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the commissioners, the supervisor of salo for the payment of the dece-
the proper road district opened and dent's debts the land so set apart to
improved the road, thirty feet in said children and heirs at law, that
width, as a public highway, and it the widow and heirs were not cs-
was continuously thereafter kept, topped by the proceedings in the
maintained, and used by the public partition suit from denying that the
63 a public lighway, in the same husband died seized in fee of a moi-
place and of the same width, with ety of the land, or from asserting
the knowledge and consent of the the truth in relation to the title. Ibid.
owners of said lands, for more than 3. Wife's Separate Real Estate – Con-
tract.-In this State, in order to en-
IIcld, that these facts showed the ex- force the contract of a married wo-
istence of a public bighway by man against her separate real estate,
..Ibid. her intent to deal with the property
4. Vacation of:--Town.—The corpor- must appear, and may not be az-
ate limits of a certain town extend- sumed, and the contract must be onc
ed to and along the middle of a from which benefit results to the
county road, thirty feet in width, lo- property. Kantrowitz et al. 5. Pra-
cated before the town was laid out. ther et ux.......
lleld, that the board of trustees of the 4. Same.--- Profits of Real Estate.-So
town had not power under the ninth far as the profits of a married wo-
clause of section 22 of the act for man's real estate are concerned,
the incorporation of towns, 1 G. & effect will be given to her contract
H. 624, to vacate so much of said where she has indicated her purpose
highway as was within the corporate to deal with such profits......... Ibid.
Ibid. 5. Same.- Protecting Supervision of
Chancery. It must appear that any
contract relating to the property of
a married woman, which it is sought
See CRIMINAL LAW, 14, 15, 16, 28, 31, to enforce in equity, is conscionable,
36, 41, 43 to 47.
and where it relates to the better-
ment of lier real estate, that it is
HUSBAND AND WIFE.
reasonably calculated to promote
Sce VOLUNTARY CONVEYANCE, 2, 3. 6. Same.- Intent.— The fact that
credit for goods sold to a married
1. Conveyance to Ilusband and Wife.- woman is given her upon the faith
Survivorship.- Where real estate is of her separate property, is not sufi-
conveyed in fee simple to a man and cient to create a charge against her
his wife, upon the death of the hus- land or its income; she must also
band he leaves no estate in such herself intend to contract with re-
land subject to the payment of his gard to her separate estate......Ibid.
debts, or that descends to his heirs; 7. Same.— Wife's Power over her Real
but the widow becomes seized of the Estate A married woman has, in
wholo cstato to her sole usc, by vir- this State, whatever power is inci-
tue of her right of survivorship. dent to a complete holding and full
Simpson et al. v. Pearson, Adm'r....1 enjoyment of her separate real es-
2. Same.--Estoppel.-Where, at the tate, with a restriction upon her
suit of a widow against the children power to incumber or alienate the
and heirs at law of her husband for same. Lindley et al. v. Cross it
partition of land conveyed to the
husband and wife jointly, in accord- 8. Same.— Improvement of her Real
ance with thic prayer of the petition Estate.- Where an improvement
a moiety was set off to the widow made by a married woman upon her
in her own right and the other real estate is necessary and proper
moiety was divided between the for a full and complete cnjoyment
widow and children as land de- of such real cstate, she can charge
scended to them from the husband; her separate property with debts
lleld, in a suit by the administrator of created in making the improve-
the husband's cstatc, to subject to ment.........
9. Same.-Court's Protecting Control. d'encc.--A married woman carried
The power of a married woman to on the business of a clothing mer-
make new improvements upon ber chant in her own name, employing
real estate, for the purpose of pre- her husband as a clerk, the money
venting its abuse, is under the con- invested in the business having been
trol of the court trying the cause received by her during coverture,
involving the liability of her sepa- through a trustec, as a gift from her
rate property to answer for the debts brother, to be invested in such busi-
so created......... .........Ibid. ness, and when so invested to be
10. Same.-- Pleading. - Mechanic's under her sole control, the business
Lien.-A complaint to enforce a to be carried on in her name and for
material-man's lien for lumber fur- her sole use and benefit, and in the
nished to crect a dwelling house up- event of her death the money to go
on the separate real estate of a mar- to her children by her said husband.
ricd woman, the portion relating to IIeld, that personal property purchased
the lien showing an insufficient no- by her with the proceeds of said
tice, was held bad on demurrer, for business was not subject to the debts
want of averment that the dwelling of her said husband.
house was necessary and proper for Held, also, in a suit by such married
a full and completo enjoyment by woman to recover such personal
the married woman of the real es- property, levied upon under an exe-
tate in question..... .............Ibid. cution issued on a judgment against
11. Contract.-Our statutes do not her said husband, that there was no
change the rule of the common law, error in admitting in cvidence &
so far as it applies to the contracts written agreement between her said
at large of it married woman, that brother and said trustee, under
slic is incapable of binding herself which the money was advanced to
by an executory contract, and that her, its cxecution having been
all such contracts made by her, proved. Bellows et al. v. Rosen-
whether in writing or by parol, are thal......
absolutely void at law." O Daily v. 15. Same.-Rents and Profits.-Tho
.111 ruling in Kantrowitz v. Prather, an-
12. Same.- Promissory Notc.-A mar- te, p. 92, adhered to. Copeland v.Cun-
ricd woman carrying on a business ningham et ux...
in her own name and living with 16. Duress.-Much less force or put-
her husband, whom by a written ting in sear by a husband will amount
instrument she had made her agent to coercion which will avoid the
to manage her business, borrowed deed of his wife than would be nec-
for her own use a sum of money, essary coming from a stranger. Rich-
which was delivered to her person- ardson v. Ilittle..........
ally, for which she and her husband 17. Same.- Wife's Separate Property.
cxecuted a promissory note, the Mortgage.-Suit upon a note paya-
payee relying on her for its payment. ble in bank and a mortgage to secure
Held, in a suit on the note, after the the same, executed by husband and
woman had been divorced from her wife and assigned to the plaintiff.
said husband and while she was still Answer by the wife, showing that
unmarried, that she was not person- the note and mortgage were given
ally liable on the note............ Ibid. for the debt of the husband, and
13. Wife's Separate Property.- Part- that the land mortgaged was the
ner.- A married woman cannot bind separate property of the wife, and
liersclf as the partner of her hus- averring, "that she was induced by
band; nor do the facts that she holds the persuasions of said payee and
herself out as such partner and that the cocrcion of her said husband to
her property gives credit to the pre- execute said note and mortgage."
tended firm, charge her property Teld, that the answer was bad on de.
with an indebtedness contracted by
such firm in the course of trade. 18. Trife's Separate Real Estate.-
Montgomery it ux. v. Sprankle et Contract.-In this Statc, a married
..113 woman can charge her real estate
14. Same.- Ilusband's Debts.--Evi- by such contracts only as are rea-
sonably calculated to make the cs- tain person by an Indian treaty;
tate profitable to her, or to preserve and after the death of the grantec
it, or to protect her title thereto. the proper court, upon petition of the
Smith v. Howe et uz.................233 guardian of the grantec's heirs at
19. Same.--A married woman who law, ordered the sale of the unloca.
owns real estate in her own sepa- tcd section; and, the land having
rate right and is in the habit of mak- been located by the assignee of the
ing contracts in her own name purchaser at such guardian's sale,
without the co-operation of her hus- the proper court ordered a conver-
band, who has abandoned her and ance of the specific land to such
is residing in another state, cannot assignee, which was made, but nerer
charge such real estate by her writ- approved by the President.
ten agreement to pay a certain sum Held, that, by the doctrine of relation,
to a third person if he will tell her the treaty operated instantly in law
the whereabouts of her husband so as a grant, the subsequent location
that she can find him..............Ibid. of the land merely ascertaining the
20. Agency of Husband.-A man specific thing which was granted.
loaned money belonging to his wife, Held, also, that the approval of the
taking notes therefor in his own President was not necessary to the
name, but declaring at the time, that validity of the guardian's deed of
it was his wife's money, and after- conveyance. Dequindre et al. v. IFil-
wards kept the notes distinct from liams....
those received on the loan of other 2. Same - Case Stated.-Suit by the
funds. The administrator of the heirs at law of A. against B., to re-
husband's estate took possession of cover certain real estate. Trial upon
such actes as a part of the estate, the following agreed statement of
with notice of the wife's claim there- facts: A section of land was granted
to, and collected the money thereon. by treaty with the Potawatamics, of
TIсld, that the administrator was liable October 16th, 1826, to A., to be lo-
to the wife for the money so collect- cated under the direction of tho
cd. Fowler v. Rice......... ..258
President. It was located, in 1837,
in Allen county, without the terri-
tory ceded by the Indians under
said treaty, the premises in contro-
versy being a part of that section.
In 1828, A. died, in Illinois, where
Term of. See CRIMINAL LAW, 23. he then resided, leaving a widow
and children surviving him, tho
continued to reside in Illinois until
1831, when they removed to Knox
Sec MORTGAGE, 1.
county, in this State, prior to which
they had no property in Indiana,
except the unlocated land. It ap-
peared by the record of certain pro-
See REPEAL OF LAWS, 1, 2. ceedings in Knox county, that on
the 10th of August, 1829, the court
doing probate business, held by the
Associatc Judges, appointed a guar-
See PRACTICE, 3; VENDOR AND PUR- dian of A.'s children, the plaintiffs
in this action, and that there being
no property," no bond was required.
The bond required by law was to be
in double the value of the personal
See CONTRACT, 8.
property. On the following day, the
guardian presented his petition to
sell the unlocated section, and, after
an appraisement at $800, the sale
1. Grant.- Relation.-A section of land, was ordered, the guardian to gire
to be located under the direction of bond with sureties approved, within
the President, was granted to a cer- thirty days, but no such bond ap-
peared in the transcript of the pro- clerk from collecting or transferring
ceedings. The sale was to be pri- such fees yet unpaid, and the sheriff
vate, for one-half cash and the bal- from paying such fees collected by
ance in two cqual annual instal- him to the clerk; and a receiver
ments. In August, 1839, tlic guar- may be appointed. Cheek et al. v.
dian reported to the Probate Court, Tilley
that in November, 1831, he had sold 2. Pleading.- Amendment.-An amend-
the float for $1,000 to one who trans- ment called a "supplemental com-
ferred his right to another, and he plaint," but containing no supple-
to C., who paid the purchase-money mental matter, was filed by the
and after having procured the land plaintiff, over the defendant's objec-
to be located, died; the report de- tion, before answer, in a suit for an
scribing the section located. The injunction in which a restraining
Probatc Court confirmed the sale order had been granted.
and directed a conveyance of the Held, that there was no error..... Ibid.
specific land to the heirs at law of 3. Motion to Dissolve.-Jotion based
C., which was accordingly delivered, upon affidavits, to dissolve an in-
but was never approved by the Pres- junction before answer. The de-
ident. The title of C. and his heirs fendant in his affidavit did not deny
afterwards became vested in B., who, certain equities of the complaint,
with his grantors, paid taxes on the and so much of the complaint essen-
land and took care of and protected tial to the injunction as he denied
it from 1849, though not in actual was supported by other affidavits.
possession, till the commencement | Teld, that, under the chancery practice,
of this action, in 1865. From its the injunction should not have been
location in 1837 till 1841 it was dissolved, and that the code does not
worth $30 per acre. From January, change the former rule on that sub-
1829, till 1840, the United States, it ject
was admitted, lield public lands in 4. Nuisance.- Obstructing Highway.-
Knox county and elsewhere in this A private person cannot enjoin the
State and other states. Upon this obstruction of a public highway
cvidence the court found for the without showing a special and pecu-
liar injury to 'himself, not common
lleld, that the cvidence sustained the to the public. The fact that the
..Ibid. injury to such person is greater in
degree than that to others does not
entitle him to such relief. The in-
jury may be to more than one per-
See CriminAL LAW, 4, 5, 11, 49, 50; son, but must not embrace the entire
FORCERY, 1, 2.
public. McCowan et al. v. White-
5. Same.-In a complaint to enjoin
the obstructing of a public highway,
See CRIMINAL LAW, 1, 2, 9, 10, 17. the only averments connecting the
plaintiff's with the highway were,
that it is their usual, convenient,
and necessary route of travel from
Sce MONTGAGE, 1; TURNPIKE, 3. their houses, which are all on, or in
the vicinity of, the road, to their
1. County Clerk.- Deputy:--Compen- market town and usual place of
sation of.- A county clerk may con- business; and that without greater or
tract with his deputy that the latter less circuity, when the road is so
for his compensation shall have a obstructed, they and each of them
certain share of the fees taxed and have no other means, nor have the
collectable in the clerk's office dur- public wishing to use the road, of
ing his deputyship; and in a suit going to and fro, as they have a
by such deputy against his principal right to do, for business, comfort,
to recover the former's share of such and plcasure."
fees, an injunction may be granted, Held, that the complaint was bad on
pending the causc, restraining the demurrer
INJURIA SINE DAMNO. 6. Same.- Voluntary Drunkenness.-
Continued Drunkenness.- Voluntary
See RESCISSION, C.
drunkenness is no excuse for the
commission of a crime, but insanity
produced by continued drunkenness
is a good defense in a criminal ac-
1. Criminal Law.- Where a persou is tion......
moved to the commission of an un-| 7. Same.- Hereditary.- Evidence. -
lawful act by an insane impulse, con- Evidence of the insanity of the
trolling his will and his judgment, mother and uncle or other relatives
he is not guilty of a crime; and if of the defendant in a criminal case
he is a monomaniac on any subject, must be disregarded, if there be not
it is wholly immaterial upon what other evidence tending to show that
subject, so that the insane impulse he was himself insane at the time
leads to the commission of the act. he did the act charged............ Ibid.
Stevens v. The State......... ..485
2. Same.--Knowledge of Right and INSTRUCTIONS TO JURY.
Wrong. On the trial of an indict-
ment for murder in the first degree, See Criminal Law, 25 to 29, 36, 42;
the court instructed the jury, that if PRACTICE, 11.
they believed from the evidence
"that the defendant knew the dif-1. Conflict of.--An erroneous instruc-
ference between right and wrong in tion to the jury in a criminal case
respect to the act in question, if he cannot be corrected by another in-
was conscious that such act was one struction which states the law accu-
which he ought not to do, and if rately, unless the erroneous instruc-
that act was at the same time con- tion be thereby plainly withdrawn
trary to the law of the State, then from the jury. Bradley . The
he is responsible for his acts."
Ileld, that this is not law.........., Ibid. 2. Same - Extracts from Books.-
3. Same.-So far as a person acts The law which goes to the jury from
under the influence of mental dis- the court should be given as law,
case, he is not criminally account- unquestioned by authorities extract.
able; and the jury in a criminal ed from books..........
case must be satisfied beyond a rea-
sonable doubt of the defendant's
mental capacity to commit the crime
.... Ibid. See ATTORNEY; PrincipAL AND SCRETY.
4. Samc.--Evidence.The defendant 1, 2.
in a criminal case is not required to
prove his insanity in order to avail 1. Rate of upon Jurigments. The act
himself of that defense, but merely of 1867, increasing the maximum
to create a reasonable doubt on this rate of interest to ten per cent., when
point, whereupon the burden of that rate is provided for by contract
proving his sanity falls upon the in writing, does not affect the third
state. Bradley v. The State...... 492 section of the act of 1861, enacting,
5. Same.-- Cognitive and Conative that "interest on a judgment, or
Faculties.- Insanity is a disease decree for money, shall be from the
which may impair or totally destroy date of signing until the same be
either the understanding or the will, satisfied, at the rate per cent. agreed
or both; and in a criminal case all upon by the parties in the original
symptoms of such disease and its contract, not exceeding six per cent,
effect upon these faculties should go and if there was no contract by the
to the jury, and they must deter- parties as to interest, then at the
mine, as a matter of fact, the men- rate of six dollars a year on one
tal condition of the defendant; and hundred dollars." Smith v. Thom-
an instruction to them wbich limits
their inquiry to the condition of the 2. Same.-Suit on a promissory note,
power to apprehend by the under- dated April 8th, 1868, and provid-
standing is crroneous............. Ibid. ing for the payment of interest at