Distinguished from larceny, see LARCENY, 8; Williams v. State,
FEES AND SALARIES-
See OFFICERS; STATUTES, 17-19.
See CONSTITUTIONAL LAW, 14-16; Hargis v. Board, etc., 194, 196
(3); Board, etc., v. Lindeman, 186, 188 (1), 189 (2).
Constitutionality of fee and salary law of 1903, see CONSTITU-
TIONAL LAW, 2; Board, etc., v. Lindeman, 186, 190 (5).
Setting of, by railroads, see PLEADING, 67-70; Lake Erie, etc., R.
Co. v. McFall, 574.
Of gas-and-oil leases, see LANDLORD AND TENANT; Logansport,
etc., Gas Co. v. Seegar, 1, 3 (1).
Misconduct may defeat parent's right to custody of child, see
PARENT AND CHILD, 3; Gilmore v. Kitson, 402, 407 (5).
Facts must be alleged, see PLEADING, 36; Ray v. Baker, 74, 83 (1).
In procuring insurance policy, see EVIDENCE, 22-26; Haughton v.
Aetna Life Ins. Co., 32.
Relation to larceny, see LARCENY, 4; Williams v. State, 472,
475 (3).
1. Bills and Notes. - Mortgages.
- Where
plaintiff's assignor procured the defendant husband to execute
a note and mortgage for $1,560 by a false representation that
such note was for only $791, the amount really due, and such
defendant was illiterate, unable to read such note and mort-
gage, and relied upon such assignor in the transaction of such
business, such assignor was guilty of a positive fraud; and such
defendant's failure to get some one to read such note and mort-
gage before execution will not alone bar relief.
Ray v. Baker, 74, 85 (5).
False Representations.-Contract Induced Thereby.-Relief.—
Where defendants were induced, by the false representations of
plaintiff's assignor, to enter into a contract injurious to them-
selves, the plaintiff will not be permitted to enforce such con-
Ray v. Baker, 74, 88 (6).
Parol contract for sale of real estate, see SALES, 4; O'Brien v.
Knotts, 308, 314 (5).
See SURETYSHIP AND GUARANTY.
1. Sales.-Animals.-Specific Purpose.-Where a vendor guaran-
tees a horse as suitable for a specific purpose and such horse
was at the time of the sale worthless for such purpose, the
purchaser's subsequent care of such horse can not affect the
vendor's liability on such guaranty.
Rosenthal v. Rambo, 584, 590 (4).
2. Fitness for Specific Purpose.-Privilege of Return if in Good
Condition. Where a vendor guaranteed a horse for a specific
purpose, giving the purchasers the privilege of returning, if
unfit for such purpose, provided the horse is "in as sound and
healthy condition as he now is," such purchasers may return
such horse though his condition be worse, if such condition was
caused by the natural course of diseases which such horse had,
in their incipient stages, at the time of such sale.
Rosenthal v. Rambo, 584, 592 (6).
3. Return of Property.-Objections.-Waiver.-Where a vendor
in his guaranty gave the purchasers of a horse the privilege of
returning such horse on April 1, 1898, if unfit for the purpose
for which he was sold, and such purchasers returned such horse
in November, 1897, and such vendor objected only because of
the condition of the horse, his right to object at the trial because
of a return at a wrong time is waived.
Rosenthal v. Rambo, 584, 593 (7).
GUARDIAN AND WARD-
Assumpsit lies in favor of ward against guardian for money re-
tained, see ASSUMPSIT; Roberts v. Smith, 414, 419 (3).
Three-year statute of limitations does not apply to action by ward
against guardian for money converted, see LIMITATION OF
ACTIONS, 3; Roberts v. Smith, 414, 419 (5).
1. Marriage of Female Ward.
- Statutes. By statute ($2690
Burns 1901, $2526 R. S. 1881) the marriage of a female ward
to a person of full age dissolves the relationship of guardian and
ward and requires the guardian, with the assent of the husband,
to settle with such ward.
Roberts v. Smith, 414, 418 (1).
2. Settlement.-Action for Balance.-An emancipated ward may
maintain an action against the retiring guardian personally o.
on his official bond for the balance due from such guardian.
Roberts v. Smith, 414, 418 (2).
3. Parent and Child.-Custody. The legal guardian can not take
the custody of a minor child from its father.
Gilmore v. Kitson, 402, 406 (4,.
Essentials of complaint in, to recover child, see PLEADING, 37;
Willis v. Willis, 325, 329 (1).
Res judicata available in cases of, see JUDGMENT, 4; Willis v.
Willis, 332, 339 (4).
Circuit Court has jurisdiction to enforce orders in any county in
State, see COURTS, 2; Willis v. Willis, 332, 338 (3).
1. Motion to Quash Writ.-Effect.-A motion to quash a writ of
habeas corpus, like a demurrer to a pleading, admits the truth
of the facts well pleaded in the petition therefor.
Willis v. Willis, 325, 329 (2).
2. Judgment.-Appeal.-Effect. Statutes.-Section 650 Burns
1901, $638 R. S. 1881, providing that a term-time appeal shall
operate as a stay of all further proceedings on the judgment
appealed from, does not give the defendant custodians of an
infant child the right of retaining such custody during such
appeal where the judgment awards the custody to another.
Garner v. Gordon, 41 Ind. 92, overruled.
Willis v. Willis, 332, 334 (1).
3. Judgment.-Appeal Bond.-Purposes.-An appeal bond, given
to perfect a term-time appeal in a habeas corpus case, does not
invest such appellant with the right to the custody of the sub-
ject-matter of the action, as against such judgment, but merely
stays the issuance of an execution on the judgment, such judg-
ment as to the custody of the subject-matter being self-execut-
ing.
Willis v. Willis, 332, 337 (2).
Husband and Wife.-Support.-Failure to Pay.-Collateral
Attack. The writ of habeas corpus is not available in behalf
of a husband, committed to jail for contempt of court because
of his failure to pay a decree for the support of his wife, unless
such decree is void.
Perry v. Pernet, 67, 69 (1).
Contempt.-Errors.-How Reviewed.—Errors committed by a
court in a case of contempt where the court has jurisdiction of
the parties and subject-matter can not be reviewed by the writ
of habeas corpus, but must be presented by an appeal.
Perry v. Pernet, 67, 70 (3).
Evidence of user of, see EVIDENCE, 17; Southern Ind. R. Co. v.
Norman, 126, 132 (6).
Use of by automobiles, see NEGLIGENCE, 1-3; Indiana Springs Co.
v. Brown, 465.
Twenty years' user of a way constitutes, see TRIAL, 32, 33; South-
ern Ind. R. Co. v. Norman, 126.
Supervisors liable to mandate to keep roads in repair, see MAN-
DAMUS, 4, 5; Rodenbarger v. State, ex rel., 685, 688 (5), 689 (6).
Liability of railroad company for placing hand-car on, see PLEAD-
ING, 63; Southern Ind. R. Co. v. Norman, 126, 127 (1).
1. On Township Lines. Repairs. Statutes. Under $86818,
6828 Burns 1901, Acts 1883, p. 62, §§5, 14, it is the duty of the
township on the west to work and keep in repair the north haif
of a highway situate on the line dividing such township from
the township on the east.
Rodenbarger v. State, ex rel., 685, 687 (1).
2. Supervisors.-Township Trustees. Statutes. Regardless of
the township trustee's orders, it is the duty of a road super-
visor to keep the roads in his district in good repair ($6818
Burns 1901, Acts 1883, p. 62, $5).
Rodenbarger v. State, ex rel., 685, 688 (2).
3. Eminent Domain. Statutes. Supervisors. Under $6830
Burns 1901, Acts 1883, p. 62, §16, it is the duty of a road super-
visor to enter upon adjoining or near-by lands and appropriate
gravel, stone, sand and wood necessary for the repair of the
highway and charge his township with the appraised value
thereof.
Rodenbarger v. State, ex rel., 685, 688 (3).
4. Supervisors' Duty to Keep in Repair. It is the imperative
duty of the supervisor to keep his roads in repair and if his
usual labor and tax is insufficient, or if no tax has been assessed,
he must call out the hands in his district and make repairs, the
township trustee having nothing to do therewith.
Rodenbarger v. State, ex rel., 685, 688 (4).
5. Use of.-New Conveyances.-New conveyances for travel on
the public highways are not prohibited by the law, but their
use must conform to reasonable methods insuring the largest
amount of enjoyment of the highway by the general public.
Indiana Springs Co. v. Brown, 465, 469 (3).
Negligence. The driver of an automobile,
using a public highway, must carefully operate his machine to
prevent needless injury, taking into consideration the character
of the machine, its appearance, noise, new use in the vicinity,
tendency to frighten horses and all other circumstances.
Indiana Springs Co. v. Brown, 465, 469 (4).
See EVIDENCE; INDICTMENT AND INFORMATION.
Continuance to secure evidence, see TRIAL, 56; Donahue v. State,
148, 159 (10).
As to self defense, see TRIAL, 22; Eby v. State, 112, 113 (1).
Trial judge not compelled to submit homicide case to jury when
plea of guilty to manslaughter is received, see CRIMINAL LAW,
6; State v. Morrison, 461, 464 (4).
Evidence that witness sold colored man the revolver with which
homicide was committed, admissible, see EVIDENCE, 1; Smith v.
State, 180, 182 (2).
Indictment for murder includes all grades of, see INDICTMENT AND
INFORMATION, 7; Gipe v. State, 433, 439 (7).
As to scruples of juror in inflicting death penalty, see JURY, 1;
Smith v. State, 180, 181 (1).
For complaint in habeas corpus by wife against husband, see
PLEADING, 37; Willis v. Willis, 325, 329 (1).
Wife is competent to testify that her child is illegitimate, see
EVIDENCE, 10; Evans v. State, ex rel., 369, 371 (4).
Disputable presumption that wife's children are husband's, see
BASTARDY, 3; Evans v. State, ex rel., 369, 376 (8).
HUSBAND AND WIFE-Continued.
Habeas corpus not available to get husband out of jail for con-
tempt in failing to pay decree for support, see HABEAS CORPUS,
4; Perry v. Pernet, 67, 69 (1).
Failure to pay decree for support renders husband guilty of civil
contempt, see CONTEMPT, 1; Perry v. Pernet, 67, 70 (5).
IMPEACHMENT-
See WITNESSES.
INDICTMENT AND INFORMATION-
Date of, in transcript imports verity, and court will not go back
of transcript to ascertain true date, see APPEAL AND ERROR, 72;
Terrell v. State, 443, 446 (2).
1. Charging in Language of Statute.-An indictment charging a
criminal offense in the language of the statute is sufficient.
State v. New, 571, 573 (2).
2. Good and Bad Counts.-Judgment.-Presumption.-A judg-
ment of conviction, upon an indictment containing good and bad
counts, is presumed, in the absence of the evidence, to rest upon
the good ones.
Donahue v. State, 148, 152 (6).
3. Separate Counts.-Aider.-Where the first count of an indict-
ment properly sets out the impaneling of the grand jury in the
proper county, and the second count recites that "said grand
jury further find and present," such second count is aided by the
first and is sufficient.
Donahue v. State, 148, 152 (4).
4. Motion to Quash.-Grand Jury.—Qualifications.—Abatement.
-Where an indictment purports to have been returned by a
legal grand jury, questions concerning the qualifications of its
members and of their being regularly charged and sworn, except
such as could have been presented by a challenge, if opportunity
had existed, can not be raised by a motion to quash the indict-
ment, but should be raised by a plea in abatement.
Donahue v. State, 148, 151 (2).
5. Grand Jury.—Adjourned Term.-Presumption.-Where the
proceedings relative to an indictment purport to have been held
at an adjourned term, the presumption is, nothing appearing to
the contrary, that such term was regularly held.
Donahue v. State, 148, 151 (2).
Grand Jury.-Convoking at Adjourned Term.-The fact that
the grand jury which returned the indictment was impaneled
at an adjourned term of the court is not a sufficient ground for
quashing such indictment. Wilson v. State, 1 Blackf. 428, dis-
tinguished.
Donahue v. State, 148, 150 (1).
7. Homicide.-Minor Degrees. An indictment for murder in-
cludes every degree of felonious homicide, and a conviction for
a lower degree of homicide can not be disturbed on appeal
though the proof shows murder. Gipe v. State, 433, 439 (7).
8. Homicide.-Manner of Death.-An indictment charging that
defendant committed the murder of decedent by ways and means
unknown to the grand jury is sufficient.
Gipe v. State, 433, 438 (4).
9. Murder. "Means Unknown."-An indictment charging that
the murder was committed "by means and ways unknown to
this grand jury" is good. Donahue v. State, 148, 152 (5).
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