« ForrigeFortsett »
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. 3164.
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 can an appeal properly taken be dismissed? None other, we think, than statutory authority. Counsel have not called our attention to such a statute and we
know 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 " 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 statute. It is worthy of note that, notwithstanding
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 and highways except as provided in a section of the code hereinafter referred to. Or if this be not true, the legislative assent contained in sec. 1262 of the code has been withdrawn by the enactment of the statute of 1874. We are not called on to vindicate or condemn the wisdom of this statute. To construe or ascertain its meaning is our only province. The various decisions above referred to are not now correct expositions of the law because they have been superseded by that branch of the government whose province it is to enact, but not to construe the law.
The remaining question is whether the city had the authority in the absence of a grant from the general assembly to authorize or permit the use of the steam motor on Brady street in said city. If such power did not exist, the permission could well be styled negligence, for which the city should be held responsible. Unless the city can shield itself by reason of its authority in the premises, the permission to use the motor on the street constitutes negligence.
That it was an experiment is not material. If no power existed it matters not whether the authorized use was for a long or short period of time. The defendant was organized under a special charter, and it is stipulated by counsel that neither the charter nor ordinances of the city expressly prohibit the street railway company "from using other than animal power in operating its road." Nor does the charter or ordinances contain a grant to that effect. Therefore, we think it must be true the street railway company had no right to use or authorize the use of steam on its track. Hence the application to the city council, and the necessity that it should grant the requisite permission.
The charter empowers the defendant to "open, alter, abolish, widen, extend, establish, grade, pave or otherwise improve and keep in repair streets, avenues and alleys." That the requisite power is not contained in the charter we regard as beyond serious controversy. We feel the more certain of this because the learned counsel for the city does not claim such authority is contained therein. It may be that cities organized under the general incorporation law have such authority. If so it is because there is a statute to that effect. Code, sec. 464. Such statute, however, is not applicable to the defendant.
The fee of the streets is in the city, and yet it is held in trust for the use and benefit of the public.
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 manner. 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 and authority of the city is contained in its charter and bounded thereby. It has no other or different control of the streets than is prescribed in the charter or the general statutes of the State. A distinction has been drawn between a railway operated by horse and steam power, and whether the defendant may authorize the former and not the latter, is not in this case, and we only allude thereto least we be misunderstood. The strong current of the authorities, as we understand, are in accord with the views herein expressed. 2 Dillon's Municipal Corporations 567-568. Davis v. Mayor, etc., 14 N. Y. 506. Mislau v. Sharp, 27 N. Y. 611. Com. v. W. E. R. R. Co., 27 Pa., 344. Protzman v. Illinois Cent. R. Co., 9 Ind., 468. State v. Inhabitants of Newton, 36 N. J. L., 83. Memphis City R. Co. v. Memphis, 4 Coldw., 406. It is suggested, but not pressed, in argument, that the act of the city council being without authority, the city is not responsible for any consequence resulting therefrom. The city had jurisdiction of the subject matter, that is of the streets, and could only act in relation thereto through its council. The latter had control of the streets of the city, but were mistaken as to the extent of their authority. The particular thing the council authorized to be done was illegal, and we think the city is responsible for the consequence resulting therefrom. The modern doctrine we understand to be this: Whenever an action for an injury to the property or person of another will lie against an individual, corporations will in like circumstances be equally liable for any injuries committed by their officers and agents acting within the apparent scope of their authority. It was therefore held in Lee v. The Village of Sandy Hill, 40 N. Y. 443, that the defendant was liable for a trespass committed under the direction of the village trustees. The trespass consisted in removing a fence which they erroneously supposed encroached upon the street.
In City of Pekin v. Newell, 26 Ill. 320, the city was authorized “to build and construct an embankment and plank road across the Illinois river bottom opposite said city." Instead of so doing, a pile bridge was constructed in such a negligent manner that the horse of the defendant in error fell through the bridge and was killed. The city sought to defend on the ground that the bridge was built without authority. But it was rightly, we think, held otherwise. Other authorities might be cited to the same effect. Reversed.
ADAMS, J., dissenting.
Decisions in relation to the occupancy of streets by 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.
NOTE. A defect in the street may consist of anything 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, 42 Wis. 652; or let a steam roller used in repairing streets remain thereon. Young v. City of New Haven, 39 Conn. 435. a tent in the limits of a highway. Ayer v. Norwich, 39 Conn. 380, the court saying: "A hole in the road at
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. 652.
ABSTRACTS OF RECENT DECISIONS.
SUPREME COURT OF MINNESOTA. [Filed Oct. 14-17, 1879.]
PUBLICATION DESIGNATION 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.
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 Power 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, followed 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 riparian 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.
SUPREME JUDICIAL COURT OF MASSA
SLANDER-ACTIONABLE WORDS-EVIDENCE.-In an 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. Held, 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 charge 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 assessed May, 11875, to the defendant, as administratrix 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 verified." 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 offender 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.
SUPREME COURT OF VERMONT.
[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 sugar. Defendant was then insolvent, and known by plaintiff to be so, and he never expressly promised plaintiff to pay him for any of the charges, but plaintiff expected to be paid in full, either by board, or by board and money from defendant's wife, to make up the deficiency. Held, that as the money, etc, expended on the house, was furnished not at the request, nor for the benefit, nor on the credit of the defendant but on the credit of the wife, and for her benefit and the benefit of her separate property, the law would imply no promise on defendant's part to repay it, but that as the wood, etc., was furnished to defendant for the use of his family, it was for his benefit, and the law would imply a promise on his part to pay therefor. Opinion by Ross, J.-Roberts v. Kelly.
FORGERY INDICTMENT NECESSARY ALLEGAGATIONS-MEANING OF "ACQUITTANCE.—1. A writing in the common form of a receipt, for money paid as part of the purchase money of a farm, is an acquittance within the meaning of sec. 1, ch. 114, Gen. Sts., providing for the punishment of those who alter, forge or counterfeit acquittances or discharges for money or other property. The word acquittance, although perhaps not strictly speaking synonymous with receipt, includes it. A receipt is one form of an acquittance; a discharge, another. It is not questioned but that a receipt in full is an acquittance. Why, therefore, is not a receipt for a part of a demand or obligation an acquittance pro tanto? We are aware that lexicographers do not fully agree as to this; but, in legal proceedings, a receipt is regarded as an acquittance. See 2 Bishop Crim. Law, sec. 557; Rex v. Martin, 8 C. & P. 549; Regina v. Houseman, 8 C. & P. 180; Regina v. Atkinson, 1 Car. & M. 325; Com. v. Ladd, 15 Mass. 526; Wharton Prec. Ind. 383." 2. An indictment in two counts for altering, forging, and counterfeiting such a receipt, set out the receipt in full, but alleged no dealings between the respondent and the receiptor showing that the receipt could have been used to defraud, nor that the receipt alleged to have been altered was ever delivered to the respondent as an acquittance, or ever held by him as such. Held, that allegations of extrinsic facts were necessary only where the operation of the instrument on the rights of another was not apparent from the instrument itself; and that allegations such as were wanting in the indictment were unnecessary. Opinion by DUNTON, J., State v. Shelters.
SUPREME COURT OF INDIANA.
[Filed October, 1879.]
EXCHANGE OF PERSONAL PROPERTY MEASURE OF DAMAGES FOR DEFECT COUNTER-CLAIM.— Suit by appellant upon a promissory note. Answer by way of counterclaim, that appellee was the owner of a Howe sewing machine of the value of $55, and that appellant agreed to exchange a higher price machine for that belonging to appellee, taking the note in suit for the difference; that the machine received by appellee in the exchange was worth less, etc. The appellee had judgment for $32. The error assigned on appeal was the refusal of the court to give the following instruction: "The third paragraph of the answer is similar to the second, except that it is pleaded as a counterclaim; no warranty is alleged, nor any fraud, but simply a failure on the part of the plaintiff to comply with a contract which he alleged to exist, whereby the machine traded for had become worthless,
and the defendant seeks to recover as damages the price of the machine given in exchange, and to defeat the note given for the difference. The plaintiff is only entitled to recover on this paragraph the actual damages sustained by the breach. If you find that he still retains the machine for which he traded, and that the same could have been repaired so as to work according to contract, then his measure of damages would be simply the cost of such repairs, which he would be entitled to have deducted from the note. If you find, however, that the plaintiff has never refused to repair the machine on request, or that the defendant never requested the plaintiff to furnish him a new one, then your verdict should be for the plaintiff on this paragraph:" Held, that the instruction contains a fair statement of the law applicable to the case made by the appellee's counterclaim and the issue joined thereon. 29 Ind. 142; 44 Ind. 490; 58 Ind. 438. Reversed.-Howe Machine Co. v. Reber.
SURVIVAL OF ACTIONS-STATUTE OF LIMITATIONS --PLEADING.-This was a suit by Boles against Walter and Henry Baugh to have a certain deed declared void, and to subject the real estate conveyed thereby to sale for the payment of a debt due from Henry Baugh to the plaintiff. The complaint stated that in 1851 Henry Baugh was appointed guardian of certain minor heirs, and gave bond with the plaintiff as his surety; that he received certain moneys of his wards, and afterwards purchased real estate, the deed for which he did not put on record; that becoming involved in debt he destroyed the deed and procured the grantors to execute another for the same real estate to his son Walter, for the purpose of defrauding his creditors, and that no consideration passed from Walter to Henry other than natural love and affection; that, afterwards, being threatened with suit by the wards of said Henry, as surety on his bond, plaintiff paid said wards the amount of their claim; that Henry had been absent from the State for fifteen years, and was presumptively dead, and that Walter was his sole heir at law. The complaint prayed that the deed to Walter might be set aside and the property sold for the beuefit of creditors. A demurrer to the complaint was overruled, and on trial the jury gave a verdict declaring the conveyance fraudulent and ordering the real estate to be sold. Held, that the complaint did not state facts sufficient to constitute a cause of action against Walter Baugh. It failed to allege the date of the deed, but shows that Henry 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 exceptions contained in the statute, it is bad on demurrer. 46 Ind. 231; 55 Ind. 347. The complaint in this case shows that the cause of action was apparently within the statute, but does not show that it is not within any of the exceptions contained in the statute. It was not therefore bad on this ground. Henry Baugh, although a party to the suit, was presumptively dead. After the lapse of five years the appellee could have procured the appointment of an administrator of his estate, and obtained an order for the sale of the real estate. Appellee's cause of action was a claim against Henry, and survived against his personal representatives and not against his heirs at law. He can not maintain an action against Walter as the heir at law of Henry, until there has first been an administrator, under the law, of said decedent's estate. 59 Ind. 510; 66 Ind. 66, 245. Reversed. Opinion by Howk, J. -Baugh v. Boles.
DECEDENT'S ESTATES-SET-OFF AGAINST CLAIMS OF. This was an action by Convery as administrator of the estate of Gerhard Ruter, deceased, against