from the press, if there is no evidence tending to show that the ticket
was marked in this manner for the purpose of distinguishing it from
other ballots. Rutledge v. Crawford, 212.
See INJUNCTION, 1; MANDAMUS, 2; PHYSICIANS AND SURGEONS, 1.
EMINENT DOMAIN.
See RAILROAD COMPANIES, 31.
EMPLOYER AND EMPLOYEE.
See MASTER And Servant; Statutes, 11, 12
ENTIRETIES..
See HUSBAND AND WIFE, 1.
EQUITABLE ASSIGNMENT.
See TRADE-MARKS, 5.
See CREDITORS' SUITS, 4; EXECUTION, 8; Insurance, 47; Judgments, 1-3;
PHYSICIANS AND Surgeons, 8.
REPRESENTATION PROCURED BY FRAUD does not ordinarily create any estop-
pel, nor prevent the person making it from proving how it came to be
made, and that it is not true. McCaskill v. Connecticut Sav. Bank, 323.
Bee BANKS ANd Banking, 1, 3; CORPORATIONS, 14; Dower, 2; ELECTIONS
2; EVIDENCE, 1; HUSBAND AND WIFE, 13; INSURANCE, 25; Landlord
and Tenant, 1, 2; RAILROAD COMPANIES, 35.
1. STATEMENT SET OUT IN COMPLAINT ADMISSIBLE IN EVIDENCE. —
Where the plaintiff sets out in his complaint a certain sworn statement,
he cannot object to its being read in evidence by the defendant. Citi-
zens' etc. R'y Co. v. Robbins, 445.
2. JUDICIAL RECORDS OF OTHER STATES - AUTHENTICATION OF.
may authorize the reception in evidence of a judicial record of another
state, though it is not authenticated, as required by the acts of Con-
gress. Thrasher v. Ballard, 894.
8. EVIDENCE TO SHOW BIAS. Where the plaintiff is a land-owner suing to
recover for injuries suffered by the maintenance of a dam and reservoir,
the transfer to him from his grantor of all claims for damages accruing
to him while he owned the same land is not admissible for the purpose
of proving bias. Aldworth v. City of Lynn, 608.
4 PHOTOGRAPH OF SCENE OF RAILWAY ACCIDENT ADMISSIBLE IN EVI-
DENCE. It is not error to permit a witness to testify that a photograph
introduced in evidence is a correct representation of a railway crossing
at which an accident occurred. Miller v. Louisville etc. R'y Co., 416.
5. RES GESTE. — DECLARATIONS OF AN IGNORANT NEGRO WOMAN, made
from half an hour to an hour after she was injured, showing when,
how, and by whom the wound was inflicted, when she had not spoken
to any one after her injury, are admissible as part of the res gestæ,
after her death, on the trial of the person accused of killing her.
Lewis v. State, 720.
6. RES GESTA. TO CONSTITUTE DECLARATIONS A PART OF THE RES
GESTE, it is not necessary that they were precisely coincident with
the principal fact. If they sprang out of the principal fact, tend
to explain it, were voluntary and spontaneous, and made at a time so
near it as to preclude the idea of deliberate design, they may be re-
garded as contemporaneous, and admitted in evidence. Lewis v. State,
720.
7. Deed of TRUST - EVIDENCE TO CONTRADICT RECITALS. When a deed
of land is made to one as assignee, and recites that it was executed "for
and in consideration of the conditions of the assignment made this day
for the benefit of the creditors of the" grantor, the recital is conclusive
that the grantee took the property in trust, and not as a purchaser,
and cannot be contradicted by parol evidence showing an intent to
make an absolute conveyance of the property in payment of the debts
due the grantee and other creditors. McDermith v. Voorhees, 286.
See ABORTION, 2, 3; APPEAL AND ERROR, 8, 9; CARRIERS, 3; CORPORA
TIONS, 13, 15, 17, 18; FALSE PRETENSES, 13, 14; FORGERY, 5; FRAUD-
ULENT CONVEYANCES, 4; HOMICIDE, 4-7; INSURANCE, 4, 18, 28, 35, 59,
60; LARCENY, 6, 7; NUISANCE, 5, 6; RAILROAD COMPANIES, 19–34; Rape;
RECEIVING STOLEN Goods, 2, 6, 7; Replevin, 7; SALES, 5; TRIAL, 4, 5.
EXCEPTIONS.
See APPEAL AND ERROR, 1, 2.
1. RIGHT OF CREDITOR TO ASCERTAIN WHETHER PROPERTY IS SUBJEσt to.
-Under the Colorado statute, every interest in land, whether legal or
equitable, is subject to levy and sale under execution, and a judgment
creditor may by action determine the interest of the judgment debtor
in the property to be sold prior to the sale, and thus settle the title
in advance thereof. O'Connell v. Taney, 275.
2. CO-TENANCY ENTIRE CHATTEL SUBJECT TO LEVY UNDER EXECUTION
AGAINST ONE CO-TENANT. Replevin will not lie against an officer who
has levied upon, taken possession of, and advertised for sale an entire
chattel, the legal title to which is in co-tenants, under an execution
against one of them. The rights of the other co-tenant are not affected
in such case until the sale of the entire chattel. Burton v. Kennedy,
769.
8. EXEMPTION.
- ONLY THOSE ARTICLES SPECIFIED IN THE STATUTE can be
held as exempt from execution. Therefore, the bread-box of a peddler
of bread, however necessary to his calling, is not exempt, when it is not
specified in the statute among the things there enumerated as exempt.
Stanton v. French, 174.
THE WORD "HABITUAL," as used in a statute exempting
the horse and wagon by which a debtor habitually earns his living, does
not mean exclusively; and the fact that he may have, to a limited ex-
tent, applied his team to other uses, or that some part of his living may
have come from some other avenue of industry, cannot deprive him of
his rights as a peddler. Stanton v. French, 174.
5. EXEMPTION. PROPERTY PURCHASED BY A PENSIONER with moneys re-
ceived by him as arrears of his pension is exempted from execution, by
virtue of the statute of the United States declaring that "no sum of
money, due or to become due to any pensioner, shall be liable to attach-
ment, levy, or seizure by or under any legal or equitable process what-
ever, whether the same remains with the pension-office, or an officer or
agent thereof, . . . . but shall inure wholly to the benefit of such pen.
sioner." Crow v. Brown, 501.
6. FAILURE OF TITLE - DELAY IN DELIVEring Deed. Where the exist
ence of a mortgage against land sold under execution, but not its fore-
closure, is disclosed at the time of the sale, the purchaser is not relieved
from the payment of the amount of his bid, although between the time
of sale and of tendering the deed the equity of redemption has expired;
nor will the fact that the officer making the sale delayed longer than
the statutory period before tendering the deed relieve such purchaser,
unless he has been prejudiced by such delay. Stearns v. Edson, 758.
7. RETURN-STATUTE OF FRAUDS.-The return of an officer on an execu.
tion under which he sells real estate is a sufficient memorandum to
satisfy the statute of frauds. Stearns v. Edson, 758.
8. EXECUTION SALES-CAVEAT EMPTOR. — In sales of land under execution,
the officer making them is not a party who can be charged as vendor.
The rule caveat emptor applies, and on failure of title, the purchaser
has no relief from the payment of his bid except by resort to equity.
Stearns v. Edson, 758.
9. EXECUTION SALE OF UNDIVIDED INTERESTS IN LAND VOID WHEN, — A
sale under execution of two undivided interests in a tract of land, under
a joint judgment against the owners thereof, where such interests are
sold together, is void. Ballard v. Scruggs, 703.
EXECUTORS AND ADMINISTRATORS.
1. CORPORATE STOCK IS PERSONAL PROPERTY. - Shares of stock in a cor.
poration owned by a decedent at the time of his death are personal
property, and upon his death descend to his heirs at law, subject to the
right of his administrator to subject the same to sale in the manner
prescribed by the laws of the state. Citizens' etc. R'y Co. v. . Robbins,
445.
2 ADMINISTRATOR'S SALE WITHOUT COMPLIANCE WITH ORDER OF SALE
VOID. Where an administratrix obtains an order to sell shares of stock
belonging to her intestate at private sale on good security, but she sells
them upon the individual note of the purchaser without any security,
and on a credit of ten years, when she had no power to give a credit
exceeding twelve months, such sale is void and vests no title. Citizens'
etc. R'y Co. v. Robbins, 445.
3. TITLE TO PROPERTY SOLD BY ADMINISTRATOR Under Order of Court
PASSES WHEN. In cases of private sales by administrators, where the
order of the court does not require a confirmation, if the sale is made in
substantial compliance with the order of the court, the title passes to
the purchaser upon his compliance with the terms of the sale. Citizens'
etc. R'y Co. v. Robbins, 445.
4. SALES OF PERSONAL PROperty of Decedent must be Made in Manner
PRESCRIBED BY STATUTE. The common-law right of the administrator
to sell and dispose of personal property of his intestate does not exist in
Indiana. Sales of such property must be made in the manner prescribed
by its statutes upon the subject. In the absence of an order from the
proper court, the sale must be public, and where the sale is private,
under the order of the court, it must be made in substantial compliance
with the order. Citizens' etc. R'y Co. v. Robbins, 445.
5. PURCHASER IN GOOD FAITH NOT LIABLE TO DECEDENT'S ESTATE WHEN.
Where an administratrix sells shares of stock belonging to her intes-
tate's estate without complying with the order of sale, and the corpora-
tion whose shares of stock are thus sold illegally transfers such shares of
stock to the purchaser, one who in good faith, and without any knowl.
edge of the illegality in the surrender and cancellation of the original
shares of stock, purchases from said purchaser the new certificates of
stock is not liable to the estate of said intestate, but the remedy of such
estate is against the corporation. Citizens' etc. R'y Co. v. Robbins, 445.
See CONTRACTS, 11-14.
EXEMPLARY DAMAGES.
See DAMAGES, 6; RAILROAD COMPANIES, 10.
See ATTACHMENT, 1; EXECUTIONS, 3-5; SET-OFF; WITNESSES, 1.
1. FALSE PRETENSES BY Two-GUILT OF ONE WILL NOT SHIELD THE
OTHER. Where two persons conspire together to accomplish an unlaw-
ful purpose, and one, by false pretenses, obtains money from the other,
and parts with it in furtherance of the unlawful purpose, a prosecution
will lie against him, on the complaint of the other party, for obtaining
money under false pretenses, notwithstanding the guilt of the party
complaining. In re Cummins, 291.
2. FALSE PRETENSES OF EXISTING FACT. False representations that persons
named had in the past entered into an arrangement and agreement to
furnish money to pay the defendant's debts, by virtue of which he ob-
tained the signature of the defrauded party to a promissory note, are
indictable as false representations of an existing fact. State v. Switzer
789.
& FALSE PRETENSES SUFFICIENT TO DECEIVE- QUESTION FOR JURY. - The
question whether or not the false pretenses alleged were such as were
calculated to mislead a person of ordinary prudence cannot be raised
by demurrer, but must be determined by the jury under all the facts of
the case. State v. Switzer, 789.
4 PROMISSORY NOTE is within the meaning of a statute making it a crime
to obtain the money or other property of another by means of false pre-
tenses. State v. Switzer, 789.
5. Loss TO VICTIM NOT ESSENTIAL. - The gravamen of the crime of obtain
ing money or property by false pretenses is in obtaining a person's
money or property by means of such pretenses with intent to defraud
him, and does not depend upon the ultimate loss to the victim, or
whether in fact he sustains any pecuniary loss or not. State v. Switzer,
6. INDICTMENT - SUFFICIENCY. - An indictment for obtaining money or
other property by means of false pretenses, alleging that defendant
made such pretenses designedly and with intent to defraud, is sufficient
without alleging that he knew the pretenses alleged to be false. State
v. Switzer, 789.
7. ALLEGATION IN INDICTMENT that defendant obtained the signature to a
note by means of false pretenses implies a further allegation of the deliv.
ery of the note to him. State v. Switzer, 789.
8. INDICTMENT ALLEGING THAT Signature to NotTE was obtained by false
pretenses, and setting forth the note in full, need not allege that the
false making of the note was punishable as forgery. State v. Switzer,
789.
9. INDICTMENT ALLEGING THAT SIGNATURE TO NOTE was obtained by means
of the false pretenses alleged is sufficient, and a further description of
them as "inducements" and "representations" is surplusage. State
v. Switzer, 789.
10. INDICTMENT — Intent must be Alleged. — An indictment for obtain-
ing a signature to a note by means of false pretenses must allege that
such signature was obtained with design to defraud. State v. Switzer,
789.
11. INDICTMENT — SUFFICIENCY.
An indictment for obtaining money or
other property under false pretenses, framed in the words of the stat
ute, properly setting forth the pretenses and alleging their falsity, is
sufficient without averring that such pretenses were feloniously made.
State v. Switzer, 789.
12. SUFFICIENCY of INDICTMENT. - An indictment for obtaining goods by
false pretenses, charging that the accused, by falsely representing that he
had money in bank, thereby induced another to accept a check in pay.
ment for goods sold and delivered, is sufficient. An additional averment
that the accused represented that he would give a check different from
the one given, though unnecessary, is not an averment that he issued
such different check, and does not vitiate the indictment; and a further
averment, characterizing the check issued as "a false token" and “a
false writing" may be disregarded as surplusage, as it neither adds to
nor detracts from the material allegation charging the gist of the
offense. Barton v. People, 375.
18. EVIDENCE. —On the trial of an indictment for obtaining goods by false
pretenses, evidence that the accused agreed to pay cash, obtained from
a certain bank, for goods upon delivery, but that upon delivery he gave
the seller, without explanation, a check on said bank in payment, suffi-
ciently establishes that he obtained the goods by representing that he
had sufficient money in such bank to pay the check on presentation.
Barton v. People, 375.
14. EVIDENCE. -Under an indictment charging the obtaining of goods by
false pretenses, proof that the goods were in the possession of an agent
of the party defrauded, and named in the indictment as the owner, at
the time they were obtained by the accused, is sufficient proof of the
ownership of the goods, if the title of the party named is not disputed.
Barton v. People, 375.
FELLOW-SERVANTS.
See MASTER And Servant, 5.
FIRE INSURANCE.
See INSURANCE, 1–19.
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