Church and Others v. The Town of Knightstown. of the complaint, and that the plaintiff delivered to the defendants one thousand two hundred and twenty-three bushels of wheat on or about August, 1867, the rule of damages is the price of the wheat at the time of delivery. "6. When payment has been unreasonably delayed for goods sold and delivered, the plaintiff is entitled to interest at the rate of six per cent. per annum; it is for you to determine whether payment has been unreasonably delayed or not, and if so delayed, for how long." The giving these instructions was excepted to, and is assigned for error. They were clearly and fully appropriate to the complaint and the evidence, and we can come to no other conclusion than that this case was brought here for delay (as is suggested in the evidence that it would be if the suit should be brought); and we feel it our duty, as we are satisfied that no wrong was committed by the court below, to affirm the judgment with two per cent damages and costs, which is done accordingly. F. T. Hord, for appellants. CHURCH and Others v. THE TOWN OF KNIGHTSTOWN. TOWN.-Annexing Territory.-Appeal.-The action of the board of county commissioners in annexing contiguous territory, not platted or recorded, to a town, is final, and no appeal lies therefrom. APPEAL from the Henry Circuit Court. DOWNEY, C. J.-This was a proceeding instituted before the board of commissioners of Henry county, for the annexation of contiguous territory, not platted or recorded, to the town of Knightstown, under sections 51 and 52, I G. & H. 630. The commissioners ordered the annexation, and the ob- 35 177 150 571 Partlow v. Haggarty. jectors appealed to the circuit court, where there was a similar result. They now appeal to this court. We have decided, at the present term of this court, in the case of the Trustees of the Town of Princeton v. Manck, ante, p.51, that there is no appeal from the action of the commissioners in such a case, and that their action is final. The judgment is reversed, with costs, and the cause remanded to the circuit court, with instructions to dismiss. the appeal. 7. H. Mellett and M. E. Forkner, for appellants. S. E. Perkins and S. E. Perkins, Fr., for appellee. PARTLOW v. HAGGARTY. VICIOUS ANIMAL.-Whoever keeps an animal accustomed to attack or bite mankind, with knowledge of its dangerous propensities, is prima facie liable to an action for damages at the suit of any person attacked or injured by the animal, without proof of any negligence or fault in the securing or taking care of it. The gist of the action is the keeping of the animal after knowledge of its mischievous disposition. SAME.-Complaint.—Suit to recover for injuries received from being bitten and otherwise injured by a dog. The complaint alleged that the defendant kept the dog, and negligently suffered him to go at large, and that he attacked and bit the plaintiff, without her fault, and greatly lacerated and injured her, &c., and that the defendant had knowledge of the fact that the dog was accustomed to commit such injuries; wherefore, &c. Held, that the complaint was good. APPEAL from the Hamilton Circuit Court. DOWNEY, C. J.-The appellee, by her next friend, sued the appellant for injuries received from being bitten and otherwise injured by a dog kept by the appellant, and which, it was alleged, the appellant knew was accustomed to attack and bite mankind. A demurrer to the complaint on the ground that the same did not state facts sufficient to consti Partlow v. Haggarty. tute a cause of action, was overruled; and this is the first alleged error. The complaint alleges that the defendant wrongfully kept the dog, and negligently suffered him to go at large; that he attacked and bit the plaintiff, without her fault, and greatly lacerated, hurt, bruised, and wounded one of her ankles, by means of which she became dangerously sick, sore, and lame, and suffered and underwent great pain, and incurred great expense. It also alleges knowledge on the part of the defendant, of the fact that the dog was accustomed to commit such injuries, and concludes with a demand for two thousand dollars damages. We think the demurrer to the complaint was properly overruled. Upon an issue formed by a general denial of the complaint, there was a trial by jury, and a verdict for the plaintiff for two hundred dollars. A motion was made by the defendant for a new trial, for the reasons that the verdict was contrary to law, not sustained by the evidence, and because the court refused to give certain charges to the jury asked by the defendant. This motion was overruled, exception entered, and final judgment rendered for the plaintiff, for the amount of the verdict. The overruling of the motion for a new trial is the only other error assigned. The evidence abundantly shows that the defendant knew of the vicious disposition of the dog, and that he had bitten one or more other persons. The defendant had frequently found it necessary to interpose when persons came upon the premises, to prevent the attacks of the dog. The dog was kept at some times chained fast to some fixed object, and at other times the chain was fastened to a piece of wood, which he dragged about with him. On the occasion in question, the defendant was not at home, and his wife had shortly before turned the dog loose. The plaintiff, a little girl, having gone to the house, was assisting the defendant's children, at the request of the wife of the defendant, to catch some chickens. The dog, as she testifies, ran against her, knocked her down, tore her clothes, tried to catch her by the throat, Partlow v. Haggarty. bit her ankle, leg, and other parts of her person, so that she was confined to her bed from that time, the 6th of September, 1869, to the 18th day of December, 1869. There was no evidence materially modifying the testimony of the plaintiff. The court was requested by the defendant to instruct the jury that if the defendant was not present when the biting occurred, and had a short time before left the dog securely fastened with a chain, and some one, without the knowledge of the defendant, turned him loose, shortly before the biting, then the defendant was not liable, whether the dog was vicious or not. Also, that the defendant was not liable for any carelessness that his wife may have been guilty of in turning the dog loose, in his absence, without his direction; and that if the injury was the result of such carelessness of the wife, the jury should find for the defendant. The court refused these instructions, and the point was properly reserved.. Who We think these instructions were correctly refused. ever keeps an animal accustomed to attack or bite mankind, with knowledge of its dangerous propensities, is prima facie liable to an action for damages at the suit of any person attacked or injured by the animal, without proof of any negligence or fault in the securing or taking care of it. The gist of the action is the keeping the animal after knowledge of its mischievous disposition. Addison on Torts, 184. It was the duty of the defendant to see to it that so dangerous an animal was left in safe hands. The judgment is affirmed, with ten per cent. damages and costs. J. W. Evans, for appellant. Sims and Others v. Rickets. SIMS and Others v. RICKETS. HUSBAND AND WIFE.-None of the disabilities imposed upon married women have attached to the condition of a married man, who is as free to receive the title to property, and dispose of it, after marriage as before, except that he cannot by his conveyance affect the inchoate right of his wife to his real estate. SAME.-Conveyance by Husband to Wife.—A conveyance from a husband to his SAME.-Where a wife advances money to her husband, or the husband is SAME.-Contract between Husband and Wife.—Whenever a contract would be 35 181 135 645 35 1811 145 70 35 181 159 619 |