Lea, 222. As to laws and ordinances void as being in restraint of trade, see Rochester v. Upman, 19 Minn. 108; Brooklyn v. Breslin, 57 N. Y. 591, 596; Ash v. People, 11 Mich. 347; License Cases, 5 How. 504.

UNIFORMITY OF TAXATION: See the subject discussed in City of Lexington v. McQuillan, 35 Am. Dec. 159.

CITATIONS OF THE PRINCIPAL CASE.-The construction by the principal case of the clause of the California constitution requiring equality and uniformity in taxation was approved in People v. Coleman, 4 Cal. 52; see supra; and in Emery v. San Francisco Gas Co., 28 Id. 360, the language of the principal case, that when the framers of the constitution declared that taxation shall be equal and uniform throughout the state, they must have referred to such general taxation as is commonly imposed alike upon all property, is quoted and approved. The construction of the foregoing clause was also accepted in People v. McCreery, 34 Id. 448, 450, in so far as the clause applied to taxes upon property, the court not expressing any opinion as to its applicability to taxes imposed upon persons, whether as poll taxes or license taxes. The principal case was distinguished in Lin Sing v. Washburn, 20 Id. 581, in holding that an act levying a capitation tax on Mongolians residing within the state was in violation of the provision of the constitution of the United States giving congress power to regulate commerce with foreign powers, in that the case did not decide that foreigners could be taxed merely for the privilege of residing in the state, and the question was therefore not the same; see, however, the case cited in the dissenting opinion of Field, J., p. 584.

CASES

IN THE

SUPREME COURT OF ERRORS

OF

CONNECTICUT.

STATE v. McGowan.

[20 CONNECTICUT, 245.]

WILLFUL BURNING OF UNFINISHED HOUSE, WHICH WAS NEVER OCCUPIED, though designed for a dwelling, and which was not appurtenant to any other, is not arson; as where such house had not been painted, and the glass in one of the doors had not been inserted.

COURT ON TRIAL FOR ARSON SHOULD INSTRUCT JURY WHAT CONSTITUTES DWELLING-HOUSE, leaving them to determine whether the house burned comes within that definition.

INFORMATION for burning a dwelling-house. The facts appear from the opinion. The court left it to the jury to say whether the building in question was a dwelling-house. guilty, and motion for a new trial.

Goodman and A. F. Robinson, for the motion.

B. D. Hubbard, state's attorney, and Chapman, contra.

Verdict,

By Court, CHURCH, J. The statute of this state prescribes the punishment of arson, but it does not define the crime. We look to the common law for its definition. Arson, by the common law, is the willful and malicious burning of the house of another. The word "house," as here understood, includes not merely the dwelling-house, but all outhouses which are parcel thereof: 1 Hale's C. L. 570; 4 Bla. Com. 221; 2 Russ. on Crimes, 551.

This information charges the accused with burning a dwellinghouse, and the question in the case is, whether the building, which was in fact burned by him, was a dwelling-house,

within the meaning of the common law on this subject. That it was a dwelling-house, as distinguished from a building of any other kind, is certain. The building is described to be one built and designed for a dwelling-house, constructed in the usual manner. It was designed to be painted, but was not yet finished in that respect, and not quite all the glass was set in one of the outer doors. The building had never been occupied, and it was not parcel nor an appurtenant of any other. We think this was not a dwelling-house, in such a sense as that to burn it constituted the crime of arson. In shape and purpose it was a dwelling-house, but not in fact, because it had never been dwelt in-it had never been used, and was not contemplated as then ready for the habitation of man.

Arson, as understood at the common law, was a most aggravated felony, and of greater enormity than any other unlawful burning, because it manifested in the perpetrator a greater recklessness and contempt of human life than the burning of any other building, and in which no human being was presumed to be. Such seems to be the spirit of the English cases on this subject, and especially the late case of Elsmore v. The Hundred of St. Briavells, 8 Barn. & Cress. 461; 15 Eng. Com. L. 266; 2 Russ. on Crimes, 556. In that case, Bayley, J., in speaking of the building therein described, says: "It appeared to have been built for the purpose of being used as a dwelling-house, but it was in an unfinished state, and never was inhabited. There can not be a doubt that the building in this case was not a house in respect of which burglary or arson could be committed. It was a house intended for residence, though it was not inhabited. It was not, therefore, a dwelling-house, though it was intended to be one."

A dwelling-house once inhabited as such, and from which the occupant is but temporarily absent, would not fall within the foregoing principle. It may not be necessary to determine another question made in this case-whether it appertained to the court or the jury to determine the character of the building. But we think it was the duty of the court to have instructed the jury as to the law of the matter, and leave it to them to say from the proof, whether the building was a house, within the meaning of the law thus explained.

The considerations we have now expressed induce us to grant a new trial of this cause.

In this opinion the other judges concurred.

New trial to be granted.

AM. DEO. VOL, LII-22

HOUSE," IN INDICTMENT FOR ARSON, imports a dwelling-house, and it is not necessary to state that the house burned was a dwelling-house, and if it appears that it was not a house which is the subject of arson, it is the duty of the court to instruct for an acquittal: Commonwealth v. Posey, 2 Am. Dec. 560. For an extended discussion of the meaning of the term "house," not only in cases of arson and burglary but also in insurance cases, see the note to Workman v. Insurance Co., 22 Id. 144. In State v. Williamson, 42 Conn. 263, it is held, citing the principal case, that on a trial for burglary the court should not pass on the question whether the building in question was such as to be the subject of burglary, but should explain the law upon the subject and submit the question to the jury.

BARTHOLOMEW v. BUSHNELL.

[20 CONNECTICUT, 271.]

DECLARATION FOR BREACH OF WARRANTY IN SALE MAY BE IN TORT OR ASSUMPSIT, at the election of the plaintiff.

DISTINCTION BETWEEN WARRANTY AND FRAUD IN SALE of an unsound article is, that if there is a warranty the contract is broken whether the vendor knew of the unsoundness or not; but if he represented the article to be sound knowing the contrary, and the vendee was thereby defrauded, an action will lie though there is no warranty; but the scienter must be distinctly alleged and proved, and the action must be based on the fraud.

AVERMENT IN ACTION ON WARRANTY, THAT VENDOR KNEW ARTICLE TO BE UNSOUND when he sold it, is unnecessary, whether the form of action be tort or assumpsit.

VENDEE DECLARING ON BREACH OF WARRANTY CAN NOT RECOVER ON GROUND OF FRAUD, because the vendor, knowing the article to be un sound, represented it to be sound, if no warranty is proved; nor is the vendor thereby estopped from denying a warranty, whether the declaration is in tort or assumpsit, and although there is an allegation of scienter, and that the vendor fraudulently and falsely warranted the article. COSTS AND EXPENSES OF SUIT CAN NOT BE INCLUDED IN DAMAGES for a mc.e breach of a contract of warranty.

CASE, the declaration alleging a sale by the defendant to the plaintiff of two horses, and that the defendant fraudulently and falsely warranted said horses to be sound, whereas in fact they were unsound in certain specified particulars, which was known to the defendant and not to the plaintiff, and that by means of the premises the defendant falsely and fraudulently deceived the plaintiff, etc. The purport of the evidence and instructions of the court is sufficiently stated in the opinion. The jury found for the plaintiff as his actual damages, independent of his costs and trouble in prosecuting the suit, and a certain larger sum if he was entitled to anything for his costs and trouble. Motion for a new trial.

Woodruff and Peet, for the motion.

J. H. Hubbard and G. H. Hollister, contra.

By Court, WAITE, J. This is an action founded upon a war ranty as to the soundness of a pair of horses sold by the defendant to the plaintiff. The declaration is in tort, in the usual form, except that it contains an averment that the defendant knew the horses to be unsound, which has generally been omitted as unnecessary, especially since the decision in the case of Williamson v. Allison, 2 East, 446. Such was formerly the usual mode of declaring, but of late the practice has been more general to declare in assumpsit. Still the plaintiff has his election, either to declare in tort or in assumpsit for a breach of a contract of warranty. The former mode will be adopted when he wishes to join in the declaration other counts founded upon the fraud of the defendant, and the latter when he wishes to insert the money counts and other counts appropriate to the action of assumpsit.

On the trial of this cause, the plaintiff introduced evidence to prove that the defendant, at the time of the sale, made certain representations respecting the soundness of the horses, which he knew to be false. The defendant claimed that they were accompanied by a distinct refusal to warrant the horses, and requested the court to instruct the jury that if there was no express warranty the plaintiff could not recover. The jury, however, were not so instructed, but were told that if, at the time of the sale, the horses were unsound, and the defendant, knowing it, made representations calculated and intended to deceive the plaintiff by concealing the unsoundness, and the plaintiff was thereby deceived, the defendant was precluded from saying there was no warranty. The charge seems to proceed upon the ground that proof of fraud, without evidence proving a warranty, would support the declaration. A majority of the court are of opinion that this position is not supported by the authorities.

If

The distinction between a warranty that a personal chattel is sound, and a fraud in the sale of it, is broad and manifest. a man sell a horse to another, and expressly warrant him to be sound, the contract is broken if the horse prove otherwise. The purchaser, in such case, relies upon the contract; and it is immaterial to him whether the vendor did or did not know of the unsoundness of the horse. In either case he is entitled to recover all the damages which he has sustained, by reason of