De Moss and Others v. Newton and Another.

RAY, J.-The appellants claim title to an undivided interest in certain real estate, as brothers and sisters, and therefore heirs, of Nathan Clark, who died in October, 1854, leaving no father, mother, or children surviving, but leaving a widow who took possession of the entire property.

The claim of the appellants rests upon the third section of the act of March 4th, 1853, amending sections 18, 24, . 25, and 26, of the "act regulating descents and the apportionment of estates." Acts 1853, p 55.

The appellees answered, that more than ninety days had elapsed since the 9th day of March, 1867, when the act of 1853 was repealed and a limitation fixed to the right of action under its provisions. Acts 1867. p. 204.

A demurrer was overruled to this answer, and judgment entered for the appellees.

In the case of Leard v. Leard, 30 Ind. 171, we held this limitation was valid. The act of 1853 was in full force up to the 9th day of March, 1867, and an additional time was then given within which to commence suits for rights acquired

under it.

But appellants insist that the limitation of the right of action to ninety days is unreasonable and in effect divests rights which are vested by law, and it is therefore said to be in conflict with the Constitution of the United States protecting private property. It should be observed, however, that the right here claimed does not arise out of contract, but is conferred by law, and therefore subject to the general control of the power which gave it. In the case of Satterlee v. Matthewson, 2 Pet. 380, 413, Mr. Justice WASHINGTON disposes of this question thus: "The objection, however, which was most pressed upon the court, and relied upon by the counsel for the plaintiff in error, was, that the effect of this act was to divest rights which were vested by law in Satterlee. There is certainly no part of the Constitution of the United States which applies to a state law of this description; nor are we aware of any decision of this, or of any circuit court, which has condemned such a law

DeMoss and Others v. Newton and Another.

upon this ground; provided its effect be not to impair the obligation of a contract."

But before any such an objection could be seriously urged against the law, the court must determine that the limitation to the right of action is an unreasonable one. There is a time given, and the law as stated by high authority seems to be, that "what shall be considered a reasonable time must be determined by the legislature, into the wisdom of whose decision in establishing a legal bar it does not pertain to the jurisdiction of the courts to enquire." Cooley Const. Lim. 366. In Call v. Hagger, 8 Mass. 423, the court say, "It must be left to the discretion of the legislature to fix the proper limitations;" and in Smith v. Morrison, 22 Pick. 430, "whether the time allowed for creditors to commence their actions was a reasonable time or not, was a question within the exclusive province of the legislature to determine."

There is a case in our reports, where the court held that they would allow a reasonable time after the act took effect, for the commencement of suits on causes of action which had already accrued. State v. Swope, 7 Ind. 91. The rule was applied to a right existing under a contract, and was most unfortunate in its citation of authority to sustain it, quoting the case of Peirce v. Tobey, 5 Met. 168, which rests upon the case already cited of Smith v. Morrison, which declares the legislature to be the exclusive judge of the length of time proper to limit the right of action.

The Supreme Court of Kentucky ruled otherwise in a case involving a right of action under a contract. Berry v. Ransdall, 4 Met. Ky. 292; Pearce's Heirs v. Patton, 7 B. Mon. 162. The latter case, however, ruling that a legislature cannot give effect to the invalid execution of a contract or limit the bringing of an action to avoid such a contract, is in direct conflict with The State v. Bennett, 24 Ind. 383; Maxey v. Wise, 25, Ind. 1; Tate v. Stooltzfoos, 16 S. & R. 35; Hepburn v. Curts, 7 Watts, 300; Goshorn v. Purcell, 11 Ohio St. 641; Foster v. Essex, 16 Mass. 245; Raverty v. Fridge, 3 McLean, 230.

Lingerman and Another v. Nave.

The only point, however, that we rule in this case is, that where a right springs, not from contract, but from legisla tive enactment, the action to enforce a claim under such enactment may be limited by law; and the legislature is the exclusive judge of the reasonableness of the time allowed within which the action may be brought.

The appellants, however, insist that the act does not apply to minors, but that they may sue without regard to the, limitation. The act contains no exceptions, and the rule is, "that no exception can be claimed, unless expressly mentioned." Angell Lim. §§ 194, 485; M'Iver v. Ragan, 2 Wheat. 25; Beckford v. Wade, 17 Ves. 88; Beardsly v. Southmayd, 3 Green (N. J.), 171; The Sam Slick, 2 Curt. C. C. 480; Bucklin v. Ford, 5 Barb. 393; Howell v. Hair, 15 Ala. 194.

In Illinois, in certain cases, upon the death of the owner of the title to land, the minor heirs, feme coverts, or persons non compos cannot take any steps for the recovery of the property, and yet the statute having commenced to run continues against them, and this limitation is sustained by the courts. Stearns v. Gittings, 23 Ill. 387.

The court committed no error in overruling the demurrer. Judgment affirmed.

J. B. & J. F. Julian, for appellants.

L. D. Stubbs and J. P. Siddall, for appellees.

LINGERMAN and Another v. NAVE.

PRACTICE.-Supreme Court.-New Trial.-Assignment of Errors.-Where in an assignment of errors the only errors complained of relate to matters occurring on the trial for which a new trial was prayed, but the action of

Hagee and Another v. Grossman.

the court in overruling the motion is not assigned for error, no question is properly raised in this court.

APPEAL from the Hendricks Common Pleas.

ELLIOTT, C. J.-Suit by Nave against the appellants, on a promissory note. Issues were formed, the trial of which resulted in a finding and judgment for the plaintiff' below; a motion for a new trial being overruled.

The judgment must be affirmed. The only errors complained of relate to matters occurring on the trial, and for which a new trial was prayed; but the action of the court in overruling the motion for a new trial is not assigned for error. No question, therefore, is properly raised by the assignment of errors.

The judgment is affirmed, with costs and ten per cent. damages.

J. S. Straughan, for appellants.

C. C. Nave, for appellee.

HAGEE and Another v. GROSSMAN.

SALE. Deceit.-Where a seller of goods knowingly makes false representations to the buyer as to their quality, but the buyer does not rely upon such representations and is not deceived thereby, the seller is not liable in an action for deceit.

SAME. Where a seller has made false representations as to the quality of the goods, but the buyer, in making the purchase, relies on a test of their quality made by his own agent who is not prevented by any act or word of the seller from testing the goods, the seller is not liable for deceit. SAME.-Evidence.-Examination of Goods by Jury.-Upon the trial of an action for deceit in the sale of a quantity of flour, its quality at the time of sale being in question, the court refused to permit the flour to be examined by the jury, to test its odor.

Held, that it was properly excluded.

Hagee and Another v. Grossman.

INSTRUCTION TO JURY.-There is no error in refusing to give to the jury an instruction asked by a party which is not pertinent to the issues.

APPEAL from the Miami Circuit Court.

Suit by the appellants against the appellee. The complaint alleges, that the plaintiffs were engaged in the business of baking bread for sale to the public, which was well known to the defendant; that the defendant, fraudulently and craftily, intending to cheat and defraud the plaintiffs, brought to their bakery twelve hundred pounds of flour, in sacks, which he falsely and fraudulently represented to the plaintiffs to be good, sound, merchantable flour, when, in fact, said flour was musty, worthless, and wholly unfit to be used in said business, which the defendant well knew; that the plaintiffs at the time paid the defendant seventy-five dollars for said flour, being $6.25 per hundred, relying on said representations of the defendant, and believing the same to be true; that after they had paid for the flour, they discovered it was worthless for the purpose for which it was purchased, and thereupon they offered to return it to the defendant, who refused to receive it or to

repay said sum or any part

thereof; whereby the plaintiff's were damaged, &c.

The defendant answered in two paragraphs: first, the general denial; second, that before the sale of the flour to the plaintiff's the defendant took it to their place of business, in sacks, and left it there for several days for them to inspect and try it; that after the plaintiffs had done so and knew the quality of the flour, he sold it to them at $6.25 per hundred, the price agreed upon between the parties, which was less than the market price at that time and place for good, merchantable flour.

Reply, the general denial. Trial by jury; verdict for the defendant, on which judgment was rendered, a motion for a new trial having been overruled.

RAY, J.-The appellants urge a reversal of this case upon the evidence. The only question before the jury was whether the appellants relied upon false representations of