The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1901-04-27
THE COURT
SUPREME COURT.

quired into by a judicial tribunal. ,. The
mortgageor in such instance has such a di-
rect interest in having the entry of salts
| faction made where the debt has been paid
that he IS the proper person 10 prosecute
the action against the mortgage and TO re-
/ ceive the penalty. (. The record of mort
cages is a public record. and is intended for
the Information of the public generally. 3.
The provision of the Constitution that 'the
| common school fund shall consist OF = = .
the moneys to be derived from the fines as
sessed for breaches of the penal laws of the
State. and from all forfeitures that may ac-
crue.' does not apply TO civil actions for
the recovery OF penalties.
1865. Lee VS.. State. st. Joseph c.. c.
Affirmed. Jordan. il. Where a defend
ant admits the truth of all the evidence
given by the state. he must be held to adj
nit all differences that the jury NAV logic
ally and reasonably draw from such evil
dence: 2. A review and relief from an err
ror of fact into which a jury upon a trial
of a cause may have been led Is confined to
the trial court. and 1t is only when there is
an absence OF evidence to support some
fact or facts essential or material to the
judgment that the question arising In re-
spect to such facts becomes a matter of
law and subject TO be reviewed and correct
ed on appeal 10 this court. 3. The fact
that the evidence upon which the judgment
of the trial court rests may be weak or I'M
satisfactory is not available on appeal. 4.
Where the circumstantial evidence i'm a
case is of such a character that two con-
ficting differences may be reasonably
drawn therefrom. one favorable and the
| III ~ tHt accused. ms
court cannot say which inference
ought TO have controlled the Jury.
3 In a criminal prosecution where cir
cumstantial evidence is relied upon 10 con-
vict, the proximity OF the defendant To
the place or scene of the crime about the
time of its commission, in connection with
other circumstances, is shown and con-
sidered to establish by necessary or reas-
enable inference the resumption of his
participation In the criminal act. s. Where
the accused In a criminal prosecution has
it peculiarly within his power to produce
evidence or a witness whose testimony
would or could explain a transaction, the
fact that he does not do so. or at least
makes no effort to procure the testimony
of the witness, raises a presumption that
the evidence or testimony, IL produced.
would be unfavorable or prejudicial to him.
1896. Brackney VS.. Fogle. Noble c. c..
Reversed. Hadley, il. Incompetent tes-
timony on a material matter is presumed
test a will upon the unsoundness of mind
of the testatrix at the time of it's execu-
ton 1T is error to allow a n~onexpert wit
ness to testify that the testatrix was In
capable OF transacting business. 3. In
such an action the capacity of the tesla
trix TO DO business, as applied to the bus
mess of making a will, is the question the
jury is to decide. T. Witnesses may give
the facts indicating the mental character
istics and tendencies of the testatrix under
inquiry, and on account of certain we'll
known indescribable aspects Of expression
or action, nonexpert witnesses may, upon
the facts they state, express an opinion as
= ~ AA0 ttld 6tntl III - IL
an action 10 contest q will on account OF
the unsoundness of mind of the testatrix
1t is error for the court to allow the at
torneys for plaintiff to common upon the
absence of the testimony of the physician
who attended decedent In his illness when
such testimony is excluded by reason of
its being privileged.
1857. Abshire VS.. State. Delaware G.
C. Dismissed.
1907. Pearson VS.. Kipner. Miami c. c.
Transferred 10 Appellate Court.
1915. Smith VS. HOlZ. Vanderburg q. e.
Same.
1898. Martin VS.. Board of commissioners
Montgomery G. c. Same.
1897. Kissel vs. Lewis. Hamilton c. c.
Same.
Minutes
1883. Harry Baum VS.. State OF Indiana.
Appellants brief 49,
New Supreme Court Suit
1868. Amos Jones ct al. VS.. William G..
Wright. Madison c. c.. Record. Assign
ment of errors. Notice. Service on CO.
appellants in part CO. Petition and am
davit for publication. Record withdrawn as
soon as filed.
APPELLATE COURT.
344O. Wabash Railroad Company VS.. Lin
ton. Warren G.. G. Reversed. Henley,
c. il. In an action against a railroad for
QUOT of the servants of the company the
complaint must show that such servants
were, at the time Of the commission Of the
their employment or that they We're doing
what they were hired TO do, or were acting
under the direction of the company.
2 Neither a willful and tortious or negli-
gent act, resulting In injury, If done by an
agent acting without the course of his en-
ployment, can be the subject of recovery
against the principal.
1916. Woodruff VS.. Hensley. Monroe c.. e.
Reversed. Roby, il. In an answer set
ting up the breach of warranty of a ma
chine sold, the particulars of the breach
should be averred. ?. When the court is
requested to instruct the jury in writing IL
IS error to read from papers and pleadings
not copied in the instructions. 8. Where the
burden or proof rests must be determined
from the pleadings. 4. The mere with
drawal OF the general denial does not en-
title defendant to the open and close when
the suit is upon a lost promissory note and
IL is alleged that a certain sum pleaded is
q reasonable attorney fee recoverable by
PLAINTIFF; and the mere fact that il is
agreed i'm open court that a certain sum is
q reasonable attorney fee does not change
the order.
1868. Pittsbure, etc, Company VS.. Grant.
Vigo G. c. Affirmed per curiam -Wher
the trial court reaches a correct conclusion
and there is no reversible error in the
record the judgment will be affirmed
S7S. Cruson VS.. Coots. Clark c. c.. AT
firmed per curiam.-Where the ground for
a now trial is That the verdict and judg-
ment herein Is not sustained by the evil
denoe and IS contrary TO law" and there
Is evidence fairly supporting the judgment,
IL will be affirmed.
34sS. Hutchinson We. Stone. Boone c. c.
Affrmed. NO opinion. Per curtain.
3430. Ohio Gil Company VS.. Griest. Jay
G.. c. Affirmed. No opinion. Per curiam.
S279. Chicago, etc, Railway Company VS.
Fifth National Bank. Madison c.. c. Petl-
ton for rehearing overruled.
Minutes
1856. Nappanee Canning Company ct al.
VS.. Reid. Murdoch & Co. ct al. Appellants
additional brief.
Oral Arguments
Division No. 1.
3449. Oliver H. Bogue ct al. W. John w
Murphy ct al. Tuesday. Oct. /, at 10 o'clock
a. IN.
Division No. 2.
1898. Apple, assignee, vs. ]. Smith.
trustee. Wednesday, May S.
SUPERIOR COURT.
Room John l.. McMaster, Judge.
Anthony Kleinschmidt ct al. VS.. Samuel
Waters; mocha MICS lien. Dismissed and
costs paid.
Hiram Bacon VS.. Henry Wishmeyer: dam
ages. Appeal. Evidence heard and taken
under advisement.
Room FLAMES NJ. feathers, Judge.
Roy Burris, by William Burris. VS.. In
dianapolis Street-railway Company: dam
ages. Jury returns verdict for defendant.
Room 3-Vinson Carter. Judge.
william Treitschke Us. James l. Barnitt
/ do ~ on1 InrN~ ~ trnr1gn4 81. g.