The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1901-11-28
HIGHER COURTS RECORD.
COURT.

Arr ILL JUL
1919. Indiana Stone Railroad Company VS..
Strain. Owen c. C.. Affirmed. COmstOck,
G. il. The law presumes that a railroad
Will be constructed in a proper manner. ..
4 railroad company may do what is neces-
sary TO be done in order 10 build its road,
and If done properly must be considered as
damages, TO be recovered by the owner
whose land is appropriated.
1913. Pittsburg. etc. Railway Company
VS.. Iddings. Lake G. G. Affirmed. Black.
il. A township trustee is a trustee OF an
express trust and may sue without joining
with him the beneficiary for whose benefit
the action is prosecuted. 2. a township
has such an interest in the keeping of a
public road in repair that II may sue and
recover damages for a wrongful injury TO
IL. 3. A railroad company is liable for the
injury 10 a roadway caused by fire negli-
gently escaping from the right of way and
the burning of public bridges, culVerts, etc.
4. The rule applicable as between a rail-
road company and an individual proprietor,
whereby the latter Is bound TO exercise rea-
sOnable and ordinary care and diligence to
prevent the destruction of his property by
fire ne9ligently permitted by the former to
escape from its right of way, by taking
precautionary OF preventive measures, can
not apply as between the railroad company
and a township.
1910. State. etc, Association vs.. Brackin.
BlackfOrd c. C.. Affirmed. Robinson, p. j.
Il. a proceeding. under 627. 62S, Burns, 1901.
10 review a Judgment for error OF law is in
the nature of an appeal and is 10 be tried
by the record alone. A party may appeal
TO the appellate tribunal. or he may file in
the Circuit court a complaint Tor review,
and the adoption of one of these remedies
valves the other. 2. In review proceed
ings the only errors that can be considered
are such as might have been considered i'm
this court had the. original case been APP
pealed here directly.
$500. De Ruiter vs.. De Ruiter. Marion s.
c. Affirmed. Wiley, j. money, whether
it be secreted or deposited i'm bank is not
subject to levy and execution. 2. a wife
is a present and continuous creditor of her
husband, and In an action for divorce from
| the husband she may recover real estate
which her husband fraudulently caused her
TO convey. 3. Where there is evidence in
the record 10 sustain the finding Of the
trial court this tribunal will not weigh the
evidence. 4. A creditor may go into court
and attach a conveyance OF his debtor as
fraudulent and ask that Such conveyance
be set aside and the property be subjected
TO execution and sale to satisfy the claim
when reduced TO judgment 5. 1t is the
duty of a trial court in decreeing a divorce
to the wife or refusing one on the applica-
ton of the husband, TO require, by order,
that the husband pay all reasonable eX-
penses of the wife in the prosecution or
defense of the petition.
1881. Fifer VS.. Rachels. Posey c. C. Re
versed. Henley, MERELY signing a deed
of conveyance and depOsiting it with a
banking company as bailee subject TO re-
delivery at any time the depositor (grantOr
in the decd calls for it, is not a delivery so
as to vest the title In the grantee at the
grantor's death.
1909. Matchett VS.. Knisely. Marshall c.
G. Affirmed. Henley, il. Parol evidence
Is admissible to show that a deed alb
sOlute upon it's face is only a mortgage.
1888. Mathews VS.. Rumel. Benton c.. e.
Reversed. Robinson, G. il. The court
may, on motion, allow supplemental plead
ings, showing facts which occurred after
the former p~leadings were filed. ?. 1t is
error to permit a material amendment
after a cause is submitted TO the court for
decision upon the evidence.
1881. Rooms VS.. Manifold. Henry c. c.
Affirmed. Black, il. An estate given by
will in clear language cannot be either
cut down or enlarged in a subsequent part
of the will, except by words equally clear
and decisive. 2. When real estate and per-
sOnal property are disposed of in a will
by words in one connection relating alike
to each so that the intention OF the testator
that they shall go together, in the same
way il manifest, the will should be so
construed as TO carry such intention into
effect.
1922. Rose VS.. Provident, etc, Assn.
Marion S. c.. Affirmed. COmstock. il. If
two mortgages upon the same real estate
are executed simultaneously, one OF which
is for purchase money, in the absence of
any agreement the mortgage for the pur-
chase money will be given priority, and
the mortgage. 2. If mortgages on the
same real estate are executed, apparently
as disclosed by the Instruments. upon the
same date, 1t is competent TO prove that
one was delivered before the other for the
purpose of giving it priority. 3 A lien
holder may waive the prior lien of his
subsequently executed it shall. be the first
lien upon the mortgaged real estate.
3i4i. OlllZenS St.-R. GO. vs. Hedtn. Hen
bricks G.. c. Affirmed. Comstock, il.
Where al action is brought by a husband
for damages, on account of an injury to
his wife through the negligence of the de-
PENDANT, the general allegation that the
injury for which suit is brought was caused
without fault upon the part of plaintiff
is the proper one 10 be made. 2. The
freedom from contributory negligence may
be shown by the general averment, and
by specific facts alleged. 3. When Ii does
not appear that the defendant was pref
udiced by an amended reply, the judg-
ment will not be reversed. T. When upon
crOss-examination of a witness the court
s~ustains an objection to a question pro-
pounded TO the witness, it is not neces-
sary to save the question that the exam
ing party should state what he proposes
to prove. D. a witness may be asked upon
crOSS-eXaminatiOn as to particular acts for
the purpose of affecting his credibility as
a witness. 6. The cross-examination of a
witness upon collateral matters and speci-
fled acts OF immortality rests largely in the
discretion of the trial court, and in the
absence of a clear abuse thereof the cause
4Oi2. Workman VS.. Minich. Sullivan c. C.
Affirmed. Roby. il. Whether or not
the wearing of a glove i'm oiling certain
machinery is negligence or not is a ques-
tiOn for the jury to decide. 2. An %instruc-
ton which invades the province of the jury
is erroneous. but where it appears that the
cause has been fairly tried upon its merits
then it will not be reversed upon such an
instruction.
5. G. Reversed. ROby, il. Where a
creditor occupies a position superior to
other creditors and by means of it secures
an advantage, he must, when the transac-
tiOn is attached afirmatively show fairness
and good faith. 2. Where directors act
without any authority the corporation is
not bound by their acts.
1899. Moran VS.. Creagan. st. Joseph g.
g. Affirmed. Henley, J.-Where an ap-
p~licatiOn is made for a license TO sell in
toXtcating liquors at some designated place
in a township, beyond the limits of an in
cOrpOrated city therein, Ii requires a ma
Jority of the legal voters of such township
residing anywhere therein to demonstrate
in order TO defeat such application.
3S2. Essex VS.. Myers. Whitley G.. c. Re
versed. Robinson. +. il. A substantial
compliance with the act of March s, 1891, is
sufficient TO get the evidence into the rec
ord. >. When it is averred that "a deed
for said premises was . " . issued I'm ac-
cOrdance with the statutes of the State" TO
the plaintiff by the county auditor such
aVerment is one of conclusion. not OF fact.
3. A tax deed must be executed by the coun-
ty auditor under his hand and seal and wit
messed by the county treasurer and ac-
knowledged and recorded properly.
32Sf. Robinson VS.. Wolf. Marion 8 C
Affirmed. ROby, Jan insurance company
organized under Sections 4S07. 4S4s. 1900, 4901
and 1903. Burns. 1901. cannot by special
contract make a policy holder. one amonG
a limited number, recipient of a portion OF
the gross earnings on all insurance In force
in Indiana for a period OF ten years.
1893 Naught vs. Barnes's Estate. Clark
9. &. Reversed. Wiley, il. on appeal
every reasonable presumption is INDUCED in
favor of the general verdict. ,. Where a