Nov. Term, 1859. EVANSVILLE V. HALL. Corporation stock is, perhaps, to be deemed personal property. For the purposes of taxation, it is defined as THE CITY OF Such by 1 R. S. p. 105, § 5. And if the stock, in this case, is to be considered as "within said city," the city may, undoubtedly, tax it, under the first clause of the section of the charter above quoted. But it seems to us that the stock of the company is not to be deemed within the city, simply because the corporation is located and transacts its business there. Such stocks differ from tangible property that must have an actual location. "Shares in incorporated joint stock companies are not, strictly speaking, chattels; and it has been considered that they bear a greater resemblance to choses in action; or, in other words, they are merely evidence of property. They are, it has been said, mere demands of the dividends as they become due, and differ from movable property, which is capable of possession and manual apprehension." Ang. and Ames on Corp. 316. We are of opinion that the situs of the stocks, in the case at bar, at least for the purposes of taxation, is the domicil of the owner, and cannot be deemed to be within the city. Hence the city cannot levy the tax under the first branch of the section above quoted. This view is supported by what is said in the case of The Bank, &c. v. The City of New Albany, 11 Ind. R. 139. Counsel for the city, in their brief, say that the stock "is situated where the company has its principal office, and does its business." The statute on the subject "of listing corporation and public stocks" (1 R. S. p. 113), does not apply to insurance companies, and we know of no other statute on the subject. But the city is authorized to levy a tax upon "all money and capital within said city, which is, or may be, subject to taxation for county purposes." Admitting that the term "capital," as used in the above section, could be construed to embrace the stocks in question (a proposition which we do not decide), still, in order that the city may tax that capital, it must be taxable for county purposes. We understand the language employed in the city charter to mean, that the money or capital to be taxed by the city, must be taxable for county purposes in the county of Vanderburgh, in which the city is situated. Nov. Term, 1859. BAUGH V. We are of opinion that under the provisions of the act THE STATE. providing for the assessment and collection of taxes (1 R. S. p. 105), particularly the 10th and 23d sections, the stocks in question were taxable for state and county purposes, in the county of Gibson, the residence of the appellee, and not in the county of Vanderburgh. The 23d section requires the owner to make out a list for taxation, amongst other things, of all "corporation stocks," excepting stocks in the Indiana State Bank, and such other stocks as may be specifically taxed. The stocks in question are not specifically taxed, but are taxed as other property, and in the county where the owner resides. It follows that the city of Evansville had no authority to levy and collect the tax in question. Per Curiam.-The judgment is affirmed with costs. S. Hall, in person. BAUGH V. THE STATE. APPEAL from the Bartholomew Court of Common Saturday, Pleas. PERKINS, J.-Information for keeping a nuisance. It is contended that there is no statute on which the information can rest. Ingersoll v. The State, 11 Ind. R. 464, decides otherwise. The information charges that "on the first of March, 1857, at, &c., Michael Baugh erected, and continually from thence hitherto, continued, maintained, and kept," &c. It is insisted that the Court erred in permitting any evidence of the existence of the nuisance, except on the said first day of March. This is frivolous. The information, January 14, 1860. Nov. Term, to the common understanding, plainly enough charges a 1859. continuous nuisance. The word "has" may be supplied, THE INDIAN- if the counsel thinks it will make the pleading more cerRAILRO'D CO. tain. APOLIS, &C., V. MEANS. Per Curiam.-The judgment is affirmed with costs. Saturday, January 14, 1860. THE INDIANAPOLIS AND CINCINNATI RAILROAD COMPANY v. MEANS. The simple killing of an animal by the cars of a railroad company, is not prima facie evidence of negligence on the part of their employès. A party cannot have the benefit of the statute of 1853, making railroad companies liable for animals killed without negligence, unless he prove that the road was not fenced as prescribed by the statute. APPEAL from the Shelby Court of Common Pleas. WORDEN, J.-This was an action by the appellee against the company, commenced before a justice of the peace, a and appealed to the Common Pleas, where it was tried by the Court and judgment rendered for the plaintiff, over a motion for a new trial. In the Common Pleas, as well as before the justice, a motion was made by the defendant to dismiss the cause for the want of a sufficient statement of the cause of action, which was overruled. The cause of action is as follows: "The Indianapolis Railroad Company to Fountain Means, Dr., to one milch cow killed between Brookfield and London, in Shelby county, Indiana, on or about the 4th day of October, 1858; said cow worth $30 00. December 11, 1858." Passing by the fact that this statement of the cause of action purports to be against the Indianapolis, and not against the Indianapolis and Cincinnati railroad company, it may, on its face, be sufficient. Vide Milholland v. Pence, 11 Ind. R. 203. But it would seem that the cause of action sounds in contract, and not in tort. In terms, it makes the defendant the debtor of the plaintiff. Who killed the cow, or how she was killed, does not appear. For aught that appears in the statement, the cow may have been killed by the plaintiff and sold to the defendant for beef, and in this view the cause of action may be sufficient; but it is extremely doubtful whether, under this statement, the plaintiff could introduce evidence of a trespass by the defendant, in killing the cow by the locomotive of the company, upon the railroad track, under such circumstances as would make the defendant liable. But upon these points we shall decide nothing, as the judgment will have to be reversed on other grounds, and when the cause goes back the plaintiff can amend if he sees proper to do so. The evidence offered wholly fails to make out any case whatever. It shows that the cow was killed upon the railroad track, by the train of the company, about a quarter of a mile from Brookfield, but there was no attempt to show any negligence on the part of the company. The simple killing of an animal on a railroad track is not prima facie evidence of negligence. Pierce on Am. Railr. Law, 357. Nor was there any proof that the railroad was not fenced. If the plaintiff relies upon the statute making railroad companies liable without negligence, for animals killed upon the road, the same not being fenced, he must, by his proof, bring himself within the provisions of the statute, and show that the road was not fenced as provided for in the statute. Vide The Indianapolis, &c., Railroad Co. v. Wharton, 13 Ind. R. 509. Per Curiam.-The judgment is reversed with costs. Cause remanded, &c. DAVISON, J., was absent. J. S. Scobey, for the appellants. J. B. McFadden and J. Cartmill, for the appellee. Nov. Term, 1859. THE INDIANRAILRO'D CO. APOLIS, &C., v. MEANS. BROWN V. PERRY. An answer purporting to go in bar of the whole cause of action, but setting up facts in bar of a part only, is bad on demurrer. Assumpsit lay to recover the stipulated price due on a special contract not under seal, where the contract had been completely executed, so that only a duty to pay the money remained, and it was not necessary, in such case, to declare upon a special agreement. This rule is applicable to pleadings under the code. Evidence that the matters for which the suit is brought had been submitted to arbitrators, who had made an award in favor of the plaintiff, is irrelevant under the general issue. An arbitration and award, if relied upon, must be specially pleaded. APPEAL from the Bartholomew Court of Common Pleas. WORDEN, J.-Suit by Perry against Brown. Complaint that defendant owed the plaintiff 100 dollars for house rent and pasturing stock, &c.; also 50 dollars for work done and materials furnished; also 50 dollars for money lent. Demurrer to complaint overruled. The defendant, in the fifth paragraph of his answer, pleaded as follows, viz.: "Said defendant further says that on or about the day of September, 1856, the cattle, horses, and hogs of the said plaintiff and other persons, trespassed upon and damaged the corn of the said defendant to the amount of 100 dollars, and in consideration of said trespass, said plaintiff promised to pay said defendant whatever the damage so done amounted to, which he has failed, and still fails, to do." This paragraph was demurred to on the ground, amongst other things, that it did not state facts sufficient to bar the action. The demurrer was sustained. The rulings on the demurrers are assigned for error. There was no exception taken to the ruling on the demurrer to the complaint, nor is any objection to the complaint pointed out, hence it will be treated as good, although the demurrer to the answer might reach back to it. The demurrer to the answer was correctly sustained. |
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