The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1897-10-27
THE COURT RECORD.


1880. Wampler vs. State ex rel. Alex
ander Blackford c. c. Affirmed. Jordan,
IL In mandamus suits the alternate writ
must be taken as in the nature of COM
plant in the cause, but the Facts SHOWN IN
the verified application, upon which the
alternative writ rests, may be, when neces-
sary used or looked to in order to supple
ment those embraced in the writ, and the
application may be considered by the court
in connection with the alternative; ana II
the facts in the writ alone, or when Suple-
mented by those in the application, are SUI
ficient TO entitle the applicant TO Sae per
emptory writ demurrer addressed 70 the
writ alone or to both the writ and appHca-
ton, should be OVerrule1. 2. Mandam is
the proper remedy to coerce an officer to
discharge a public duty, and any one nav
ing an interest in the matter involved may
apply for the writ. 3. The statute places
the election of county superintendent IN
the township trustees of each county, and
imposes the burden upon them in meeting
at such time and place for that purpose,
and in case of refusal to comply with the
law or discharge their duties they may be
compelled by mandate to discharge their
duty in obedience to the law; A. me court
judically knows the time when the town
ship trustees are TO meet for the purpose
of eecting the county superintendent. o.
The provisions of the statute. naming ana
finding the time for the meeting of the
trustees to convene for the purpose OF
electlng such officer must be CONSIDERED
as directory only, and not as prohlnltlng
the exercise of the power or discharge or
the duty imposed after the termination of
the time named therein.
pany VS. Hay Company. Marshall c. G.
Affirmed Howard, 1.-THE statute forbids
a railway corporation to cross stream OF
water I'm such q manner to interfere
with the free use of such stream, or IN such
a manner as to endanger lives or inJure
the property of those using or having in
terests in the stream, and after crossing
such stream the company Is bound to re-
store the stream to its former state, or
so far as necessary to preserve its useful
ness. And in ca such company so OBJ true S
the water course that 1t causes the water
to back upon the adjoining land 1t Is liable
to the owners thereof for the damages done
thereto. q Acts which occurred during the
trial, if erroneous, should be assigned as
reasons for a new trial, and not made an
independant assignment of error in this
court.
1891. Breyfogle VS. Stotsenburg. Clark
c. c.. Affirmed. McCabe, c. J.-Where an
assignee brings suit upon notes in favor of
his trust, and the defense is that OF fall
ure of consideration such failure. Of con-
sideration being based upon the fact that
the notes were given for property pur-
chased upon sale by orGer of court, unless
the sale and delivery are absolutely void
for want of a report and confirmation
thereof there is not a failure of consider
alton of the notes sued upon.
1881. Eigenman VS.. Clark. Perry G. G.
Transferred to Appellate Court.
1928 State of Indiana VS.. McEwen.
Johnson c. c. Certiorari granted and is
1924 State OF Indiana VS. Herring. Cass
C. G. Transferred to Appellate, Court.
1925. State Of Indiana VS.. Paper Com
1929. Glessner VS.. state of Indiana. Allen
c. c. Appeal dismissed on motion and leave
granted to withdraw transcript.
1886. Walker VS.. Walker. Hancock. c.
G. Petition to substitute parties granted
Allen c. c. Motion sustained and leave
granted TO amend assignment of errors.
Appellate Court.
1904 Burton VS.. Figg, owen c. c. Re
versed. Black, J.-Whiie the evidence must
~x,A xxrffh 4hn nln vat fnnVsn
may be recovery upon proof of some Of
the allegations without evidence sustain
ing others, the proof OF all the aYermentS
should not be required In the instructions
257s Manhattan VS.. State of Indiana. Sui
Ivan G. G. Reversed Wiley, G. il
When a person Is charged with assault and
battery and the evidence shows that the
prosecuting witness was the agressor, the
himself from an unprovoked assault upon
him. he may be justified in resisting an
attack upon his person. 2 In determining
whether or not there is evidence in the rec
ord to support the Judgment the court must
look at all the evidence and be guided by
25I0. Douglass VS.. State Of Indiana.
Marion Criminal Court. Affirmed. Robinson
i'll. In constituting statute such meaning
will be- given to the words of the statute
as will make them all effective unless by
so doing the purpose of the Legislature
will be defeated. 2. The words any per-
SON. in the second division of Section 2l79
r. s., 1894, cannot be said to be the any
person" used in the first division and the
word land connecting the two might
properly be read "or." BY the language
used in the formation of the above statute
the legislature intended to state two dis
tinct offenses. 3. The court has a right TO
temporarily excuse a juryman from duty,
but in the absence of any showing to the
contrary this court must presume that the
juror was present as member OF the
panel 4. Ii is not error to permit wit
nesses to testify that the copy of gambling
devices are correct representation OF
those used on the day of the odense
charged.
246i Tell City VS.. Biefeld Perry c. G.
Motion TO dismiss overruled.
1881 McAfee VS.. Montgomery. Wells G.
c. Certiorari granted and issued
$3.50 State of Indiana VS. Buskirk. Mont
gomery c. @. Motion to advance granted
and appellee ordered TO file brief In thirty
days.
2SS1 State of Indiana VS.. Buskirk. Mont
goinery c. c. Motion to advance granted