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tain real estate described in the complaint. | prosecuting attorney, who is required to Issue was joined, and there was a trial, re- prosecute the offender to final judgment and sulting in a judgment in favor of the appel- execution, and who is allowed a commission lees and Sparklin, and Sparklin appeals to this of 10 per cent. on all moneys collected, and court. The appellants jointly assign as er- a docket fee of $10, to be taxed and collected ror-First, the overruling of the demurrer as costs. This proceeding was instituted in to the complaint; and, second, error in sus- the Washington circuit court by the prosetaining the demurrer to the answer of Anna cuting attorney, who filed a claim in the L. Sparklin. The first alleged error is not name of the state of Indiana, on his own rediscussed by counsel in their brief, and is lation, against the estate of John A. Bowtherefore waived. There is not a proper as- man, deceased, in which it was charged that signment of the second alleged error. The the decedent had given to the assessor of the defendant Anna L. Sparklin filed a separate township in which he resided a false and answer to the complaint, to which there was fraudulent list of his personal property, for a demurrer filed and sustained, and both of taxation in the years 1885 and 1886. The the appellants join in the assignment of er- administrator prosecutes this appeal from a ror that the court erred in sustaining the de- judgment assessing a penalty of $920 against murrer to said separate answer of Anna L. the estate of the decedent. It is insisted that It has been repeatedly held by this court that the cause of action died with the death of a joint assignment of error by several appel- Bowman; that it is not within the statute lants presents no question as to a ruling regulating the survivorship of actions; and against one of the appellants, and which con- that the court therefore erred in entertaining stitutes error against one only. Orton vit as a claim against the decedent's estate. Tilden, 110 Ind. 131, 10 N. E. Rep. 936; Hinkle v. Shelley, 100 Ind. 88; Robbins v. Magee, 96 Ind. 174; Boyd v. Pfeifer, 95 Ind. 599; Williams v. Riley, 88 Ind. 290; Feeney v. Mazelin, 87 Ind. 226; Eichbredt v. Angerman, 80 Ind. 208. There is no question presented for the decision of this court. Judgment affirmed, with costs.

(119 Ind. 555)

Qui tam actions at common law, which were in their essential characteristics the same as the one under consideration, were those given by act of parliament for the recovery of a penalty or forfeiture for the neglect of some duty, or the commission of some crime. They were recognized as civil actions or informations to recover the penalty, in the name of the sovereign, at the suit of an individual, who might prosecute as well for the

DAVIS v. STATE ex rel. LONG, Prosecuting king as for himseif. 1 Bac. Abr. 88. The

Attorney. 1

ACTION.

action was not to recover damages sustained by the plaintiff, but for penalties incurred by the defendant. They were in the nature of civil informations or suits, and the com

(Supreme Court of Indiana. June 21, 1889.) TAXATION-FRAUDULENT LISTING-SURVIVAL OF 1. Under Rev. St. Ind. 1881, § 6339, which im-mon-law remedy was an action of debt. Telposes a penalty, recoverable by the state on relation of the prosecuting attorney, for giving a false or fraudulent list of taxable personal property, a judgment cannot be recovered where the complaint does not allege, and the jury does not find, that the defendant owned the property which it is alleged

egraph Co. v. Scircle, 103 Ind. 228, 2 N. E. Rep. 604, and authorities cited; Durham v. State, 117 Ind. 477, 19 N. E. Rep. 327. Statutory. penalties are ordinarily in the nature of a punishment prescribed by law for the non-performance of an act, or for the per2. An action to recover such penalty will sur-formance of an act in an unlawful manner, vive against the personal representative of a deceased land-owner, under Rev. St. Ind. 1881, § 283, which provides, in effect, that all causes of action shall survive except for injuries to the person and for breach of promise.

he failed to list.

Appeal from circuit court, Washington county; T. L. COLLINS, Judge.

Action by the state of Indiana on the relation of Daniel H. Long, prosecuting attorney, against Leander G. Davis, administrator of the estate of John A. Bowman, deceased. Judgment for plaintiff. Defendant appeals. Alspaugh & Lawler, for appellant. Daniel H. Long, for appellee.

and in some cases the penalty stands in lieu of the act to be performed. San Luis Obispo Co. v. Hendricks, 71 Cal. 242, 11 Pac. Rep. 682. Penalty involves the idea of punishment, and, whether it is inflicted in a civil or criminal prosecution, its character is not changed. It may involve the payment of a sum of money or personal suffering. U. S. v. Chouteau, 102 U. S. 603; The Strathairly, 124 U. S. 558, 8 Sup. Ct. Rep. 609. Nevertheless debt lies for a statutory penalty, because the sum demanded is in the nature of a fixed or liquidated liability for a wrong done. Chaffee v. U. S., 18 Wall. 516; State v. Stevens, MITCHELL, J. Section 6339, Rev. St. 1881, 103 Ind. 55, 2 N. E. Rep. 214. Although imposes a penalty of not less than $50 nor by the common law the action was in the more than $5,000, upon any person who gives nature of a civil information, for a debt, qui a false or fraudulent list or statement of his tam actions or penal statutes were neverthetaxable personal property, which is required less designated as actions ex delicto, soundby law to be listed, when called on for that ing in tort, and were therefore within the purpose. It provides that the penalty may common-law maxim which declared that all be recovered in any proper form of action by personal actions were extinguished by the the state of Indiana on the relation of the death of the tort-feasor. The common-law 1 Rehearing denied.

rule prevails generally in the United States, |ing the right that an action should not surand actions to recover penalties prescribed vive, but it is not so provided, and the court by statute cannot be maintained against the cannot ingraft such a provision upon the statpersonal representative of a deceased wrong- ute by construction. In the absence of such doer, except in cases where the survivorship a provision, the case is controlled by the of such actions is controlled by statute. general statute governing the subject of the Schreiber v. Sharpless, 110 U. S. 76, 3 Sup. survival of actions. The authorities cited Ct. Rep. 423; Stokes v. Stickney, 96 N. Y. fully sustain this proposition. 323; Jones v. Vanzandt, 4 McLean, 604.

The judgment in the present case must, however, be reversed, because it is neither averred in the complaint nor found as a fact that the decedent owned the property which it is alleged he failed to list on the 1st day of April of any current year. The averments in the complaint are to the effect that the deceased gave to the assessor a false and fraudulent statement of the property owned by him in the years 1885 and 1886. This was not a sufficient averment. The law required the decedent to give a true and correct list of property owned by him on the 1st day of April of each year, and the penalties prescribed are for failing to make such a list as is required by law. Courts cannot create penalties by construction, but must avoid them by construction, unless the act for the doing or omission of which the penalty is claimed is brought clearly within the letter and the necessary meaning of the statute giving the right to the penalty. This is familiar law. Burgh v. State, 108 Ind. 132, 9 N. E. Rep. 75, and cases cited. The judgment is reversed, with costs.

(119 Ind. 473)

BOARD OF COMMISSIONERS v. STATE ex rel.
MICHENER, Attorney General.
(Supreme Court of Indiana. June 26, 1889.)
TAXATION-Delinquent TAXES.

It is provided by statute that "in all cases where actions survive, they may be commenced by or against the representatives of the deceased person to whom the interest in the subject-matter of the action has passed." Section 281, Rev. St. 1881. The statute also declares, in effect, that all actions which arise out of an injury to the person die with the person of either party, except in certain specified cases. Section 283 declares that "all other causes of action survive, and may be brought by or against the representatives of the deceased party, except actions for promises to marry." In Telegraph Co. v. Scircle, supra, the court, in giving a construction to this last section, said: "When it is granted, as it must be, that there is a cause of action, and that it is not for an injury to the person, it follows with absolute logical certainty that the cause of action survives by force of the statute." This reasoning is conclusive of the question in the present case. If there was a cause of action of a civil nature, to enforce a penalty incurred under the statute, existing at the death of Bowman, it survived against his personal representative by force of the statute. Jurists have found much difficulty in precisely defining a cause of action. Pom. Rem. § 432. Generally speaking, it is the right which a party has to institute and carry through a proceeding. And. Dict. Law, 157. "It may be said to be composed of the right of the plaintiff, and the obligation, duty, or wrong of the defendant, and these combined, it is sufficiently accurate to say, constitute the cause of action." Veeder v. Baker, 83 N. Y. 156. As we have seen, qui tam actions were recognized as civil actions at the common law, and although the action does not proceed altogether upon the theory of affording compensation to the state for an injury, there is nevertheless a right created by the statute in favor of the state, to recover for a wrong done; and the wrong committed, and the right to recover for it, constitute the very essence of a cause of action. The conclusion follows that the cause of action thus created is embraced by section COFFEY, J. This cause originated before 283, which provides, in effect, that all causes the board of commissioners of Hancock of action, except for injuries to the person, county. Upon appeal to the circuit court and actions for promises to marry, survive, the appellee filed an amended complaint, in and may be brought against the personal rep- which he avers that heretofore, to-wit, in the resentative of the deceased party. There is years 1883, 1884, 1885, and 1886, the treasno force in the suggestion that the action urer of Hancock county wrongfully paid and does not survive because the statute impos- delivered to the said county, of the penalties ing the penalty and giving the right to sue on delinquent taxes by him collected in said was not enacted until after the enactment of county in said years, as follows, to-wit: 1883, the statute relating to the survival of actions. $530.20; 1884, $454.16; 1885, $520.21; 1886, We quite agree with the contention that it $414.29; total, $1,918.86. That the amounts might have been provided in the statute giv-named were due to the state of Indiana, and

Rev. St. Ind. 1881, § 4926, which provides that all money paid into the treasury, and not otherwise appropriated, shall belong to the general funds of the state, does not apply to money collected for the penalty added to delinquent taxes by section 6426, but such money belongs to the county and state, respectively, in proportion to the amount of the state and county taxes.

Appeal from circuit court, Hancock county; M. E. FORKNER, Judge.

Action by the state on the relation of the attorney general against the board of commissioners of Hancock county, for penalties on delinquent taxes. Plaintiff obtained judgment. Defendant appeals.

Marsh & Cook, for appellant. L. T. Michener, Atty. Gen., for appellee.

not to the county of Hancock. That the said treasurer paid and delivered said sums to the county as being due to her for penalties collected on delinquent taxes as aforesaid, and did not pay any part of said sums to the state of Indiana in any manner or form, but only paid the state such portion of said penalties as equaled the amount of penalties collected as the pro rata share of the state in the whole amount of the delinquent taxes collected in said year, and no more. That the said sums are due and unpaid. That payment of the same was demanded by the plaintiff before the commencement of this suit, but was refused by the defendant, and that this claim has not been collected or sued for by any other officer A demurrer to this complaint for want of sufficient facts to constitute a cause of action was overruled by the circuit court, and the appellant excepted. Failing and refusing to plead further, judgment was rendered against the appellant for the amount claimed. The error assigned here is: (1) That the complaint does not state facts sufficient to constitute a cause of action; (2) the circuit court had no jurisdiction; and (3) that the court erred in overruling the demurrer of the appellant to the complaint.

after the third Monday in April, to make out a delinquent list, with the amount due from each delinquent tax-payer, with a separate column headed "Return," to the correctness of which list the county auditor shall certify. This certified list has the same force and effect as an execution. The treasurer is required to visit the residence of each such delinquent in the county, either in person or by his deputy, and make demand for the amount of such delinquent taxes and the penalty thereon, and, if the taxes and penalty are not paid, he is required to levy upon sufficient personal property to satisfy the same, if so much can be found. In case such delinquent tax and penalty is paid upon demand, such treasurer shall charge and receive from such delinquent, in addition to the tax and penalty, the sum of 25 cents. Section 6457 requires the county auditor, between the first Monday of December and the first Monday of January, annually, to make out and record in a book provided for that purpose, a list of lands and lots remaining delinquent, describing such lands and lots as they are described on the tax duplicate, and charge them with the amount of delinquent taxes, with interest and a penalty of 10 per centum on such taxes, and with the taxes of the current year, including current and delinquent taxes on personal property. Sections 6458 and 6459 provide for the advertisement and sale of such lands and lots for the payment of such delinquent taxes, penalty, interest, and the costs made in such sale. Section 4926, Rev. St. 1881, provides that the general funds of the state shall consist of: First, the moneys, debts, and property belonging to the treasury proper, together with the increase and revenue thereof; second, moneys derived from the sale of lots in the city of Indianapolis; third, penalties and forfeitures not specifically appropriated; fourth, Section 6426, Rev. St. 1881, provides that moneys received from copies of laws sold; any person charged with taxes on the tax fifth, all moneys paid into the treasury and duplicate in the hands of the county treas- not specifically appropriated to any other urer may pay the full amount of such taxes on fund. It is under this last section that the or before the third Monday in April, or may, at appellee claims the money now in dispute. his option, pay the first installment on or be- As to whether the state is entitled to the fore such third Monday, and the remaining in- money named in the complaint depends upon stallment on or before the first Monday in No- whether the penalties referred to in the difvember following. In all cases where the first ferent sections of our tax law above cited atinstallment shall not be paid on or before the tach to and become a part of the taxes asthird Monday in April, the whole amount un- sessed, or whether they are to be regarded as paid shall become due and be returned delin- a mere punishment of the delinquent taxquent, and collected as provided by law; and payer, and remain separate and apart from there shall be a penalty added of 10 per cent. the taxes. As will be observed by reading upon the amount of any installment not paid these provisions of our tax law, in each inwhen due, which the persons or property as- stance, except in section 6457, where the pensessed shall pay, together with costs of col-alty is provided for, it is declared that such lection; and, if such taxes remain delinquent penalty shall be added to the tax. The words at the succeeding first Monday in November, "add to" are generally understood to mean there shall be a penalty of 6 per centum added to all such taxes that became delinquent at the preceding April and November settlements, and a penalty of 10 per cent. only shall be added to the current delinquency occurring on the first Monday in November. Section 6427 requires the county treasurer,

It is claimed by the appellant that the penalty assessed for the non-payment of taxes was intended by the legislature as a compensation to the several funds for the increased expenditures made necessary by its non-payment at the time fixed by law, and is to be added to and to become a part of such tax; while, on the other hand, it is contended by the appellee that such penalty is intended as punishment of the delinquent, and that such penalty, when collected, belongs to the state, and should be paid into the state treasury under the provisions of section 4926, Rev. St. 1881.

to increase. Webster defines the word "add" "to join or unite, as one thing or sum to another, so as to increase the number, augment the quantity, enlarge the magnitude, or so as to form into one aggregate." So when the legislature speaks of adding to a tax a penalty of 10 per cent., it would generally be

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understood that it was intended to increase such tax in that amount.

Appeal from circuit court, Porter county; E. C. FIELD, Judge.

Action by Daniel F. Winslow and others against James Donnelly. Judgment for defendant. Plaintiffs appeal. E. D. & P. Crumpacker, for appellants. Wm. E. Pinney and A. L. Jones, for appellee.

The precise question involved here has never, to our knowledge, been decided by this court, but has been passed upon by other courts in the Union. In the state of Kansas there is a statute similar to the one now under consideration. In the case of State v. Bowker, 4 Kan. 114, it was held that the 10 ELLIOTT, C. J. The appellants seek a deper cent. penalty assessed for the non-pay- cree quieting title, and allege in their comment of taxes within the time prescribed by plaint that the title is clouded by a devise to the law attached to and constituted a part of the appellee. They aver that the will conthe tax. In the case of Railway Co. v. Am-taining the devise was procured by the fraud rine, 10 Kan. 318, the court adhered to the of the devisee, who induced the testatrix to doctrine announced in the case of State v. marry him, although he had a wife living at Bowker, supra, so that this doctrine seems to the time, from whom he had not been dibe finally settled in the state of Kansas. In vorced. The complaint also alleges that the the case of State v. Huffaker, 11 Nev. 300, will "was duly admitted to probate in the the precise question involved in this case was district court of Cedar county, in the state of decided. In that case the treasurer had col- Iowa, and a duly-authenticated copy of said lected a penalty,-$5,564.28,-being a pen- will, and the probate thereof, from said disalty fixed by law for the non-payment of trict court of Cedar county, has been filed taxes within a given time. The state claimed and recorded under the provisions of the the whole amount, upon the ground that it statute of this state in Porter county." The was assessed as a punishment of the delin-trial court did not err in sustaining the apquent tax-payer; but BEATTY, J., who deliv- pellee's demurrer to the complaint. The ered the opinion of the court, said: "The judgment of the district court of Cedar penalty of twenty-five per centum is assessed county, Iowa, precludes the appellant from upon the aggregate amount of taxes due to attacking the will in an action to quiet title. the state and county, of which five-thir- Whether a direct attack upon the will for teenths were due to the state and eight-thir-fraud could be maintained is not the question, teenths to the county. The law makes no for the present attack is a collateral one, and express disposition of the penalty, and it becomes a question of construction what disposition of it the legislature intended. We think the penalty is to be regarded not only as a punishment to the delinquent, but also, and principally, as a compensation to the state and county for the delay of payment, and the consequent derangement of their finances. So regarded, the obvious conclusion is that the penalty follows the tax; in this case, five-thirteenths to the state and eight-thirteenths to the county." Following the language used in our own tax law, and the construction placed upon such language by the decisions above cited, we have reached the conclusion that the 10 per cent. penalty assessed for the non-payment of taxes under our law attaches to and becomes a part of the tax. Under this rule the penalty assessed on taxes levied for county purposes would belong to the county, while the penalty assessed on taxes levied for state purposes would belong to the state. Davis v. State, ante, 9, (this term.) It follows that the circuit court erred in overruling the demurrer to the complaint in this cause. The cause is reversed, with instructions to the circuit court to sustain the demurrer to the complaint.

(119 Ind. 565)

WINSLOW et al. v. DONNELLY. (Supreme Court of Indiana. June 28, 1889.) QUIETING TITLE.

The title of a devisee under a will which has been admitted to probate in another state cannot be declared void, in a suit to quiet title, on the ground that the devise was procured by fraud.

is unavailing. The decision in Harris v. Harris, 61 Ind. 117, goes much further than we are required to do here, for it denies the right to attack in any method and for any cause. It is possible that the decision we refer to attaches greater force to the fourth article of the federal constitution than it is entitled to receive under the decisions of the supreme court of the United States, but, however this may be, we think it quite clear that the present attack cannot be successful. Robertson v. Pickrell, 109 U. S. 608, 3 Sup. Ct. Rep. 407. Our reasons for holding that the present attack is unavailing are-First, that the general rule is that the judgment of a court of competent jurisdiction cannot be collaterally impeached; and, second, that, if the will here under mention can be impeached at all for fraud, it must be in the method provided by statute, and not in an action to quiet title. The American decisions declare that a will which has been admitted to probate cannot be set aside upon the ground of fraud in a collateral proceeding. Broderick's Will, 21 Wall. 503; State v. McGlynn, 20 Cal. 233.

The cross-complaint of the appellee is substantially an ordinary complaint to quiet title, and alleges that the cross-complainant is the owner in fee of the land. The appellants answered the cross-complaint, alleging that the only claim of title the cross-complainant had was that conferred by the will, and that the will was procured by his fraud in representing himself to the testatrix as her husband when he was, in fact, married to another woman at the time he assumed to marry

(149 Mass. 450)

MCINTIRE v. ROBERTS et al. (Supreme Judicial Court of Massachusetts. Suffolk. June 20, 1889.)

DANGEROUS PREMISES-OPENINGS ON STREET. The occupant of a building in which is an opening to an elevator shaft facing on a public street but separated from the sidewalk by a lintel 3 inches high and 18 inches wide, is not responsible for injuries received by a passer-by who is accidentally pushed into the opening by third persons. Report from superior court, Suffolk county; EDGAR J. SHERMAN, Judge.

the testatrix. The answer avers that the plaintiff. A. Hemenway and J. F. Wheeler, will was duly admitted to probate by the dis- for defendants. trict court of Cedar county, Iowa, so that the question is substantially the same as that FIELD, J. It is plain that the opening in presented upon the complaint. For the rea- the wall of the building for access to the elesons already given, the answer must be de- vator from the street was outside the limits clared insufficient. It is pleaded as a bar to of the street, and that the plaintiff did not the cross-action, and seeks to collaterally im- enter the building by any invitation of the peach the judgment of the Iowa court, and defendants. The contention is that the dethis, as we have seen, cannot be done in this fendants were negligent in leaving this openaction. There is some confusion in the rec-ing unguarded. It is said of the liability of ord, but we think it sufficiently clear that the the city in Alger v. Lowell, 3 Allen, 402, demurrer was addressed to the cross-com- 405, that "the place where the plaintiff fell plaint, and not to the answer of general de- was indeed outside the line of the street, but nial. The argument of the parties, and the the defect in the street which occasioned the other evidence in the case, supplies grounds injury was the want of a railing, if one was for inferring that the land claimed by the ap- necessary at that place to make the street pellee was the same as that mentioned in the safe and convenient for travelers in the use devise to him. This is sufficient to sustain of ordinary care. And the city would have the finding of the trial court. Railroad Co. an undoubted right to erect such a railing, v. Collingwood, 71 Ind. 476; Heaton v. although it might obstruct the entrance to Shanklin, 115 Ind. 595, 18 N. E. Rep. 172. the passage-way of an abutter; because no Judgment affirmed. person has a right to an open access to his land adjoining a street of such a character as to endanger persons lawfully using the street for purposes of travel." In Franklin v. Fisk, 13 Allen, 211, it is said that, "when highways are established, they are located by the public authorities with exactness, and the easement of the public, which consists of the right to make them safe and convenient for travelers, and to use them for public travel, does not extend beyond the limits of the location. *** The right of adjoining proprietors to erect structures upon their land up to the line of the highway is exercised everywhere." See Mayo v. Springfield, Action of tort by John McIntire against 136 Mass. 10. If this elevator opening renJohn H. Roberts and others. The evidence dered the sidewalk permanently dangerous to showed that defendants occupied a building travelers, it was undoubtedly the duty of the on Merrimac street, in the city of Boston; city of Boston to put up a barrier, and if the that fronting and opening upon said street defendants removed it they might be liable was an elevator well, in said building used to travelers who were injured in consequence by defendants for the purposes of an eleva- of the removal of the barrier; but it has not tor, in connection with their business; that yet been decided in this commonwealth that plaintiff, while passing along said street, came at common law abutters are liable to travelwithin 26 or 30 feet of the defendants' prem-ers for injuries received in consequence of ises, when he saw that the sidewalk in front excavations made in their land outside the of them was obstructed by men unloading limits of a highway, and Howland v. Viniron castings from a wagon backed up cent, 10 Metc. 371, is a stronger case for the against the curbstone; that, seeing there plaintiff than the case at bar. It is argued was no opportunity to pass, he waited upon that that case is opposed to the weight of authe sidewalk until the men had ceased to thority elsewhere, and that a hole outside the pass the castings from the wagon to the ele- limits of a highway, yet so near to it as to vator, and had commenced to lay them on make the highway unsafe for travelers, conthe sidewalk, when he proceeded to pass on, stitutes a public nuisance; and that, if a perand was just opposite the elevator opening, son creates a public nuisance, he is liable to when the horse suddenly started back, push-individuals for any special damages suffered ing the wagon upon the sidewalk, forcing against him the persons between himself and the wagon, who pushed him towards the defendant's building. His foot struck against a stone lintel bordering the elevator opening, and he fell into the defendants' cellar, and received the injuries complained of. The judge instructed the jury to find for the defendants, and at plaintiff's request reported the case to the full court.

J. A. Maxwell and J. D. McLaughlin, for

therefrom. See Barnes v. Ward, 9 C. B. 392; Fisher v. Prowse, 2 Best & S. 770; Hadley v. Taylor, L. R. 1 C. P. 53; Beck v. Carter, 68 N. Y. 283; Bond v. Smith, 44 Hun, 219; Murray v. McShane, 52 Md. 217; State v. Society, 42 N. J. Law, 504; Haughey v. Hart, 62 Iowa, 96, 17 N. W. Rep. 189.

The occupier of a building, who negligently permits a private way leading to it, which is under his control, to be in an unsafe condition, by reason of an excavation or embank

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