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house of said agent, paying him up the value (as the number of therefor the amount the agent had feet of lumber à portable saw-mill bid for it and a certain sum for back can saw in a day), and which is pe. rent, C. furnishing the money, which culiarly within the knowledge of A, never refunded or offered to re- the seller, upon the seller's statefund. C. continued to occupy the ment of which the buyer can rely house, always claiming it as his own, without negligence, the false statetill his death, when his sole heir ment may constitute a ground for sold the lot and the house in the rescission......

Did street, hy two separate and distinct 3. Same.-If the buyer relies upon a sales, to D. Suit by A. against D. statement of the scller that the forto recover possession of the house in mer will make a good and profitable the street as personal property, the trade by the purchase, it is the barabove facts appearing in evidence, er's own folly.......

...... Ib.d. but there being no written evidence 4. Same.--Promise.—The failure of of title to the lot in C. or D.

the seller to keep a mere promise, to Held, that, in the absence of a convey- be performed after the sale is com

ance to C., in terms sufficiently com- plete, is not a ground for rescisprehensive to cover the house as sion.......

...... Ibid. appurtenant to the lot, it was rea- 5. Same.-- Fraud.- Diligence. — The sonable to presume that it was prop- party claiming to rescind a contract crly treated by the parties as per- of sale on accouut of fraud must act sonalty.

at once upon discovery of the fraud; Held, also, that there was no trust in and he cannot postpone discovery favor of A.

by neglect to use ordinary diligence. Held, also, that a subsisting indebted- This rule must be strictly enforced

ness of C. to A. growing out of a where the law affords a complete partnership which had cxisted be- remedy in damages.... .Ibid. tween them long prior to the pur-6. Same.-Injury.—To authorize a rechase of the house by the former, scission of a contract of sale on the could not be deemed a refunding by ground of fraud, there must be an A. of the money paid by C. for the injury shown as the result of that house. Foy et al. v. Reddick.....414 fraud.......

...... Toid.

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See Railroad, 9.



1. Sale.-Suit by the buyer to rescind

an executed contract for the sale of

one-half of a portable mill. Hcld, 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. Ileld, 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. Sieve

king et al. v. Litzler..................13 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



See CRIMINAL LAW, 2, 19 20.



ue (as the number of feet of lumber a

portable saw-mill can saw in a day), See Highway.

and which is peculiarly within the

knowledge of the seller, upon the RULES OF COURT.

seller's statement of which the buy

er can rely without negligence, the Supreme Court, abstracts. See DOHERTY false statement may constitute a v. McWORKMAN, 383.

ground for rescission.............. Ibid.

3. Same.-If the buyer relies upon a 1. Change of Venue.- Circuit Court. statement of the seller that the for

A rule of the circuit court requir- mer will make a good and profitable ing an application for a change of trade by the purchase, it is the buyvenue on account of local prejudice er's own folly..

..Ibid. to be made at least one day before 4. Same.- Promise.—The failure of the day for which the cause is dock- the seller to keep a mere promise, eted for trial, is reasonable and to be performed after the sale is comwithin the express power of such plete, is not a ground for resciscourt to adopt. The Jeff., Mad., & sion......

Ibid. Ind' pois R. R. Co. v. Avery...... 277 5. Same.- Fraud.- Diligence. The 2. Same.-Where it is clearly made party claiming to rescind a contract

to appear that some act performed of sale on account of fraud must act within the excluded time has ex- at once upon discovery of the fraud; cited such prejudice, or that such and he cannot postpone discovery sceling already existing was undis- by neglect to use ordinary diligence. covered by reasonable effort, the casc This rule must be strictly enforced presents such special circumstances where the law affords a complete as to exclude the application of such remedy in damages............... Ibid. rule intended for general conve- 6. Same.--Injury.-To authorize a renience.......

Ibid scission of a contract of sale on the

ground of fraud, there must be an S

injury shown as the result of that fraud....


7. Fraud.-- Agent.—On a sale of goods

it was agreed that the buyer should See Criminal Law, 2, 5, 19, 20. give to the seller, in payment, upon

delivery of the goods, notes of solSALE.

rent persons. A certain note so

given was not such as the contract See PLEADING, 12.

thus called for, and the buyer,know

ing this, fraudulently deceived the 1. Rescission.-Suit by the buyer to seller's agent, to whom he delivered

rescind an executed contract for the the note, knowing him to be such

sale of one-half of a portable mill. agent and knowing that the proTIeld, that an averment that the seller ceeds of the sale were to go to, and

never intended that the buyer should become the property of, the agent, derive any benefit from the mill, or who, on discovering the deceit, ofexercise any control over it, could fered to return the note to the buy

add no force to the complaint. cr and demanded of him other good Held, also, that the fact that after the notes. There being evidence of these

sale was completed the buyer was facts in a suit by the seller against not permitted to collect money or the buyer, the plaintiff bringing the examine the books, could not cntitle note into court and offering to rehim to rescind the contract. Sieve- turn it to the defendant; there was

king et al. v. Litzler..................13 a finding for the plaintiff in a cer2. Same.- Misreprescntation.- Valuc. tain sum, and that the defendant be

A misrepresentation by the seller as entitled to withdraw the note from to the value of the article offered for the files of the court and hold it as salo is not available to rescind the

his own. contract; but where a fact is stated Held, that the finding was correct. falsely which goes to make up the val- Kinney v. Blythe.......


8. Doceit.- Where a seller of goods written order directed to the seller,

knowingly makes falsc representa- for certain trees at specified prices.
tions to the buyer as to their quality, Held, that parol evidence was admis-
but the buyer does not rely upon sible to prove an agreement of the
such representations and is not de- parties at the time of making said
ceived thereby, the seller is not lia- order, that the seller should replace
blc in an action for deceit. Ilagee any of the trees that might not
ct al. v. Grossman......


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

See MORTGAGE, 2, 3.
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 Redemption.-A purchaser of school
liable for deceit....

...Ibid. lands having made default in the
10. Same.-Evidence-Examination of payment of interest on purchase

Goods by Jury.—Upon the trial of money, the lands were resold. By
an action for deceit in the sale of a the law in force at the time of his
quantity of flour, its quality at the purchase, a defaulting purchaser had
time of the sale being in question, à right to redeem within one year
the court refused to permit the flour after sale; by that in force at the
to be examined by the jury, to test time of the resale and at the time of
its odor.

the default, a delinquent purchaser
IIeld, that it was properly exclud. could redeem at any time before

Ibid. sale, but not after.
11. Consideration.-Failure of.-Soit Held, that the right to redeem was

on a note. Answer, that the defend- governed by the latter law. Moor
ant bought of the payee a certain v. Seaton.........
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 See RAILROAD, 5, to ll.
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 Sec City, 1; JUSTIFICATION, 1.
represented, in consideration there-
of, cxecuted the note, and properly

set out the trees; that the same were
not in good condition, but were obtaining by false pretense. See Criy-
wilted, and in bad condition, and INAL LAW, 48 to 54.
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 Statute of Limitations.--Absence from

had wholly failed to replace them. the State on Public Business.- Vol-
Ilcld, that the answer was good on unteer Soldier.--Absence from the

demurrer. Morehead v. Murray et State as a volunteer soldier or ofi-

...418 cer in the army of the United States
12. Same.--Evidence. The trees were constitutes absence on public busi-

delivered to the buyer upon his ness within the meaning of the stat-
ute which provides, that "the time STATUTE OF LIMITATIONS. during which the defendant is a non-resident of the State or absent 1. Reasonableness of Time.- Where a on public business shall not be com- right springs, not from a contract, but puted in any of the periods of limi- from legislative enactment, the actation" (2 G. & II. 161, sec. 216). tion to enforce a claim under such Gregg v. Matlock...... ....373 enactment may be limited by law;

and the legislature is the exclusive SPECIAL FINDING.

judge of the reasonableness of the

time allowed within which the acSee PRACTICE, 28.

tion may be brought. De Moss et al.

v. Newton et al.......... ....219 SPECIAL VERDICT.

2. Same.- Minors.--No exception can

be claimed in favor of minors, unSee VERDICT.

less they are expressly mentioned

by the statute as excepted ...... Ibid. SPIRITUOUS LIQUORS. 3. Same.- Descent.-- Widow.-A man

died in 1854, seized in see simple of See CRIMINAL LAW, 2, 19, 20. certain real estate, Icaving surviving

him widow and brothers and sisSTATUTE.

ters, but no child, or father, or

mother. The widow took possession Sec EVIDENCE, 10, 11.

of the entire property. Suit for

partition, the plaintiffs claiming title Legislative Intepretation. It is not or- to an undivided interest in the land

dinarily thc function of the legisla- as brothers and sisters of the deture to interpret statutes; nor is ceased. such interpretation binding upon Held, that it was a sufficient answer, the courts as to a past transaction, that before the commencement of but as to matters occurring there- the action more than ninety days had after such legislation guides all the elapsed from the 9th of March, 1867, departments of the government. when section 3 of the act of March Dequindre et al. v. Williams ......444 4th, 1853, (Acts 1853, p. 55), was

repcaled and such limitation fixed STATUTE OF FRAUDS.

to the right of action under its pro

visions. (Acts 1867, p. 204)... Ibid. 1. Verbal Contract.— Partner.- A4. Absence from the State on' Public

partnership liability may become an Business.- Volunteer Soldier.-Abindividual debt against one member sence from the State as a volunteer of the firm, by contract, not in writ- soldier or officer in the army of the ing, between the partners, with the United States constitutes absence on consent of the creditor. Ilopkins v. public business within the meaning Carr

...260 of the statute which provides, that 2. Parol Lease. To Commence in "the time during which the defend

Futuro.-A parol lease of lands for ant is a non-resident of the State or the term of one year, to commence absent on public business shall not thirty days after the making of the be computed in any of the periods contract, is valid within the Statute of limitation” (2 G. & H. 161, sec. of Frauds; and the lessee may main- 216). Gregg v. Matlock...........373 tain an action against the lessor to recover possession according to the STATUTES CONSTRUED. terms of the lease. Huffman v. Starks......

474 See Court or Common PLEAS, 2; Cria3. Same.-It seems that the parties INAL LAW, 4, 5, 6, 9, 19; Descent,

to such a lease may have such rem- 4; ELECTION, 1; Evidence, 9; Fugiedies for violations of the contract TIVE FROM JUSTICE, 1; New Trial, as would appertain to violations of 1; OFFICE AND Officer, 3, 4, 5; Parother valid contracts. Stackberger v. TIES, 4; PartiTION OF LANDS, 1; Mosteller, 4 Ind. 461,questioned.Ibid. PRACTICE, 1; TURNPIKE, 1.

1. Trust.--Executed Use.-Section 13, will, done by design, purposely.

1 G. & H. 652, applies where the Murphy v. The State...... ..511
trust is expressly declared and the 6. False Pretenses. The statute 2 G.
beneficiary named in the convey- & H. 445, sec. 27, does not require,
ance, the title of the trustee being as an element of the offense thereby
nominal only; in which case this defined, that the falso representation
statute executes the use. Gaylord should be made for the purpose of

et al. v. Dodge........................ .41 accomplishing the particular thing
2. Interest.-Rate of upon Judgment. which does result. A false pretense

The act of 1867, increasing the such as would tend to produce the
maximum rate of interest to ten result accomplished, an obtaining
per cent., when that rate is provided thereby, and designedly, a thing of
for by contract in writing, does not value from another, and an intention
affect the third section of the act of by the transaction to defraud that
1861, enacting, that "interest on a other, are the only elements of the
judgment, or decree for money, shall offense. Todd v. The State ........514
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 See RAILROAD, 14, 15.
six per cent., and if there was no
contract by the parties as to inter- STOCK SUBSCRIPTION.
cst, then at the rate of six dollars a
year on one hundred dollars." Smith

V. Thomas..........

3. Town Vacation of Ilighway.--

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.
IIeld, that the board of trustees of the Of petition to county com'rs for organ.

town had not power under the ninth ization of turnpike company; estoppel.
clause of section 22 of the act for See TURNPIKE, 4.
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

Sec Criminal Law, 2, 9, 19, 20.
4. Criminal Law.— Term of Imprison-

ment.-- Where a defendant was sen-
tenced to an imprisonment in the

See HiguwAY, 3.
county jail for ninety days, and un-
til a fine of one dollar and the costs

of the prosecution were paid or re-

Held, that when the imprisonment for
the ninety days had been completed,

Rules of court, abstracts. See DOHERTY
that portion alone of the sentence

v. McWORKMAN, 383.
was discharged, and there remained

the imprisonment for the fine and
costs--that the defendant was not Sce PRINCIPAL AND SCRETY.
entitled, under sec. 130, 2 G. & I.,
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 See LANDLORD AND TENANT.

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