Appeal from Scott County Circuit Court: The petition states that the plaintiff while driving a horse harnessed to a wagon along and up a street in the city, and without fault or negligence on her part, was violently thrown from the wagon by reason of the horse taking fright at a steam motor then being and on said street, under the authority and permission of the defendant. It is alleged that the plaintiff is greatly injured, and a recovery is therefore sought. There were two counts in the petition. To the first there was a demurrer, which was sustained, and to which the plaintiff excepted. And refusing to plead further, judgment was rendered against her.

It was stipulated by counsel when the demurrer was submitted, that it presented for determination the following question: “Whether or not it was negligence on the part of the defendant to permit the use of a steam motor on Brady street under the written authority set out in said petition, and allowing it to remain and be used thereon.” The written authority referred to is a written resolution of the city counsel granting permission to use the motor on Brady street for thirty days.

The second count, which set out a cause of action based on the use of a motor was substantially as the same was stated in the first count. There were also other acts of negligence alleged in the the second count, because of which the plaintiff claimed to recover. The defendant filed a motion to strike out of the second count allegations relating to the motor. The motion was sustained, and plaintiff excepted. But no judgment was rendered dismissing the action. The plaintiff appeals and assigns as error the action of the court in sustaining the motion and demurrer.

A. J Hirschl, for appellant; H. M. Martin, for appellee.

SEEVER, J., delivered the opinion of the court:

The appellee insists because no judgment was rendered on the motion other than merely sustaining it and striking out the allegations objected to, that the appeal must be dismissed. It is conceded that an appeal lies from the ruling on the demurrer, but it is stated and admitted in the abstract, the cause is pending and for trial in the court below, on the remaining cause of action in the second count. The argument briefly stated is: That an action can not be pending in this court and the court below at the same time. While here the cause may be tried below and recovery had. If so the prosecution of the appeal would be unnecessary, and that a cause can not be tried by piecemeal-a part before and another part after the appeal has been determined.

Appeals to this court are regulated by statute; by reference thereto the question presented can be readily solved. It is provided that an “appeal may be taken to the Supreme Court from an intermediate order involving the merits and materially affecting the final decision.” Code, sec. 3161.

The motion involved the merits, and when it was sustained the final decision was virtually affected, for as the pleadings now stand in the court below the plaintiff can not introduce any evidence in relation to the steam motor; nor can the right

of the defendant to authorize its use be controverted in this action. By sustaining the motion the circuit court has striken all allegations upon which such question can be based from the pleadings. By the express words of the statute an appeal lies in such a case. By what authority canan appeal properly taken be dismissed? None other, we think, than statutory authority. Counsel have not called our attention to such a statute and we kuow of none. If the remaining cause of action had been tried, it is possible, whatever might have been its result, it would be deemed a waiver of the appeal if brought to the attention of this court at the proper time. Code, sec. 3212. It is probable, also, that the court below would have the power to postpone the trial there until the appeal was disposed of. There is nothing in the record which tends to show the plaintiff has done anything since the appeal was taken which amounts to a waiver or will authorize a dismissal of the appeal. In fact, the record fails to show that an issue has been formed or that either party desires a trial below until this appeal is determined.

In 1870 the defendant granted to "The Davenport Central Railroad Company the exclusive right to lay and operate upon

* Brady street, in said city, a single horse railway, with the necessary side tracks." The right of the city to make this grant is not questioned. In 1878 the city granted “ J. M. Davies permission to run one of Baldwin's noiseless steam motors on Brady street hill on probation for thirty days." The motor was run and operated on the track of the street railway company.

It has been held that cities have the authority to grant railroad companies who use steam in operating their roads the right to occupy with their track street or streets of the city. Milburn v. Cedar Rapids, 12 Iowa 246, and numerous other cases. These decisions were based on a statute providing that any (railway) corparation may raise or lower any turnpike, plank road or other highway for the purpose of having its railway pass over or under the same, and in such cases said corporation shall put such highway as soon as may be in as good repair and condition as before such alteration." Code sec. 1262.

In the Milburn case the words 6 pass over were construed to mean “upon" or lengthwise, and this construction has been several times followed in subsequent cases. As thus construed the legislative assent had been given to the laying down of railway tracks in streets and the operation of the same by the use of steam, subject, however, to proper equitable control and police regulations. Chicago, etc. R. R. Co. v. Mayor of Newton, 36 Iowa, 299. But it never has been held that cities had the authority to grant such privileges in the absence of a legislative grant to that effect, whatever may have been said by judges who have written opinions in the cases in which this question has been determined or discussed. It is quite apparent, we think, that all the cases subsequent thereto are based on the Milburn case, which, as we understand it, is based on the, stat

It is worthy of note that, notwithstanding

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the several decisions following the Milburn case, it has not been deemed satisfactory to the profession or general public. This is apparent from the numerous cases in which the doctrine of the Milburn case has been vigorously assaulted by counsel.

Finally, in 1874, the General Assembly enacted a substitute for code sec. 1262, which provides that railway corporations may “cross over or under” any highway with its railway. Chap. 47, Law 15, General Assembly. To cross over or under does not mean upon or lengthwise. Under the circumstances the legislative intent has been clearly expressed, and it is to the effect that railways operated by steam can not be constructed upon streets

in a

The city does not have the authority to sell and convey the title held by it or authorize the streets to be used for private purposes. Nor can it, without legislative authority, grant the use of a street for a public purpose, which renders it dangerous for the public to travel over it in any other man

The power partakes of that eminent domain which, under our government, can only be granted by the law-making power of the State. Streets and highways are under the exclusive control of the general assembly. It matters not if the fee of the streets is in the city, it has no authority to control or grant rights and privileges thereto or thereon, unless it has been so authorized. The power authority is

the code hereinafter referred to. Or if this be not charter and bounded thereby. "It has no other or

true, the legislative assent contained in sec. 1262 different control of the streets than is prescribed of the code has been withdrawn by the enactment in the charter or the general statutes of the State. of the statute of 1874. We are not called on to A distinction has been drawn between a railway vindicate or condemn the wisdom of this statute. operated by horse and steam power, and whether To construe or ascertain its meaning is our only the defendant may authorize the former and not province. The various decisions above referred to the latter, is not in this case, and we only allude are not now correct expositions of the law because thereto least we be misunderstood. The strong they have been superseded by that branch of the current of the authorities, as we understand, are government whose province it is to enact, but not in accord with the views herein expressed. 2 Dilto construe the law.

lon's Municipal Corporations 567-568. Davis v. The remaining question is whether the city had Mayor, etc., 14 N. Y. 506. Mislau v. Sharp, 27 the authority in the absence of a grant from the

N. Y. 611. Com. v. W. E.R. R. Co., 27 Pa., 344. general assembly to authorize or permit the use of

Protzman v. Illinois Cent. R. Co., 9 Ind.. 468. the steam motor on Brady street in said city. If

State v. Inhabitants of Newton, 36 N. J. L., 83. such power did not exist, the permission could Memphis City R. Co. v. Memphis, 4 Coldw., 406. well be styled negligence, for which the city should It is suggested, but not pressed, in argument, be held responsible. Unless the city can shield that the act of the city council being without itself by reason of its authority in the premises, authority, the city is not responsible for any conthe permission to use the motor on the street con- sequence resulting therefrom. The city had jurisstitutes negligence.

diction of the subject matter, that is of the streets, That it was an experiment is not material. If

and could only act in relation thereto through its no power existed it matters not whether the

council. The latter had control of the streets of authorized use was for a long or short period of

the city, but were mistaken as to the extent of time. The defendant was organized under a

their authority. The particular thing the council special charter, and it is stipulated by counsel that

authorized to be done was illegal, and we think neither the charter nor ordinances of the city

the city is responsible for the consequence resultexpressly prohibit the street railway company

ing therefrom. The modern doctrine we under“from using other than animal power in operating

stand to be this: Whenever an action for an inits road." Nor does the charter or ordinances jury to the property or person of another will lie contain a grant to that effect. Therefore, we

against an individual, corporations will in like cirthink it imust be true the street railway company

cumstances be equally liable for any injuries comhad no right to use or authorize the use of steam

mitted by their officers and agents acting within on its track. Hence the application to the city

the apparent scope of their authority. It was council, and the necessity that it should grant the

therefore held in Lee v. The Village of Sandy requisite permission.

Hill, 40 N. Y. 443, that the defendant was liable The charter empowers the defendant to open,

for a trespass committed under the direction of alter, abolish, widen, extend, establish, grade,

the village trustees. The trespass consisted in pave or otherwise improve and keep in repair

removing a fence which they erroneously supposstreets, avenues and alleys." That the requisite

ed encroached upon the street. power is not contained in the charter we regard

In City of Pekin v. Newell, 26 n. 320, the as beyond serious controversy. We feel the more

city was authorized "to build and construct an emcertain of this because the learned counsel for the

bankment and plank road across the Ilinois river city does not claim such authority is contained

bottom opposite said city.” Instead of so doing, therein. It may be that cities organized under

a pile bridge was constructed in such a negligent the general incorporation law have such authority.

manner that the horse of the defendant in error If so it is because there is a statute to that effect. fell through the bridge and was killed. The city Code, sec. 464. Such statute, however, is not ap

sought to defend on the ground that the bridge plicable to the defendant.

was built without authority. But it was rightly, The fee of the streets is in the city, and yet it is

we think, held otherwise. Other authorities might held in trust for the use and benefit of the public.

be cited to the same effect. Reversed.

ADAMS, J., dissenting.

Decisions in relation to the occupancy of streets hiy ordinary railroads not designed for street purposes are, in my judgment, not strictly applicable to this case. A street railway, whether operated by animal, steam or other power, is not an obstruction to the same extent. It is consistent with all the legitimate uses to which a street is put, and has come to be deemed a public necessity:

In my opinion the city council may regulate the use of streets without any special grant of power in this respect, and may in its discretion with a view of promoting its public interest, allow cars to be drawn thereon for street purposes, either by animal, steam, atmospheric pressure or other power, and that, too, though the cars or motors may be such as to cause fright, to some extent, to timid horses. It must, I think, be allowed in such a case, to judge of the objectionableness, if any, of proposed cars or motors, and whether the inconvenience, if any, resulting to any persons, as causing fright to horses, would be such as to overcome the considerations of public necessity or advantage. Steam fire engines are well calculated to frighten timid horses, yet no one supposes that a city council could not remit them to be drawn upon a street. Many other things may be done on the streets which are calculated to frighten timid horses, but they are not necessarily to be forbidden for that reason. Private convenience must sometimes yield to what is deemed a paramount public convenience.

When the city council of defendant city granted permission to use a motor upon one of its street railways, we must presume that it did so because it considered that the public convenience demanded it; and the defendant city should not, in my judgment, be held liable for the injury resulting from the fright of plaintiff's horse. Whether a city council, without express authority from the legislature, can grant an exclusive right to operate a street railroad by the use of a motor or otherwise, or what right it can grant, if any, are entirely different questions. Upon them, I think, the decisions have not been entirely uniform. If the city council can grant no right, then an attempt to do so would be void; and the ground of the plaintiff's complaint would be simple, that the city suffered the motor to be used, but such sufferance would not, in my judgment, be negligence, because I think that a city council may exercise a discretion in relation to what it shall suffer and what it shall forbid, so long as it acts in good faith, and with a view to promoting the public convenience. I see no errer in the ruling of the circuit court.

that place would be far less dangerous. Nine out of ten carriages might pass it without horse or driver noticing it. If seen, it could be easily avoided. The tent was almost certain to frighten any horse driven near it, and the safety of those concerned depended largely upon the skill of the driver, or strength of the harness." And bales of hay, even on margin of highway, made it defective. See Morse v. Richmond, 41 Vt 438 (with a valuable note by Redfield J.). So, also, a pig sty projecting into a highway, the pigs scampering around therein and causing fright to horses. Bartlett v. Hooksett, 48 N. II. 20. A pile of stones in highway, Clinton v. Howard, 42 Conn. 306. A burnt log, close beside the traveled path. Foshay v. Glen Haven, 25 Wis. 289. A large rock. Card v. City of Ellsworth, 65 Maine, 551. In all these, the horses, frightened at the objects mentioned and caused injuries, no other defects existing in the street, and defendant cities or town held liable. In Woods v. Groton, 111 Mass. 358, a horse shied at a puddle of water, which had been allowed to remain in the a highway, and threw the wagon off an embankment which was not guarded by a railing; on these facts, defendant was held liable for damages; but it does not appear whether the defect consisted in the puddle, or in the want of a railing, or in both. In all the above cases, the defendants were under the same obligations, generally, as was the city of Davenport in regard to keeping streets in good order and repair, and in a sufficient condition for the public use.

A city is, of course, liable for injuries occasioned by defects in its streets, existing with the knowledge of the city. Ewell v. Greenwood, 26 Iowa, 380; Hougham v. Harvey, 33 Iowa, 204; Parks v. Chicago, etc., R. Co., 43 Iowa, 638; Dillon on Munc. Corp., sec. 770, note 2 and sec. 778; Thayer v. Boston, 19 Pick. 515; Little v. City of Madison, 42 Wis. 632.

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[Filed Oct. 14-17, 1879.]

PUBLICATION DESIGXATION OF NEWSPAPER.Under ch. 1 and 2, Gen. Laws of 1874, the designation by the board of county commissioners of a county of some newspaper to publish its delinquent tax list and the accompanying notice, is essential to a valid publication thereof, and to the validity of any judgment rendered thereon. The want of such jurisdictional fact may be shown to impeach the judgment or any sale had thereunder. The adoption by the board of a motion directing the county auditor to give the printing of the delinquent tax list to A. F. Daggett, editor of the Litchfield News Ledger, is not such a designation. So, also, as to a motion to give such printing “to Daggett and Joubert, editors of the Litchfield News Ledger." Opinion by CORNELL, J.-Eastman v. Linn.

DISQUALIFYING INTEREST-MOTIVES.-An ownership of land contiguous to the line of a proposed county highway which may affect or enhance the value of such land, is not such an interest as legally precludes the owner from acting as a member of the board of county commissioners, upon a petition signed by himself and others for establishing the road. As a general rule, the motives that may have influenced official conduct of members of such board can not be made the subject of practical inquiry for the purpose of impeaching their official acts. Opinion by CORNELL, J - Webster v. Board of County Commissioners.

NOTE.-A defect in the street may consist of any. thing that frightens horses and causes accidents in that way, as well as anything with which they come directly into contact, as where a city licensed an exhibition of bears on its streets, causing fright of a horse, and consequent injury to the driver, the city was held liable: Little v. City of Madison, 12 Wis. 652; or let a steam roller used in repairing streets remain there01. Young v. City of New Ilaven, 39 Conn. 435. Or a tent in the limits of a highway. Ayer y. Norwich, 39 Conn. 380, the court saying: “A hole in the road at

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RIPARIAN RIGHTS INJUNCTION.- The riparian owner upon a navigable stream may use the water flowing past his land for any purpose, so long as he does not impede the navigation, in the absence of any counterclaim by the State, or the United States. The act incorporating the St. Anthony Falls Water Power Company does not authorize it to appropriate the water power opposite the land of any other riparian owner. For an unlawful interference with the right of a riparian owner to use the water flowing past his land, an injunction is a proper remedy. Mere delay of such an owner to assert his right does not work an estoppel. Opinion by GILFILLAN, C. J.-Morrill v. St. Anthony Falls Water Pover Co.

TAXATION- WATER POWER-REAL PROPERTY.The Minneapolis Mill Co. is the owner in fee of land upon the western bank of the Mississippi river at the Falls of St. Anthony, opposite which lands it has built and maintains a dam extending from each bank into the river. The company has leased to different parties four mill sites upon the dam, together with the right to use upon and at such respective sites the quantity of water in the lease specified, in all amounting to thirteen water powers, the said water and water powers being taken and used thereat directly from the main body of the said river running through said dam, and regulated by means of gates thereon. Morrill v. St. Anthony Falls Water Co., supra, fol. lowed as to the general rule that a riparian owner may use the waters of a navigable river (like the Mississippi) adjoining his land for any purpose, for his own advantage, so long as he does not impede navigation, and in the absence of any counterclaim by the State or the United States. The fact of this use rests upon the fact of riparian ownership; that is to say, the ri. parian proprietor possesses this right, because he owns the land upon the bank; or, in other words, the right is attached as an incident to the riparian land, and belongs and appertains to the same. It follows that defendant's right to the use of the water is, for all purposes of taxation, real property and not personal, since our tax law provides that real property, for the purposes of taxation, shall be construed to include the land itself and all rights and privileges belonging or in anywise appertaining thereto. Opinion by BERRY, J.--State v. Minneapolis Mill Co.

tax assessed May, 11875, to the defendant, as adminis. tratrix of her husband, for a stock of merchandise, it appeared that on April 28, 1875, an agreement was signed and delivered by J. M. & Co. to the said administratrix, which recited that the defendant ''sells'' and J. M. & Co. “buy” said stock, and provided that “the price is to be seventy-five per cent. of the invoice prices of the goods, according to the inventory in the possession of the administratrix, subject to corrections as to qualities. Delivery to be made and price paid as soon as the quantities can be veritied." The clerks of the defendant retained the key of the store until the examination and verification was complete, and until the goods were removed on the fifth or sixth of May to the store of J. M. & Co. Held, that the defendant was the owner of the goods on the first day of May, and was liable for the tax assessed thereon. Higgins v. Chessman, 9 Pick. 7, 10; Dresser Manf. Co. v. Watterson, 3 Met. 9, 17, Macomber v. Parker, 13 Pick. 175: Mason v. Thompson, 18 Pick. 305; Riddle v. Varnum, 20 Pick. 280; Foster v. Roper, 111 Mass. 10, 16. Opinion by GRAY, C. J.-Sherwin v. Mudge.

CRIMINAL LAW STATUTE CONSTRUCTION OF “SIMILAR OFFENSE." -The defendant was convicted under the Gen. Stats., ch. 87, secs. 6, 7, upon a complaint for keeping and maintaining a tenement used for the illegal sale and illegal keeping of intoxicating liquors. When he was brought before the court for sentence, it appeared that he had been previously convicted under statutes of 1875, ch. 99, of illegally keeping intoxicating liquors for sale, and that he had not previously been convicted of any other offense claimed to be similar to the one charged in this complaint. The court ruled, as a matter of law, that, under the statute of 1866, ch. 280, providing that “when it is provided by law that an offense shall be punished by a fine and imprisonment in the jail, or by a fine and imprisonment in the house of correction, such of. fender may, at the discretion of the court, be sentenced to be punished by such imprisoument without the fine, or by such fine without the imprisonment, in all cases where the offender shall prove or show to the satisfaction of the court, that he has not before been convicted of a similar offense,'' it had no discretion to impose a fine without imprisonment, or imprisonment without a fine, but was compelled to impose a sentence of both fine and imprisonment: Held, that the two offenses were distinct and different; the gist of one is the keeping and using a tenement for an illegal purpose, which makes it a nuisance; of the other, doing certain acts which constitute an offense, but which do not necessarily involve the keeping of any tenement or building. The word “similar'' is often used to denote a partial resemblance only, but it is also often used to denote sameness in all essential particulars. We think the legislature intended to use it in the latter sense in the statute we are considering. Opinion by MORTON, J.-Com. v. Fontain.



October, 1879.


SLANDER-ACTIONABLE WORDS-EVIDENCE.-Inan action for slander by words spoken concerning the plaintiff, a married woman, the defendant offered himself as a witness, and denied that he used the words charged against him, and denied that he knew the plaintiff or mentioned her name to a third person before her marriage. IIeld, that this evidence, being competent and material, might be contradicted. 2. If the subject of the discourse in relation to a female is chastity, the use of the word “bad”' might import the want of conjugal fidelity, if the woman were a married woman; and when the ge against a married woman is that she is a bad woman, a bitch and a whore, the court can not say, as matter of law, that the word bad does not import a want of chastity, but .it is for the jury to determine the sense in which the word was used. Opinion by LORD, J.-Riddel v. Thayer.

TAX - CONTRACT FOR SALE OF PERSONAL PROPERTY-TITLE.--In an action of contract to recover &

(Advance sheets of 51 Vt.

CONTRACT-IMPLIED PROMISE.- Plaintiff propos. ed to defendant that he take plaintiff and his wife to board, and, as defendant's wife, who owned the place where she and defendant lived, wished to repair and alter her house before taking them, offered to let defendant have money for that pupose. He accordingly paid defendant money to be so expended, and aid money for labor and materials so used, and de

livered to defendant certain wood, hay, grain and and the defendant seeks to recover as damages the sugar. Defendant was then insolvent, and known by price of the machine given in exchange, and to defeat plaintiff to be so, and he never expressly promised the note given for the difference. The plaintiff is only plaintiff to pay him for any of the charges, but plain- entitled to recover on this paragraph the actual damatitf expected to be paid in full, either by board, or by ges sustained by the breach. If you find that he still board and money from defendant's wife, to make retains the machine for which he traded, and that up the deficiency. Held, that as the money, etc, ex- the same could have been repaired so as to work pended on the house, was furnished not at the request, according to contract, then his measure of damages nor for the benefit, nor on the credit of the de- would be simply the cost of such repairs, which he fendant but on the credit of the wife, and for her would be entitled to have deducted from the note. If benefit and the benefit of her separate proper- you find, however, that the plaintiff has never refused ty, the law would imply no promise on defendant's to repair the machine on request, or that the defendpart to repay it, but that as the wood, etc., was fur- ant never requested the plaintiff to furnish him a new nished to defendant for the use of his family, it was one, then your verdict should be for the plaintiff on for his benefit, and the law would imply a promise on this paragraph:Held, that the instruction contains his part to pay therefor. Opinion by Ross, J.-Roho | a fair statement of the law applicable to the case made erts v. Kelly.

the appellee's counterclaim and the issue joined FORGERY - INDICTMENT NECESSARY ALLEGA

thereon. 29 Ind. 142; 44 Ind. 490; 58 Ind. 438. ReGATIONS-MEANING OF "ACQUITTANCE.-1. A wri

versed.-Howe Machine Co. v. Reber. ting in the common form of a receipt, for money paid SURVIVAL OF ACTIONS-STATUTE OF LIMITATIONS as part of the purchase money of a farm, is an ac- -PLEADING.–This was a suit by Boles against Walquittance within the meaning of sec. 1, ch. 114, Gen. ter and Henry Baugh to have a certain deed declared Sts., providing for the punishment of those who al- void, and to subject the real estate conveyed thereby ter, forge or counterfeit acquittances or discharges for to sale for the payment of a debt due from Henry money or other property. “The word acquittance, Baugh to the plaintiff. The complaint stated that in although perhaps not strictly speaking synonymous 1851 Henry Baugh was appointed guardian of certain with receipt, includes it. A receipt is one form of minor heirs, and gave bond with the plaintiff as his an acquittance; a discharge, another. It is not ques- surety; that he received certain moneys of his wards, tioned but that a receipt in full is an acquittance. and afterwards purchased real estate, the deed for Why, therefore, is not a receipt for a part of a de- which he did not put on record; that becoming inmand or obligation an acquittance pro tanto? We are volved in debt he destroyed the deed and procured the aware that lexicographers do not fully agree as to grantors to execute another for the same real estate to this; but, in legal proceedings, a receipt is regarded his son Walter, for the purpose of defrauding his as an acquittance. See 2 Bishop Crim. Law, sec. 557; creditors, and that no consideration passed from WalRex v. Martin, 8 C. & P. 549; Regina v. Houseman, 8 ter to Henry other than natural love and affection; C. & P. 180; Regina y, Atkinson, 1 Car. & M. 325; that, afterwards, being threatened with suit by the Com. v. Ladd, 15 Mass. 526;Wharton Prec. Ind.383.” wards of said Henry, as surety on his bond, plaintiff 2. An indictment in two counts for altering, forging, paid said wards the amount of their claim; that and counterfeiting such a receipt, set out the receipt Henry had been absent from the State for fifteen in full, but alleged no dealings between the respondent years, and was presumptively dead, and that Walter and the receiptor showing that the receipt could have was his sole heir at law. The complaint prayed that been used to defraud, nor that the receipt alleged to the deed to Walter might be set aside and the property have been altered was ever delivered to the respondent sold for the beuefit of creditors. A demurrer to the as an acquittance, or ever held by him as such. Held, complaint was overruled, and on trial the jury gave a that allegations of extrinsic facts were necessary only verdict declaring the conveyance fraudulent and orderwhere the operation of the instrument on the rights of ing the real estate to be sold. Held, that the comanother was not apparent from the instrument itself: plaint did not state facts sufficient to constitute a and that allegations such as were wanting in the indict- cause of action against Walter Baugh. It failed to alment were unnecessary. Opinion by DUNTON, J., lege the date of the deed, but shows that Henry State v. Shelters.

Baugh left the State fifteen years prior to the suit, and that he left after the execution of the deed. When the complaint shows that the cause of action is within

the statute of limitations and is not within any of the SUPREME COURT OF INDIANA.

exceptions contained in the statute, it is bad on demur

46 Ind. 231; 55 Ind. 347. The complaint in this (Filed October, 1879.)

case shows that the cause of action was apparently

within the statute, but does not show that it is not EXCHANGE OF PERSONAL PROPERTY MEASURE within any of the exceptions contained in the statute. OF DAMAGES FOR DEFECT COUNTER-CLAIM.

It was not therefore bad on this ground. Henry Suit by appellant upon a promissory note. Answer Baugh, although a party to the suit, was presumptby way of counterclaim, that appellee was the owner

ively dead. After the lapse of five years the appellee of a Howe sewing machine of the value of $ 55, and

could have procured the appointment of an administhat appellant agreed to exchange a higher price ma

trator of his estate, and obtained an order for the sale chine for that belonging to appellee, taking the note in

of the real estate. Appellee's cause of action was a suit for the difference; that the machine received by

claim against Henry, and survived against his personali appellee in the exchange was worth less, etc. The

representatives and not against bis heirs at law. He appellee had judgment for $ 32. The error assigned

can not maintain an action against Walter as the heir at on appeal was the refusal of the court to give the fol

law of Henry, until there has first been an administralowing instruction: "The third paragraph of the an

tor, under the law, of said decedent's estate. 59 Ind. swer is similar to the second, except that it is pleaded

510; 66 Ind. 66, 245. Reversed. Opinion by HOWK, J. as a counterclaim; no warranty is alleged, nor any

-Baugh v. Boles. fraud, but simply a failure on the part of the plaintiff DECEDENT'S ESTATES-SET-OFF AGAINST CLAIMS to comply with a contract which he alleged to exist, OF.-This was an action by Convery as administrator whereby the machine truded for bad become worthless, of the estate of Gerhard Rutor, deceased, against


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