CASES ARGUED AND DETERMINED IN THE SUPREME COURT OF JUDICATURE OF THE STATE OF INDIANA, AT INDIANAPOLIS, NOVEMBER TERM, 1859, IN THE FORTY- BARTON and Another v. SIMMONS.* A person sold land, and agreed to receive in payment certain railroad stock, at a rate which the vendee represented it to be worth in the market. The vendor gave the vendee ten days to procure the necessary amount of stock, and having received the stock within that time, he delivered a deed. Nineteen months afterwards, having ascertained the stock to be worth less than the vendee represented to be its value, the vendor brought suit to rescind the contract, &c. Held, that he was too late, even if he could, at any time, have made a case for rescission. APPEAL from the Madison Circuit Court. HANNA, J.-Simmons avers in his complaint that in December, 1854, he was the owner of certain described lots and land in Madison county, of the value of 3,000 dollars; *A petition for a rehearing of this case was filed on the 18th of Jauuary, and overruled on the 3d of May, 1860. VOL. XIV.-4 Monday, BARTON V. SIMMONS. Nov. Term, that one of said defendants, William Barton, then offered 1859. him 5,000 dollars for said lands, &c., payable in the capital stock of the Cincinnati and Chicago Railroad, representing the same to be of the value of fifty cents on the dollar; that said plaintiff was wholly ignorant of the value of said stock, and so informed said William, but relying upon the honesty and candor of said William, and the representations so made, said plaintiff offered to take 6,000 dollars in said stock for said lands, &c.; that a contract was then made by which plaintiff executed a deed for said lands, &c., and placed it in the hands of a friend to be delivered to said William, if, in ten days, he should procure and deliver said amount of stock; that before the expiration of said time, he did deliver said stock and receive said deed; that said William was a merchant, and often at Cincinnati, and, therefore, had a good opportunity of knowing the value of said stock; that plaintiff lived in an obscure part of said county, and did not know the value of said stock; that said stock was then of the value only of five to seven cents on the dollar, which was known to the said William, but he fraudulently represented otherwise; that it continued of that low value until July, 1856, at which time plaintiff, for the first time, made inquiry as to and ascertained its real value, having theretofore confidently rested upon the representations of the said William as true, and having been engrossed in his business of farming; that immediately, upon so learning the true value of said stock, he tendered the same to said William, and demanded a reconveyance of said real estate, which was refused; that said William thereupon fraudulently conveyed said lands to his co-defendant, his father, who had full notice, and received the same without paying any consideration therefor," &c. There was a demurrer to the complaint, because it did not state facts sufficient, &c. The demurrer was overruled, which ruling presents the first point for our consideration. The demurrer should have been sustained. No sufficient excuse is shown for the delay in making the appli Nov. Term, 1859. BARTON V. cation to rescind, if any good reason ever existed for a rescission of the contract. It is not clear that the representations charged to have been made by the defendant, relative to the value of the stock, were such as the plaintiff SIMMONS. had a right to rely upon; even if the contract had been consummated without delay; but where a delay of ten days intervened between the time the parties agreed upon terms, and the completion of that agreement, we are not able to perceive that the ends of justice would be subserved by holding that one party might fold his arms and declare that he would rest upon the representations made by the other, in reference to a matter equally open and within the reach of the reasonably diligent inquiry of each. Cronk v. Cole, 10 Ind. R. 485. But passing by that point, we are clear that the circumstances are such that the plaintiff ought to have informed himself in less than nineteen months after the contract, and taken immediate steps, based upon such information, to get rid of the contract. If he saw proper to negligently fail to investigate matters thus affecting his rights and interest, the law does not protect him in such negligence, but is for the diligent. Whether stocks are such marketable commodities as to bring a contract, in reference thereto, within the principle laid down in 10 Ind. R. supra, is a point we need not decide; for it is clear that with the exercise of reasonable diligence, a delay of nineteen months ought not to have intervened before the value could have been discovered. The defendant did not occupy any relation towards the plaintiff, or the road, that would justify the plaintiff in reposing peculiar or extraordinary confidence in his representations. Hugh v. Richardson, 3 Story, 639.-Foley v. Cowgill, 5 Blackf. 18.-31 Maine R. 143.— Gatling v. Newell, 9 Ind. R. 572, 581. Per Curiam.-The judgment is reversed with costs. Cause remanded, &c. W. Grose and W. Z. Stuart, for the appellants. D. Kilgore and J. Davis, for the appellee. Nov. Term, 1859. ULMER V. THE STATE.* ULMER V. THE STATE. An indictment will not be quashed because found at an adjourned term of the Circuit Court. Friday, An accessory before the fact may be indicted and tried before the principal; but the indictment must aver the commission of the offense by the principal. The indictment in this case contains that averment. See opinion. It is necessary, in an indictment charging an offense committed without the statute of limitations, to show by averments that the case falls within the exceptions of the statute. The time of absence from the state or of concealment, of the defendant, which may occur during the period of limitation fixed by the statute, must be added to that period. Quare, how the clause of the statute in relation to the concealment of the criminal, is to be construed. The jury may convict upon the testimony of an accomplice. APPEAL from the Lagrange Circuit Court. PERKINS, J.-Indictment, conviction, and sentence to the state prison. The indictment is in these words: "State of Indiana, Lagrange county, ss. "State of Indiana v. George T. Ulmer. "In the Lagrange Circuit Court, October term, A. D. 1858, adjourned to January, A. D. 1859. "The grand jurors of the state of Indiana, duly impan. neled, sworn, and charged, in said Court, at sa'd term, to inquire within and for the body of said county of Lagrange, upon their oath present and charge that one Asa Crape and one William Jones, late of said county, on the 12th day of September, in the year of our Lord eighteen hundred and fifty-six, at and in the county of Lagrange aforesaid, two horses of the value of one hundred dollars each, and one horse, commonly called a gelding, of the value of one hundred dollars, the personal goods and chattels of one Ralph Selby, then and there being found, did unlawfully and feloniously steal, take, lead, ride, and drive away, contrary to the form of the statute in such case *A petition for a rehearing of this case was filed on the 11th of January, and overruled on the 1st of May, 1860. |