house of said agent, paying him therefor the amount the agent had bid for it and a certain sum for back rent, C. furnishing the money, which A. never refunded or offered to refund. C. continued to occupy the house, always claiming it as his own, till his death, when his sole heir sold the lot and the house in the street, by two separate and distinct sales, to D. Suit by A. against D. to recover possession of the house in the street as personal property, the above facts appearing in evidence, but there being no written evidence of title to the lot in C. or D. Held, that, in the absence of a conveyance to C., in terms sufficiently comprehensive to cover the house as appurtenant to the lot, it was reasonable to presume that it was properly treated by the parties as personalty.

Held, also, that there was no trust in favor of A.

Held, also, that a subsisting indebted

3.

4.

5.

ness of C. to A. growing out of a partnership which had existed between them long prior to the pur-6. chase of the house by the former, could not be deemed a refunding by A. of the money paid by C. for the house. Foy et al. v. Reddick.....414

REPRESENTATIONS.

See PLEADING, 12; SALE.

RESCISSION.

1. Sale.-Suit by the buyer to rescind an executed contract for the sale of one-half of a portable mill. Held, that an averment that the seller never intended that the buyer should derive any benefit from the mill, or exercise any control over it, could add no force to the complaint. Ield, also, that the fact that after the sale was completed the buyer was not permitted to collect money or examine the books, could not entitle him to rescind the contract. Sieveking et al. v. Litzler..... 2. Same.- Misrepresentation.-Value. A misrepresentation by the seller as to the value of the article offered for sale is not available to rescind the contract; but where a fact is stated falsely which goes to make

13

up the value (as the number of feet of lumber a portable saw-mill can saw in a day), and which is peculiarly within the knowledge of the seller, upon the seller's statement of which the buyer can rely without negligence, the false statement may constitute a ground for rescission....... Ibid. Same.-If the buyer relies upon a statement of the seller that the former will make a good and profitable trade by the purchase, it is the buyer's own folly.... ........ Ibid. Same.-Promise.-The failure of the seller to keep a mere promise, to be performed after the sale is complete, is not a ground for rescission....... Ibid. Same.- Fraud.- Diligence.- The party claiming to rescind a contract of sale on accouut of fraud must act at once upon discovery of the fraud; and he cannot postpone discovery by neglect to use ordinary diligence. This rule must be strictly enforced where the law affords a complete remedy in damages............................. Toid Same.-Injury.-To authorize a rescission of a contract of sale on the ground of fraud, there must be an injury shown as the result of that fraud........ Ibid.

RESERVED QUESTION.

See STATE v. MORGAN, CG.

RESIDENCE.

See GUARDIAN AND WARD, 5.

RESPONDEAT SUPERIOR.

See RAILROAD, 9. RESTRAINT OF TRADE.

See DAMAGES, 2.

RESULTING TRUST.

See TRUST.

RETAILING LIQUOR.

See CRIMINAL LAW, 2, 19 20.

RETURN.

See JUSTIFICATION, 1.

ROADS.

See HIGHWAY.

RULES OF COURT.

Supreme Court, abstracts. See DOHERTY v. MCWORKMAN, 383.

1.

2.

Change of Venue.- Circuit Court. A rule of the circuit court requiring an application for a change of venue on account of local prejudice to be made at least one day before the day for which the cause is docketed for trial, is reasonable and within the express power of such court to adopt. The Jeff., Mad., & Ind' pois R. R. Co. v. Avery......277

Same. Where it is clearly made to appear that some act performed. within the excluded time has excited such prejudice, or that such feeling already existing was undiscovered by reasonable effort, the case presents such special circumstances as to exclude the application of such rule intended for general convenience....... Ibid.

S

SABBATH.

See CRIMINAL LAW, 2, 9, 19, 20.

SALE.

See PLEADING, 12.

1. Rescission.-Suit by the buyer to rescind an executed contract for the sale of one-half of a portable mill. Held, that an averment that the seller' never intended that the buyer should derive any benefit from the mill, or exercise any control over it, could add no force to the complaint. Held, also, that the fact that after the sale was completed the buyer was not permitted to collect money or examine the books, could not entitle him to rescind the contract. Sieveking et al. w. Litzler..............................................13 Same.-Misrepresentation.- Valuc. A misrepresentation by the seller as to the value of the article offered for sale is not available to rescind the contract; but where a fact is stated falsely which goes to make up the val

2.

3.

4.

5.

ue (as the number of feet of lumber a portable saw-mill can saw in a day), and which is peculiarly within the knowledge of the seller, upon the seller's statement of which the buyer can rely without negligence, the false statement may constitute a ground for rescission.............. Ibid. Same. If the buyer relies upon a statement of the seller that the former will make a good and profitable trade by the purchase, it is the buyer's own folly.... .Ibid.

Same.- Promise.-The failure of the seller to keep a mere promise, to be performed after the sale is complete, is not a ground for rescission...... Ibid.

Same.-Fraud.- Diligence.-The party claiming to rescind a contract of sale on account of fraud must act at once upon discovery of the fraud; and he cannot postpone discovery by neglect to use ordinary diligence. This rule must be strictly enforced where the law affords a complete remedy in damages............... Ibid. 6. Same.-Injury.-To authorize a rescission of a contract of sale on the ground of fraud, there must be an injury shown as the result of that fraud.... ....... Ibid.

7. Fraud.-Agent.-On a sale of goods it was agreed that the buyer should give to the seller, in payment, upon delivery of the goods, notes of solvent persons. A certain note so given was not such as the contract thus called for, and the buyer, knowing this, fraudulently deceived the seller's agent, to whom he delivered the note, knowing him to be such agent and knowing that the proceeds of the sale were to go to, and become the property of, the agent, who, on discovering the deceit, offered to return the note to the buyer and demanded of him other good notes. There being evidence of these facts in a suit by the seller against the buyer, the plaintiff bringing the note into court and offering to return it to the defendant; there was a finding for the plaintiff in a certain sum, and that the defendant be entitled to withdraw the note from the files of the court and hold it as his own.

Held, that the finding was correct.

Kinney v. Blythe...............140

8. Deceit. Where a seller of goods
knowingly makes false representa-
tions to the buyer as to their quality,
but the buyer does not rely upon
such representations and is not de-
ceived thereby, the seller is not lia-
ble in an action for deceit. Hagee
et al. v. Grossman.....
.223
9. Same.-Where a seller has made
false representations as to the qual-
ity 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....
.Ibid.
10. 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 the sale being in question,
the court refused to permit the flour
to be examined by the jury, to test

11.

its odor.

IIeld, that it was properly exclud-
cd.......
Ibid.
Consideration.-Failure of.-Suit
on a note. Answer, that the defend-
ant bought of the payee a certain
number of fruit trees; that it was
agreed by them that said trees should
be in good condition, and that if any
of them should not grow, the seller
would replace them with other good
trees; that on the day the note was
given (in November), the seller de-
livered said trees, and represented
them to be as provided for by said
contract; that the defendant, not
being experienced in the nursery
business, believing the trees to be as
represented, in consideration there-
of, executed the note, and properly
set out the trees; that the same were
not in good condition, but were
wilted, and in bad condition, and
wholly worthless; that defendant did
not and could not know their con-
dition till long after the note was
executed; that they did not grow, of
which the seller had notice on the
1st day of the next June; yet he
had wholly failed to replace them.
Held, that the answer was good on
demurrer. Morehead v. Murray et
al......

...418

12. Same.-Evidence.-The trees were
delivered to the buyer upon his

written order directed to the seller,
for certain trees at specified prices.
Held, that parol evidence was admis-
sible to prove an agreement of the
parties at the time of making said
order, that the seller should replace
any of the trees that might not
grow.
....Ibid.

SATISFACTION.

See MORTGAGE, 2, 3.

SCHOOL LANDS.

Redemption.-A purchaser of school
lands having made default in the
payment of interest on purchase
money, the lands were resold. By
the law in force at the time of his
purchase, a defaulting purchaser had
a right to redeem within one year
after sale; by that in force at the
time of the resale and at the time of
the default, a delinquent purchaser
could redeem at any time before
sale, but not after.

Held, that the right to redeem was
governed by the latter law. Moor
V. Seaton..........
.11

SERVANT.

See RAILROAD, 5, to 11.

SET-OFF.

See PLEADING, 26.

SHERIFF.

See CITY, 1; JUSTIFICATION, 1.

SIGNATURE.

Obtaining by false pretense. See CRIM-
INAL LAW, 48 to 54.

SOLDIER.

See JUSTIFICATION, 4.

Statute of Limitations.--Absence from
the State on Public Business.- Vol-
unteer Soldier.-Absence from the
State as a volunteer soldier or offi-
cer in the army of the United States
constitutes absence on public busi-
ness within the meaning of the stat-

ute which provides, that "the time during which the defendant is a non-resident of the State or absent on public business shall not be computed in any of the periods of limitation" (2 G. & II. 161, sec. 216). Gregg v. Matlock............ ..373

SPECIAL FINDING.

See PRACTICE, 28.

SPECIAL VERDICT.

See VERDICT.

SPIRITUOUS LIQUORS.

See CRIMINAL LAW, 2, 19, 20.

STATUTE.

See EVIDENCE, 10, 11.

Legislative Intepretation.-It is not ordinarily the function of the legislature to interpret statutes; nor is such interpretation binding upon the courts as to a past transaction, but as to matters occurring thereafter such legislation guides all the departments of the government. Dequindre et al. v. Williams......444

STATUTE OF FRAUDS.

1.

STATUTE OF LIMITATIONS.

Reasonableness of Time.-Where a right springs, not from a contract, but from legislative 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. De Moss et al. v. Newton et al...... ............219 2. Same.-Minors.-No exception can

be claimed in favor of minors, unless they are expressly mentioned by the statute as excepted......Ibid. 3. Same.-Descent.- Widow.-A man died in 1854, seized in fee simple of certain real estate, leaving surviving him a widow and brothers and sisters, but no child, or father, or mother. The widow took possession of the entire property. Suit for partition, the plaintiffs claiming title to an undivided interest in the land as brothers and sisters of the deceased.

Held, that it was a sufficient answer, that before the commencement of the action more than ninety days had elapsed from the 9th of March, 1867, when section 3 of the act of March 4th, 1853, (Acts 1853, p. 55), was repealed and such limitation fixed to the right of action under its provisions. (Acts 1867, p. 204)... Ibid.

2.

3.

.260

Absence from the State on Public Business.- Volunteer Soldier.-Absence from the State as a volunteer soldier or officer in the army of the United States constitutes absence on public business within the meaning of the statute which provides, that "the time during which the defendant is a non-resident of the State or absent on public business shall not be computed in any of the periods of limitation" (2 G. & H. 161, sec. 216). Gregg v. Matlock...........373

STATUTES CONSTRUED.

See COURT OF COMMON PLEAS, 2; CRIMINAL LAW, 4, 5, 6, 9, 19; DESCENT, 4; ELECTION, 1; EVIDENCE, 9; FUGITIVE FROM JUSTICE, 1; NEW TRIAL, 1; OFFICE AND OFFICER, 3, 4, 5; PARTIES, 4; PARTITION OF LANDS, 1; PRACTICE, 1; Turnpike, 1.

1.

.41

Trust.-Executed Use.-Section 13,
1 G. & H. 652, applies where the
trust is expressly declared and the
beneficiary named in the convey-
ance, the title of the trustee being
nominal only; in which case this
statute executes the use. Gaylord
et al. v. Dodge..........
2. Interest.-Rate of upon Judgment.
The act of 1867, increasing the
maximum rate of interest to ten
per cent., when that rate is provided
for by contract in writing, does not
affect the third section of the act of
1861, enacting, that "interest on a
judgment, or decree for money, shall
be from the date of signing until
the same be satisfied, at the rate per
cent. agreed upon by the parties in
the original contract, not exceeding
six per cent., and if there was no
contract by the parties as to inter-
est, then at the rate of six dollars a
year on one hundred dollars." Smith
v. Thomas......
..280

3.

Town-Vacation of Highway.—
The corporate limits of a certain
town extended to and along the
middle of a county road, thirty feet
in width, located before the town
was laid out.

Held, that the board of trustees of the

town had not power under the ninth
clause of section 22 of the act for
the incorporation of towns, 1 G. &
II. 624, to vacate so much of said
highway as was within the corpor-
ate limits. Debolt v. Carter et al.355
4. Criminal Law.-Term of Imprison-
ment. Where a defendant was sen-
tenced to an imprisonment in the
county jail for ninety days, and un-
til a fine of one dollar and the costs
of the prosecution were paid or re-
plevied;

Held, that when the imprisonment for
the ninety days had been completed,
that portion alone of the sentence
was discharged, and there remained
the imprisonment for the fine and
costs that the defendant was not
entitled, under sec. 130, 2 G. & II.,
421, to a credit of fifty cents per
day upon the fine and costs from the
date when his imprisonment com-
menced. Ex Parte Tongate......370
5. Manslaughter.- Words-Definition
of.--The word "voluntarily," in our
statutory definition of manslaugter,
means, by the free exercise of the

will, done by design, purposely.
Murphy v. The State....511
6. False Pretenses.-The statute 2 G.
& H. 445, sec. 27, does not require,
as an element of the offense thereby
defined, that the false representation
should be made for the purpose of
accomplishing the particular thing
which does result. A false pretense
such as would tend to produce the
result accomplished, an obtaining
thereby, and designedly, a thing of
value from another, and an intention
by the transaction to defraud that
other, are the only elements of the
offense. Todd v. The State........514

STOCKHOLDERS.

See RAILROAD, 14, 15.

STOCK SUBSCRIPTION.

See PRACTICE, 28.
SUBROGATION.

See MORTGAGE, 1.
SUBSCRIBER.

Of petition to county com'rs for organ
ization of turnpike company; estoppel.
See TURNPIKE, 4.

SUNDAY.

See CRIMINAL Law, 2, 9, 19, 20.

SUPERVISOR.

See HIGHWAY, 3.
SUPREME COURT.

See PRACTICE.
Rules of court, abstracts. See DOHERTY
v. MCWORKMAN, 383.

SURETY.

Sce PRINCIPAL AND SURETY.

SURVIVORSHIP.

See HUSBAND AND WIFE, 1, 2.

T
TENANT.

See LANDLORD AND TENANT.