The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1886-05-26

ct al; Masters report fled
Today-Call: 1922, John 4. Farwell VS..
William Dolan
Supreme Court.
Hon. G. v. Howk, Chief-justice
The following decisions were rendered May %:
1908. Andrew j. Bryant VS.. State Morgan
G. g. Reversed. Howk, G. J.-Conviction of
voluntary manslaughter Ill motion to quash
an indictment should be overruled. if any count
is good. e. Instructions Past threats con-
Duct of the deceased against the defendant how
ever violent, will not excuse homicide, without
sufficient present demonstration on the part of
the deceased to authorize the belief on the part
OF the defendant that the deadly purpose then
existed to do the defendant great bodily harm.
and the fear that it will be then executed. The
danger must be present, apparent and imminent
from the defendants stand point at the time;
and the killing must be done under a well-found-
ed belief that it was absolutely necessary for the
defendant to kill the deceased to save himself
from death or great bodily harm" Held Error.
1888. Harmon Beach vs. Englebert thinner
man ct al. Porter G. C. Affirmed. Howk, j.
The jury found that appellant the payee of the
note in suit. had extended the time of payment
for valuable consideration, without the knowl-
edge or consent of appeees who were sureties,
aud the evidence tends to prove such
1861. Mary j. Ikerd ct al VS. Henry J.
Beavers Fountain G. G. Affirmed. Mitchell.
J.-(l) The facts are that, in 1881, one Ikerd
and wife owned and resided upon a farm in
Lawrence county. The defendant, an uncle of
Mrs. Ikerd, proposed to them that if they would
sell their farm, on to his eighty acre tract
now in dispute and upon which he resided, in
Warren county. and take care of and support
him thereon during his lifetime, he would,
within reasonable time, convey 1t to Mrs.
lkerd. The plaintiffs accepted the proposition,
sold their farm, took possession of defendants,
and entered upon the performance of their con-
tract which they have maintained for year,
when the defendant abandoned the contract,
and refused to permit its further performance.
Suit to have a deed executed and quiet title
Held: That the facts do not make case for
specific performance a. Where the defendant
in such case, aged sixty nine years, was danger
ously sick and Frustrated, and while in state of
great physical and mental weakness the plaintiff
Importuned him to make deed, and being un-
able to resist their entreaties or to understand
the nature of the paper presented to him an in
ference of undue influence arises which is incum-
bent on the plaintiffs to repel (3 Where the
issues are submitted to the court and jury is
called to inform the court as to the facts merely,
if without election the court takes the advice of
jury by means of general verdict, making its
own finding, treating such verdict as advisory
merely, it is not reversible error
1856 Frank Broseur ct al. vs. VIM. e. KEEL
sey. Pulaski G. c. Reversed. collars, Sec
ton IL of the act of 1875 authorizes the treas
urer to collect the amount of alotments for ditch
erty, and by sale of the land in case the owner
had no personal property. There is lien for the
purposes of collection in the State if the land be
sold and the deed prove Ineffective. Where a
party asserts title through an allotment, seeks
to have a lien declared for the amount of the
allotment where the tax deed is Intellectual to
convey title, the burden is upon him to allege
and prove that the law was substantially COM
Piled with in relation to notices to parties to be
affected. ~ One of the owners of the land
nj no I'D IN hn NV nnnA-
lngs, and the evidence fails to show that she had
notice
1906 Henry s. Barnaby VS.. The State.
Clark G. c. Reversed. Niblack, J.-n.) On
Nov Z, 1885, appellant, convicted of keeping
gaming house, his motion for new trial being
file bill of exception. No BILL however, was
filed. Jan. 4. 1885, the court rendered judgment
against appellant and granted him thirty days
within which to file bill, which was filed in
tame. Held: That the bill was properly in the
record as the power of nisi prius court to ex-
tend the time of presenting bill in criminal
cause is not exhausted until the judgment is
rendered. e. The proof fails to show that APP
pellant had any interest in or control over the
room in which the gaming testified to took place.
or that he had knowledge that it was being so
used, and it is insufficient.
1O646 Henry Drebert ets al VS.. Paul Trier.
Allen C. G. Reversed. Nihlack, i'm pro
ceeding to establish ditch the petition notice.
report of viewers and proceedings of the Board
of Commissioners heretofore establishing and
operating ditch on the same ground on which
the contemplated new ditch was to be
structed.- for the purpose of showing the width
and depth of such ditch and the assessments
which had been made, were offered in evidence
but excluded. Held: Error
1855 Phoenix Insurance Company vs. Will
lam S. Lamar. Spencer G. c. Reversed. Mitch
ell, J.-Where an insurance policy stipulated
that if the insured shall take any other insur
ance, whether valid or not, the policy shall be
avoided, the effect of such stipulation cannot
be avoided by showing that the prohibited insur-
ance was invalid.
1875 Board of Comm issoners of Fulton
county vs. Dimmie e Ricketts,. Fulton G.. c.
Reversed. Elliott, J.-While counties are liza
bic for negligence respecting county bridges,
they not liable unless the injury is the prox-
innate result Of this negligent breach of duty.
Where one driving in a carriage approached
within short distance of bridge and the
horses becoming frightened at plank standing
MP in the bridge, which was out of repair, threw
the occupant to the ground causing injuries
there can be no recovery against the county.
1905. L., N. A. & G. Railway Company VS.
Frank e. Morley. Monroe @. G. Reversed
Elliott Jill Where a suit is brought to re-
cover FOR mules killed by a railroad, but is dis
missed as to part of the mules killed. a general
objection to the action of the court in permit
ting the cause to be dismissed will NOT present
any question as to whether the court ought to
have required the plaintiff to designate particu-
larly the mules for which recovery was sought
~ The court submitted Undergraduates of its
its own. one of which was Gould the defendant
have lawfully fenced its track at the point where
said mules entered upon the track?" Held:
Error, as calling upon the jury TO decide ques-
ton of law
1886 Elizabeth Mclean VS.. Jennie NJ Hess
ct al. Marion S. O. Reversed collars, j.
One Gibson sold mill property to. one NJ clean.
who. to avoid creditors, had the conveyance
made to his wife. Nothing was paid on the
property at the time. The wife and her hus-
band, Mclean, executed a note to Gibson. but
refused to give mortgage. A policy of insur
ance was taken in the wifes name the premium
paid by Gibson, who was TO have the property
insured for his benefit Gibson furnished money