The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1892-11-30
The Court Record.
SUPREME COURT OPINIONS.


1905. Alonzo Douthit ct al. VS.. James s.
DouthIt. Shelby {. Z. Affirmed. Elliott,
i'll. Where there ls an agreement ad-
justing partnership affairs, and that agree
ment awards TO one partner q specific sum
or creates a specific duty in his favor, he
may maintain an action upon q breach of
the duty or promise. z. Where one part
ner, upon dissolution. Internationally
fed debt, he is absolutely bound, and no
demand Is required to fix his liability.
Where q partner collects money which
he agrees shall be collected by his co-part-
ner as his individual property. and after
collection converts it TO his own use, the
partner to whom the money belonged may
maintain an action for Its recovery with
out q prior demand. 3. Where parties and
counsel prevent an appearance and defense
by representations and promises. they are
guilty of fraud, If. in violation of the
promises. and contrary TO the representa-
tions, they take O default In q case where
they know there IS q defense.
1878 Simeon Fields VS.. State. EIkhart
e.. c. Reversed Miller. G. ~J.-Appellant
was convicted of murder in the second de-
gree. The defense was self defense. The
court reviews the instructions, and holds
they did not plainly and affirmatively state
the law. and the Judgment is reversed.
1891. Sarah Nook vs. City OF Muncie.
Delaware c. C.. Affirmed. Miller, e. j.
The words vicinity" and ~'vicinage." as
used in the statute (Secs. 316S, $40. 3l72, X.
S.. concerning the assessment of property
for street Improvement. are words of limi-
tatiOn. The term Is so expansive and rela-
tive as to prevent court in many cases from
saying. as u question of law, whether a
point 10 or Is not IN the vicinity of another.
In such cases the question NAV properly be
submitted to the Jury for their determine
ton. The court holds the evidence In the
case shows that the property was in the
vicinity of the prc posed Improvement. and
thereby benef<ed. 2. In q proceeding by q
- 81 II. ~ 5000 ---A
of the transcript as contained the report of
the city commissioners which gave, among
other things. the amount assessed against
appellants property was inadmissible.
l5Oss; James H. Crabbe vs.. Jacob Orth.
Vig0 C.. e.. Affirmed. Elliott, 1.-THE
theory adopted in the trial court must be
adhered to on appeal. 2. In q proceeding
to contest an election entering n general
appearance In the commissioners court by
the defendant precludes him from success
fully assailing service of notice. 3. Tes-
timony of witnesses that they voted for
the defendant and that they were at the
time under twenty.One years of age was
competent. 4. Where one party gives
notice that he will take deposition OF q
witness under a. order requiring three
days notice to the adversary and is present
at the designated time and place the depo-
sition of the witness named NAV be taken
without further notice by the adverse
party.
1862. Harry Trogdon VS.. State. Clay
C. c. Reversed. Mcbride. 1.-THE statute,
Section 1928. X. S., is only intended To Sc
cure to the defendant the right TO specific
Instructions upon questions not sufficiently
covered by other Instructions 1t Is not
designed TO compel repetition or %reitera-
ton. z. Ono who is In no apparent
danger. b does not. in fact, apprehend
any danger, and who has no reasonable
ground Tor such apprehension cannot de-
hoerateiy and maliciously kill another
and successfully lnterpose self-defense. be-
cause IL subsequently appears that there
was actual danger, of which he was at the
time ignorant. = An instruction that if
the jury was satisfied that the homicide
was Justiflable, etc.. was erroneous. as the
defendant is not required to satisfy the
jury Of a fact which If true, would form
q complete defense.
1878. Board, etc. of Alien County VS..
Joseph j. Creveston. Administrators Adams
e. g. Affirmed. Mcbride. J.-Countles are
liable for negligence In the construction
and maintenance of bridges. 10 cannot be
held negligence per So to attic m DIT to cross q
bridge with an engine. boiler and wagon,
so gross ms TO overcome the general aver
gence or fault. 2. The action for damages
for injuries received on q defective bridge
Is not barred because n claim filed before
the board was disallowed and upappealed
from.
1901. c.. La C.. Railway Company va.
George l.. McDaniels. Reversed. Odds,
IA verdict of q Jury. reached by a vote
of the jurors. and the different amounts
voted added together, aud the sum divided
by twelve. and the quotient to be the
amount of damages to be assessed. Is in
valid. and such lnvalidity may he shows
by the affidavit of the bailitf or other per-
soE who may have been in position to
know the tact.
1859. Lawson Popejoy VS.. Nancy A.
Miller ct al Wells q. &. Reversed. oids.