takes to do is to be performed under the direction of the railroad
company's engineer, who is clothed with almost absolute authority
as to the manner in which it shall be done, the contractor is entitled
to pay for piling of the original length ordered by the engineer and
subsequently shortened at his direction, notwithstanding a provision
in the contract that the contractor is to be paid for the lineal feet of
piling actually used.
Ib.
5. Conveyance.-Married Woman.- Release of Inchoate Interest.-Considera-
tion.-Statute of Frauds.-The complaint in this case alleged that the
plaintiff's husband sold a tract of land belonging to him to the de-
fendant, the plaintiff joining in the conveyance; that the considera-
tion for the land and the conveyance was the promise of the defendant
to pay her five hundred dollars, it being agreed that he should sell
the land as soon as he could procure a purchaser and pay said sum
to plaintiff; that he had had frequent opportunities to sell the land
for its full value, but had neglected and refused to do so; that he
had refused to pay plaintiff the agreed sum; that he denied making
the promise, and claimed that he was under no obligation to pay her
any amount whatever.
Held, that the contract is supported by a sufficient consideration, is not
within the statute of frauds, and that the complaint is good on de-
Worley v. Sipe, 238
6. Same.-Estoppel.-A party can not deny the existence of a contract
and at the same time insist upon its terms as a defence.
7. Condition.-Construction.-Promise to Pay Money Upon Completion of Rail-
road to Certain Points.-The instrument sued on provided that the
money sought to be recovered should become due and payable when a
railroad should be built by a named company, and cars should be
run from Kirklin, in Clinton county, to Carmel, in Hamilton county.
It was further provided, that if said company should not construct
said railroad from the former to the latter place and run a train of
cars" to within one-fourth of a mile of Carmel within one year from
this date, in Hamilton county, Indiana, and also to Indianapolis, in
Marion county, Indiana, then this note shall be void.”
Held, that there can be no recovery on the promise, unless the railroad
was completed to both Carmel and Indianapolis within one year from
the date of the instrument.
Moore v. Campbell, 328
8. Insurance.-Compromise of Disputed Liability.- Rescission. When Neces-
sary Prior to Action on Original Obligation.-A recovery can not be had
upon a contract which has been released and surrendered in pursu-
ance of a subsequent contract, upon which an amount has been paid
as a compromise of a disputed liability upon the original obligation,
so long as the subsequent contract remains unrescinded and in force,
even though the compromise was effected by fraud.
Home Ins. Co. v. Howard, 544
CONTRIBUTION.
See JUDGMENT, 15.
See COMMON CARRIER, 3; JUDGMENT, 2; WILL, 1.
See CONTRACT, 5; DEED; FRAUD; HUSBAND AND WIFE, 2, 3; MORTGAGE, 8.
1. Trust.-Gift-Recovery of Possession.- Quieting Title.-Where the pur-
chasers of land have the legal title conveyed to another, who pays
no part of the consideration, the latter, in the absence of facts show-
ing a gift of the property, becomes a trustee for the purchasers, and
after a conveyance of the trust estate at the request of the beneficiaries
can not maintain an action to recover possession or quiet title.
Stringer v. Montgomery, 489
2. Same.-Evidence.- Written Instruments.-In such case it is proper to
show all the transactions between the parties, and the written instru-
ments relating to the acquisition and disposition of the property are
admissible in evidence.
Ib.
3. Same.--Married Woman.-Suretyship.—Trust Estate. The conveyance
by a married woman, to secure her husband's debt, of property held
by her in trust for him, is not invalidated by the statute prohibiting
her from entering into a contract of suretyship, as such statute ap-
plies only to property owned by her in her own right.
Ib.
See LIFE INSURANCE, 8; STATE UNIVERSITY.
Sale of Stock.-Implied Warranty.-There is no implied warranty on the
part of the vendor of certificates of stock, that the corporation issuing
them is a corporation de jure. If the corporation is a de facto one,
that is sufficient to relieve the vendor from any implied warranty as
to the existence of the corporation.
Harter v. Eltzroth, 159
See JUDGMENT, 10.
COUNTY.
See COUNTY COMMISSIONERS; GRAVEL ROAD, 5, 10, 11; SOLDIER'S
1. Treasurer.Agency.-Respondeat Superior.-A county treasurer is not an
agent of the county in such a sense that the maxim respondeat su-
perior can be invoked. His duties are prescribed by law, and in the
exercise of his office he is in no way subject to the control of the board
of county commissioners.
Vigo Township v. Board, etc., 170
2. Same.-Township Funds.— Defalcation of Treasurer.—Liability of County.—
A county treasurer is not the agent of the county in respect to funds
collected by him for townships, and, in the absence of a statute so
providing, the county is not liable to the townships for his defalca-
tions.
3. Same.-Trust.-Township Funds Credited to General Fund of County.-
The board of county commissioners has no control of the funds which
the law requires to be collected for and apportioned to the town-
ships, and occupies no relation of trust concerning such funds in the
treasurer's hands, unless they have actually been paid into the cor-
porate treasury, i. e., credited to the general fund of the county. Ib.
4. Same.-Auditor.- Warrants for Township Funds.-Create no Obligation
Against County.--In drawing warrants upon the county treasurer for
the funds in his hands belonging to the townships, the county auditor
does not act as the agent of the county, nor do such warrants create
any obligation against it.
5. Same.-Compromise of Suit Against Defaulting Treasurer.-Rights of Town-
ships.-Action Against County.-Where a suit has been instituted by
the county auditor upon the official bond of a defaulting county
treasurer, and a compromise is effected, whereby a certain part of the
amount converted is accepted in full satisfaction, a township which
suffered a loss to its funds by the defalcation is entitled to its pro-
portion of the sum recovered, but it can not maintain an action
therefor against the county, unless it is shown that the share belong-
ing to it has been covered into the county treasury to the credit of the
general fund.
Ib.
See COUNTY, 4, 5; MORTGAGE, 2; Office and Officer, 6, 7.
COUNTY COMMISSIONERS.
1. Authority to Build Jail and Sheriff's Residence.-The board of commis-
sioners of a county has authority to build a jail and a sheriff's resi-
dence in connection therewith.
Board, etc., v. Bunting, 143
2. Same.-Contract.—Plans and Specifications.-Right to Change.—Compensa-
tion.-Evidence.-Under a contract between the board of commission-
ers and an architect, by which the former, acting officially, has the
right to change the plans and specifications for the proposed building,
evidence of a request for a change, not specifying the character of the
alteration, by one member, acting individually, is not admissible in
a suit upon the contract for compensation.
COUNTY SURVEYOR.
See DRAINAGE; Office and OFFICER, 8.
COUNTY TREASURER.
See COUNTY; CRIMINAL LAW, 9 to 15; OFFICE AND OFFICER, 4.
CRIMINAL LAW.
See INTOXICATING LIQUOR; JUDGMENT, 10.
1. Former Jeopardy.-Plea of Guilty.-Dismissal.-Practice.-Where a de-
fendant is arraigned before a court of competent jurisdiction to hear
and determine the charge, and to adjudge the punishment affixed to
the offence, and pleads guilty, which plea has been entered and ac-
cepted, and all other steps required by law have been taken, so that
nothing further remains to be done except to assess the punishment,
he has been put in jeopardy, and can not again be put on trial for
the same offence.
Boswell v. State, 47
2. Same.-Assault and Battery.-B. was charged with assault and battery,
by a sufficient affidavit, duly filed. He was arrested on a proper war-
rant, brought before a justice of the peace having competent juris-
diction to try and determine the charge, and being required to plead
entered a plea of guilty, which was entered and accepted by the court
with the consent of the State, the prosecuting attorney being present.
Afterwards, the injured party being present, the defendant standing
on his plea of guilty, and demanding a hearing, the State volun-
tarily dismissed the prosecution;
Held, that such proceeding was a bar to any further prosecution of B. for
the same offence, he having been in jeopardy.
Ib.
3. Cruelty to Animals.-Domestic Fowl.-Statute Construed.-A domestic fowl
is an animal within the meaning of the statute on the subject of
cruelty to animals.
State v. Bruner, 98
4. Same.-Affidavit.-Ownership of Animal.-Immaterial Averment.-Descrip-
tion.-Proof.-In an affidavit charging cruelty to an animal, an alle-
gation as to the ownership of the animal is unnecessary; but where the
ownership is charged, it becomes a matter of description and must be
proved as alleged."
5. Same.-Necessary Averments.- Method of Torture and Effect Produced.-In
such an affidavit, the method of torture or mutilation, as well as the
effect produced, ought to be stated.
6. Same. An affidavit which avers substantially that the defendant "did
then and there unlawfully and cruelly torture, torment and needlessly
mutilate a certain animal, to wit, a goose, the property of some person
VOL. 111.-39
or persons to the affiant unknown, by then and there unlawfully tur-
pentining and burning in a cruel and wanton manner the said goose,"
sufficiently charges cruelty to an animal within the meaning of the
Ib.
7. Rape.-Penetration.-Under the statute, section 1806, R. S. 1881, the
slightest penetration, the other elements of the crime being present, is
sufficient to constitute rape.
Taylor v. State, 279
8. Same.-Circumstantial Evidence.-Penetration, like any other element of
crime, may be established by circumstantial evidence.
Ib.
9. Embezzlement.-County Treasurer.— Indictment.- Description of Funds.-
Under the act of 1883 (Acts of 1883, p. 106) it is not necessary to
the sufficiency of an indictment charging a county treasurer with
embezzlement that it should contain a particular description of the
different funds embezzled, i. e., whether county funds, school funds,
Hollingsworth v. State, 289
10. Same.-Proceedings Declaring Vacancy.-Admissibility in Evidence.-De-
fective Summons.-Upon the trial of a county treasurer, charged with
embezzlement, proceedings before the circuit judge, upon petition of
his sureties, wherein the office is declared vacant, are admissible in
evidence, notwithstanding the summons in that proceeding did not
state where the petition would be heard. If such a statement is re-
quired under sections 5538 and 5545, R. S. 1881, its omission is a mere
irregularity, not available collaterally.
11. Same.-Affirmative Showing of Error.-An objection to the admission in
evidence of the order of the judge declaring the office of treasurer
vacant, on the ground that no record of the proceedings appears to
have been made, is not available unless it affirmatively appears that
such record was not made.
12. Same.-Instructions.-Bill of Exceptions.-Supreme Court.-The mere act
of the clerk in copying into the transcript what purport to be in-
structions given by the court, but which are not made part of the
record by a bill of exceptions or otherwise, does not present them in
a manner authorizing consideration by the Supreme Court. Ib.
13. Same.-Excluding Documentary Evidence.-Showing of Error.-The Su-
preme Court can not determine that there was error in ruling out
offered documentary evidence if the instruments excluded are not in
the record.
Ib.
14. Same.-Embezzlement by County Treasurer.--Demand not Necessary to Estab-
lish.-A demand upon a retiring county treasurer by his successor for
the funds remaining in his hands is not necessary in order to establish
a conversion and embezzlement of such funds.
15. Same.-Evidence.-- Voluminous Records.-Expert Accountants.-In a pros-
ecution for embezzlement, or other crime, where the books, records,
papers and entries are voluminous, and of such a character as to
render it difficult for the jury to arrive at a correct conclusion as to
amounts, expert accountants may be allowed to examine such books,
etc., and testify to the result.
Ib.
16. Technical Errors.- Briefs.-Sufficiency of.—A judgment will not be re-
versed on account of technical errors which did not affect the sub-
stantial rights of the accused on the merits.
Ib.
17. Embezzlement.-Indictment.-"Employee." - Meaning of and Averments as
to.-The word "employee" has a well defined meaning, and in an in-
dictment for embezzlement against one employed by another, charg
ing him with having embezzled the funds of his employer, it is
sufficient to describe him as an "employee," without setting out the
facts constituting the employment.
Ritter v. State, 824
18. Same.-Supreme Court.-Practice.-Case not Reversed on Weight of Evi-
dence. In a criminal case the verdict will not be disturbed on appeal,
nor the judgment reversed, merely on the weight or sufficiency of the
evidence.
Ib.
19. Instruction to Jury.-Invasion of Province of Jury.-An instruction to the
jury in a criminal cause, to the effect that, under the evidence ad-
duced, if they find the defendant guilty, it is an aggravated offence,
and that they have the right to fix a proper penalty, is an invasion of
the province of the jury, and erroneous.
Roberts v. State, 340
20. Same.-Presence of Prisoner Throughout Trial.-In a criminal prosecu-
tion, where the offence charged is punishable by death, or by confine-
ment in the State prison or county jail, the defendant must be per-
sonally present during the trial, unless he in some way waives the
right, and if any substantial part of the trial is had in his absence
without his consent, notwithstanding the presence of his counsel, it
is such an error as requires a reversal of the judgment on appeal. Ib.
21. Same.-Instructing Jury Part of Trial.—Withdrawal of Erroneous Instruc-
tion.-Instructing the jury is a part of the trial, and if the jury, after
retirement, are called back into the court-room, and an erroneous in-
struction withdrawn or corrected by a statement of the court, in the
absence of the defendant, who is charged with a crime of the class
above mentioned, it is error.
22. Bill of Exceptions. -Agreement by Prosecuting Attorney Extending Time
of Filing. An agreement by the prosecuting attorney extending the
time for filing a bill of exceptions beyond the statutory limit of sixty
days allowed by the court (section 1847, R. S. 1881), is without au-
thority, and a bill thereafter filed is not properly in the record, and
presents no question.
Bartley v. State, 358
23. Conspiracy to Defraud.―Indictment.-Naming Parties to be Defrauded.—It
is not necessary to the sufficiency of an indictment charging a con-
spiracy to cheat and defraud "divers citizens of Randolph county
and the "public generally," by certain false and fraudulent repre-
sentations, that the names of the persons against whom the conspiracy
was directed should be set out.
McKee v. State, 378
24. Same. Character of Pretences.-Question for Jury.-In such a case,
whether the alleged pretences were of such a character as to impose
upon citizens of the community, as communities are actually consti-
tuted, is a question of fact for the jury to determine.
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Ib.
25. Same.-Protection of Weak and Credulous.-The purpose of the law is to
protect the weak and credulous from the wiles and stratagems of the
artful and cunning, as well as those whose vigilance and sagacity
enable them to protect themselves.
26. Same.-Renewal of Conspiracy.—After the joint design is once fairly es-
tablished, every act done in pursuance of the original purpose, whether
by one or more of the conspirators, or their agent, is a renewal of
the original conspiracy.
Ib.
27. Same.-Agent of Conspirators.- Declarations of. - Evidence.-One employed
as agent by conspirators, after their criminal undertaking is on foot, to
aid in the prosecution of their designs, may testify to false representa-
tions made by him and some of his associates while carrying forward
the business of the undertaking, although made in the absence of the
person on trial.
Ib.
28. Same.-Employment of Agent to Commit Crime.-Liability of Principal.—
One who employs an agent to assist in the execution of a criminal
act is as guilty of the acts of the person employed as if he himself
had performed them.
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