Reports of Cases Argued and Determined in the Supreme Court of Judicature of the State of Indiana

different description, as the offense
was a distinct one and might have
prejudiced the defendant before the
jury.

Held, also, that statements of third par-
ties tending to show that they were
the persons who got the money in
question from the prosecuting witness
were properly excluded, as hearsay
evidence.

Bonsall v. State.......460
12. Election.-Voter.- Qualifications.
An indictment charged that the de-
fendant voted at an election, "not
having the legal qualifications of a

voter.'

.485

Held, that the indictment was bad for
not specifying what qualifications the
voter lacked-for alleging, not a fact,
but a conclusion of law. Quinn v.
The State.............
13. Murder.-Admission of Evidence.
On a trial for murder, a statement of
the deceased person, made before the
commission of the act, and not made
in the presence or hearing of the de-
fendant, is not competent evidence
against him. Cheek v The State.492
14. Same.-Exclusion of Evidence.-
On a trial for murder, it is error to
exclude evidence tending to show
that the person killed by the defend-
ant had entered into a combination:
with a third person to induce the de-
fendant's wife to elope with such
third person and leave her husband
and children, and that facts tend-
ing to prove such combination, of late
date, had come to the knowledge of
the defendant...
..Ibid.
15. Same.- Misconduct of Jury.
During the progress of a trial upon
a charge of murder, two of the ju-
rors, over the objection of the defend-
ant, took, in writing, notes of the ev
idence, and persisted therein, although
directed by the court not to do so.
Held, that this was such misconduct on
the part of the jury as entitled the
defendant to a new trial.........Ibid.
16. Rape.-Indictment.- An indict-
ment for rape charged, that the de-
fendant, on, &c., at., &c., "did then
and there, in and upon" A. B., “a
woman, forcibly and feloniously make
an assault; and her, the said" A. B.,
"unlawfully, forcibly, and against
her will, feloniously ravish and car-
nally know, contrary to the form of
the statute," &c.
Held, that the indictment was not bad

because the word "did" was not re-
peated before the words "ravish and
carnally know." Whitney v. The
State.....
.........503
17. Same.-Venue.-In a prosecution
for a rape, the record showed the
trial to have occurred in Indianapolis,
Marion county, Indiana, and the evi-
dence as to the place where the crime
was committed was, that "it was in
Indianapolis, in this county."
Held, that the venue was sufficiently
shown.......
...Ibid.
18. Same.-Evidence.-Where on the
trial of an indictment for a rape, the
evidence showed that the prosecutrix
was of doubtful character; that she
did not presently discover the offense,
nor indeed at all until interrogated
about it; and she remained with the
defendant afterwards, and the party
accused did not flee; and the prose-
cutrix was uncorroborated by any
material evidence; the place of the
crime being such that it was possible
she might have been heard, and she
made no outcry; and there were oth-
er circumstances of doubt;
Held, that the evidence was insufficient.
Ibid.

fendant the complaint, where either | 2. Ancestor.-The doctrine of tracing

shows a want of jurisdiction, or where
the facts stated are not sufficient.
...304
Menifee v. Clark..........
2. Cause. A demurrer assigning for
cause, that the several paragraphs of
a complaint "are not good and suffi-
cient in law," presents no issue of
law. Porter et al. v. Wilson et al...348

Same.-For what Causes Allowed.
A demurrer must assign some one of
the six causes enumerated by the
code. (2 G. & H. 77.)........... Ibid.

back the title to a remote ancestor,
the first purchaser, does not apply to
our statute of descents. The rule is
to trace the title back to the person
Ibid.
last seized...

"" as

Same.-The term "ancestor
used in a statute of descents means
any one from whom the estate is im-
mediately inherited, Johnson v.
Lybrook, 16 Ind. 473, overruled..Ibid.

DIVORCE.

1. Appeal. The discretion vested in
the circuit and common pleas courts
by the seventh subdivision of the
seventh section of the act concern-
ing divorces is subject, upon appeal,
to revision by the Supreme Court.
..44
Tefft v. Tefft........
Cause.-Where a man marries a
woman whom he knows to be the
wife of another, the courts will not
relieve him from the consequences
of his act, by granting him a di-
....Ibid.
3. Marriage.-Void.-If either party
to a marriage have a husband or wife
living at the time of the marriage,
the marriage is absolutely void..Ibid.
Same.-Pleading.-A pleading, if
it states a cause of action, may be
good as a complaint to annul a mar-
riage, although it be filed as a peti-
tion for divorce, and as such be
Ibid.
bad.........

1. Construction of Statute.-Widow.-
Child.--Collateral Relatives.-A., be-
ing seized of lands, died intestate,
leaving B., his widow, and C., his
only child, him surviving; afterwards,
B. died, intestate, leaving said C., her
only child, her surviving; afterwards,
C. died, intestate, without issue,
grandfather or grandmother, brother
or sister, but with paternal and ma-5.
ternal uncles and aunts, him survi-
ving.

Held, that the widow, B., and C., the
child of A., deceased, inherited, each
one-half, as tenants in common in fee
simple, the lands of which A. died
seized; that upon the death of B.
(the widow of A. and mother of C.)
C. inherited from B. immediately and
directly, and not through her from
A., the said one-half of the lands
descended to her from A.; that C.
was thereupon seized in fee of the
entirety of the lands, and at his
death they descended, the one-half
he had inherited of his father, A., to
the paternal uncles and aunts of C.,
and the one-half he had inherited
from his mother, B. to his maternal
uncles and aunts. Murphy et al. v.
Henry et al......

..442

vorce...

Same-Marriage Declared Void.-
A party who innocently contracts a
marriage with a woman who is the
wife of another, believing her to be
unmarried, may, by judicial decree,
have the marriage declared void..Ibid.
· Power to Declare
Jurisdiction.
Marriage Void.-Independent of the
provisions of the divorce law, the
circuit courts of this State have
jurisdiction to declare a marriage
.....Ibid.
void

Right to Jury Trial.-It is discre-
tionary with the court to allow cr
refuse a jury trial in a divorce case.
......76
Leffel v. Leffel....

Effect of Verdict.-The court is not
absolutely bound by the verdict of
a jury in a divorce case, but may dis-
regard the verdict and determine the
....Ibid.
case for itself...

ELECTION.

See CRIMINAL LAW, 12.

2. Conversion.-Instruction to Fury. Where a party is charged with having converted personal property in his possession to his own use, it is error to instruct the jury that the evidence of conversion must amount to more than a preponderance, for the reason that the charge involves the moral turpitude of the crime of larceny, and that the evidence must sat isfy the jury of the truth of the charge beyond a reasonable doubt.......Ibid.

1. Distinguishing Mark on Ballot.-
The words "Republican ticket,"
printed at the head of a ballot, and
on the same side that the names of
candidates are printed upon, is not
such a distinguishing mark or em-
bellishment as to require the inspec-3.

tor of an election to refuse the ballot when offered. Stanley v. Manly..275

ESTOPPEL.

See HUSBAND AND WIFE, 3.

Exclusion of.-Bill of Exceptions. No question in relation to the exclu sion of evidence can be presented to the Supreme Court without a bill of exceptions showing an offer to introduce the excluded evidence. ham et al. v. Henderson............195

Gra

Declaration of Co-Defendant.—In a suit against several persons as partners or joint contractors, declarations made by one defendant to another, in the absence of the plaintiff, as to the terms of the contract, are inadmissible in evidence for the defendants. Ibid.

Resident of Township.-Constitutional Law.-The constitution requires that a person shall have a residence in the township where he offers to vote, without prescribing any period of residence; and the require. 4. ment of a residence in the township of twenty days in section one of the act of 1867 (3 Ind. Stat. 234) and section six of the act of 1869 (3 Ind. Stat. 236) is unconstitutional. Quinn v. The State........ ...485 5. Partnership.-Where several persons are sued as partners, and there is an answer of general denial, the evidence must show that the defendJoint Contractors.—Where several ants were partners...............................................Ibid. are sued as joint contractors, and the evidence shows that some are not liable, it is a failure of proof, and not a mere variance, and a finding against all is erroneous.. Ibid. Admissions.--If a statement is made in the hearing of one, in regard to facts affecting his rights, and he makes a reply wholly or partially admitting their truth, then the declaration and the reply are both admissi ble in evidence as his admission. Pierce v. Goldsberry...............................................317

To constitute an estoppel it must ap:6. pear that the party insisting upon it parted with some right or invested money upon the faith of the acts of the other party. Cox v. Vickers...27

EVIDENCE.

See CRIMINAL LAW, 1, 2, 3; FRAUDU-
LENT CONVEYANCE, 5; JUSTICE of
THE PEACE, 3; PLEADING, 4; PRIN-
CIPAL AND SURETY, 3; PROMISSORY
NOTE, 2, 4; RAILROAD, 2; SALE, 4;
SUPREME COURT, 8, 9; WILL, 2, 4;
WITNESS.
Memorandum.
NEELY, 383.

See SKILLEN v. Mc- 8.

Same.-If a statement is made in the hearing of one, in regard to facts affecting his rights, and he makes no reply; if he hears and understands the statement, and comprehends its bearing, and the truth of the facts stated is within his own knowledge, and he is in such situation that he is at liberty to make a reply, and the statement is made under such circumstances and by such persons as naturally to call for a reply, if he did not intend to admit it, the statement is

ted copy of his appointment; 6th.
That the will of the testator has been
..Ibid.
duly probated.....

Executor de son tort.-Liability.-
Will.-Widow.-By the terms of a
will the estate was given to the wid-
ow of the testator "for her own use
and benefit or maintenance during
her natural life," and at her death all
of said property "not used for her
maintenance during her natural life"
was given to another person. A per.
son acting under her direction sold
a horse and some hogs belonging
to the estate and paid some debts of
the estate with part of the proceeds,
purchased supplies for the use of the
widow with another part, and put
the remainder at interest for her.
Held, that the widow could not sell or
authorize the sale of the property,
and the person so acting under her
direction became an executor de son
tort. Leach, Ex'r, v. Prebster...415
Same.-The executor, as well as a
creditor, may sue an executor de son
Ibid.
tort

1. Pleading.-Complaint by Executor.
A complaint by an executor need not
allege the death of the testator, or
show an appointment of executor.
It is sufficient if it appear from the
statements of the complaint that the
plaintiff sues in his representative ca-
pacity. Kelley v. Love, Ex'r.....106
2. Same.-Capacity of Executor to
Sue. The question of the capacity
of an executor to sue can only be
raised by a sworn answer.........Ibid.
3. Sale of Real Estate by Foreign Ex-7.
ecutor.-Bond.-In a proceeding for
the sale of real estate in this State by
a foreign executor, the sale is to be
authorized in the same manner, and
upon the same terms, as in the case
of an executor appointed in this
State, except that if it is shown that
sufficient surety for the application
of the proceeds has been given in
the state or county where the execu-
tor was appointed, and a duly au
thenticated copy of such bond is filed
in the court where the petition is
made, no further bond will be re-
quired. Rapp et al. v. Matthias..332
Petition for Sale of Real Estate by
The petition
Foreign Executor.

must show: Ist. What amount of
personal property, if any, has come
to his hands; 2d. The amount of the
debts outstanding against the estate
of the deceased, so far as the same
can be ascertained, and the insuffi-
ciency of the personal estate to pay
the same; 3d. A description of the
real estate of the deceased liable to
be made assets, showing the state and
county where the same is located;
4th. The names and ages of the
heirs, legatees, or devisees of the
deceased; 5th. That the executor
has filed in the court an authentica-

Same.-An exectutor de son tort is entitled to credit for debts paid by him on account of the estate, where there are sufficient assets to pay all the debts; otherwise, in proportion to the amount of the assets as compared with the debts of the estate...... Ibid. Parties.-Breach of Covenant of Seizin.-A., having no title, the title and possession being all the time in C., sold and conveyed, by deed with full covenants, certain land to B., who afterwards died.

Held, that after the death of B. the right of action for the breach of the covenant of seizin was in the executor or administrator. Burnham v. Lasselle......... .425

EXPERT.

See WITNESS, 4 to 8.

FALSE IMPRISONMENT.

See MALICIOUS PROSECUTION, 2.

Pleading.-An action for false im. prisonment can be maintained without alleging in the complaint that the

FERRY.

regarded and treated by the parties as personal property and were not to pass by the deed, though no verbal agreement or condition which would defeat the estate, can be shown. "If the jury find, from the evidence, that the mill was affixed to the land which the defendant conveyed to the husband of the plaintiff at the time the land was conveyed by deed, then, unless the defendant has shown that the deceased husband in his lifetime sold, conveyed, or in some way disposed of the mill, it will be their duty to find against the defendant, as to the mill, whatever you may find that it was worth at the death of the husband."

Franchise Lost by Non-User.-The right of ferriage may be lost by nonuser. City of Jeffersonville v. The Ferryboat John Shallcross et al...19 Same.-Assignce.-A party who, by non-user, has lost his franchise, cannot transfer any right by convey-Held, also, WORDEN, J., dissenting, ance or assignment........

FIXTURES.

See MORTGAGE, 3.

.Ibid.

Where land is sold and conveyed, having situate upon and attached and affixed to it a steam saw-mill and machinery, if there is no reservation of the mill and machinery, they will be regarded as a part of the realty, and will pass to the grantee by the conveyance. Pea v. Pea..........387 Reservation.-Where the plaintiff claimed that a saw-mill and machinery, situated on a tract of land sold by the defendant to the plaintiff's husband, since deceased, was sold and passed by the conveyance, and the defendant claimed that it was expressly understood and agreed, at the time the deed was made, that the mill was not sold, and was not to pass by the deed, the court instructed. the jury as follows: "Conditions in a deed which the law does not imply must be expressed in the deed, and no verbal condition is valid which, either prevents the estate from vesting or divests it.

"No contemporaneous verbal agreement can be set up to contradict a written agreement, but the consideration of a deed may be contradicted or explained by parol; and contemporaneous verbal agreements that things which would otherwise pass as movable fixtures with the freehold were

Held, that the giving of these instruc

tions was error.

that the court should have instructed the jury (having been so requested by the defendant), that if at the time the deed was executed, the mill, boiler, engine, and fixtures pertaining thereto were treated and regarded by the vendor and vendee as personal property, and not intended to pass by the deed, they remained the property of the vendor, although not expressly excepted in the deed; and in determining the intention of the parties in that regard, the jury have the right to consider the nature and uses of such property and the previous and subsequent acts and declarations of the parties in relation there

1. Sale.-False Representations.—Complaint on a promissory note. Answer in several paragraphs, the third alleging that the note was obtained by fraud. Upon the trial, the court instructed the jury as follows: "The defendants in the third paragraph of their answer set up, in substance, that the note sued upon was obtained through the fraud and false represen tation of David W. Champer, the assignor of said note, in this, that the same was given in part consideration of a stock of goods purchased by defendants, McFaddens, of the said Champer; that said Champer at the

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Reports of Cases Argued and Determined in the Supreme Court of ..., Volume 35