above the amount so held by Ratlif. Judg
ment affirmed
LOCATING ACKNOWLEDGEMENTS
I1O72 Elisha Gift ct al. VS.. Marcus Brown ct al.
Coleriek CA defective bond given on appeal from
the county board in highway is remedied when
bond is executed which conforms to the statu-
tory requirements. (Sec. 1888 R. S. 2 Ind. Law
L,
viewers considered waived unless presented to the
county board. (S6 Ind, So A description of
proposed highway which is definite enough to enable
surveyor to locate the highway is all the law
qures in the petition. q Ind, l.. Mag 350J Judg
ment affirmed.
PARTNERsHP-LIEN OF NEUTRALITY-SUSPICIOUS.
11O15 VIM. E Dill ct al. Jno. NJ. Gray ct al.
Hamilton c. G.
Bicltnel G. C-wm and Henry Dill were partners
and Gray obtained Judgment against Henry, who
sold his interest in the firm property to William
Afterwards, in action therefor, the sale to William
set aside fraudulent against Gray, and Henrys
interest declared to be subject to the lien of Grays
Judgment. After this William sold two-thirds in
terest in the property to his coapeents and the
firm paid off the mortgage which the property at
the time Gray judgment was recovered andmade val
liable improvements thereon. Held. As against GRAY
Henry's interest in the firm property could not be
sold by William to his coappellants. and 1T still
liable to be sold on his judgment Nor appellants
entitled to subrogation under the mortgage paid by
them, because it was paid in part by William who
originally bound to pay it, and there is subroga
ton where a pays his own debt 80 Ind, 443.
Judgment athrmedl.
DECEDENTs' EsTATEs-PREFERRED CLAIMS
1892. Samuel B. Cunningham vs. Mary Cum
nngham. Harrison G. G.
Hammond Ut is the widows right to have her
interest in the lands of her deceased husband dis.
charged from a mortgage existing at the time of his
DEATH before the payment of general debts. (2l Ind
III 40 i'd, ia; 81 ID, $500 And if the admins
traitor pays the general debts and the estate proves
to be insdlvent he will be liable to the widow
TO the extent of her claim against the estate. 1t
her duty in such to resi- the approval of the
administrator final report as its approval would be
conclusive against her until set aside for fraud mis-
take. q Ind, L. Mag. $685.
JUSTICES OF THE PEACE-RIGHTs TO BOOKS AND
PAPERS.
11142 James L. Morris rel Crawford.
Harrison G. G.
Best, C.-The evidence shows that the
officers of three of the four justices of the peace in
Harrison township would expire before the next cleo
ton after that of April 1882 One of these had been
held by Cunningham, who had resigned; another by
Matthews by appointment, whose term would expire
his successor should DO elected and quail
fed and the other was held by appellant, whose term
expired November 5, 1882. At the election in April
1882 Crawford, Matthews and Rhodes were elected
but Rhodes failed to qualify by whereof there
was vacancy in the Office he elected to fill
and on November l, 1882, appellant resigned
his Office and was appointed to fill said vacant Office
and thereupon possession of the books and papers
tharetofere used by him. The commission Of Mat.