fore, sanctioned by a statutory rule of practice. 2 R. Nov. Terin, S. p. 48, s. 99. Per Curiam.-The judgment is affirmed with 10 per cent. damages and costs. H. W. Chase and J. A. Wilstach, for the appellant. 1856. HUNT V. HALL. HUNT v. HALL and Another. All the partners may be bound after the dissolution of the partnership, APPEAL from the Union Circuit Court. Monday, DAVISON, J.-Hunt sued Edward Hall and Clark Roby December 1. upon a promissory note, in these words: "Brownsville, Indiana, September 1, 1854. Due Aaron Hunt, or order, 549 dollars and 76 cents, for value received. Hall and Roby," The defendants answered the complaint-1. By a general denial. 2. That they never executed the note, either as individuals or as partners; and that one George W. Roby and the said Edward Hall, composed the firm of Hall and Roby. This paragraph was verified, &c. The plaintiff replied that the defendants, in the year 1845, entered into copartnership, for an indefinite period, in the mercantile business at Brownsville, under the name of Hall and Roby; that Hall resided in Brownsville, and had the care and management of the business, and Clark Roby, though an ostensible partner, resided, and still resides, on his farm, three miles distant from V. HALL. Nov. Term, said town; that George W. Roby, named in the answer 1856. is the son of the defendant, Clark Roby, and when the HUNT partnership commenced, was an infant, but is now twenty-three years old; and at all times since such commencement, has been and still is a clerk in said mercantile house of Hall and Roby. And the plaintiff having previously dealt with said firm, and having no notice by publication or otherwise, that Clark Roby had retired therefrom, contracted with Hall, and upon the faith of the partnership of said Hall and Clark Roby, loaned him, at their counter 549 dollars and 76 cents, to be used in the business of that firm, and for the payment of which, Hall executed the promissory note in suit. To the reply, there was a demurrer sustained. Judgment for the defendant. The only question raised in the case relates to the sufficiency of the reply, so far as it alleges new matter in avoidance of the answer. The rule is, that "all the partners may be bound after the dissolution of the partnership, by a contract made by one partner, in the usual course of business, and in the name of the firm, with a person who contracted on the faith of the partnership, and had no notice of the dissolution." Collyer on Part. s. 530. As we understand the reply, it admits that when Hall executed the note, Clark Roby was not a member of the firm; but alleges that the plaintiff, at that time, had no notice of its dissolution, and loaned the money, to be used in the business of the partnership, on the faith of the defendants, who, as he then believed, still composed the firm of Hall and Roby. This seems to be substantially within the rule. True, there is no direct averment that the money was loaned in the usual course of business; still the purpose of the loan, and the faith on which it was made, show the contract to be such as is not unusual in the business of merchants. We incline to the opinion that the facts stated in the reply avoid the answer. Per Curiam.-The judgment is reversed with costs. Cause remanded, &c. J. Yaryan, for the appellant. THE MADISON AND INDIANAPOLIS RAILROAD COMPANY v. If a party voluntarily abstain from claiming the right of trial by jury in The whole of the act of 1853 entitled, "An act to provide compensation The third section of the act is unconstitutional and void, so far as it in- The first section of the act is also void so far as it gives, as to amount, unlimited jurisdiction to justices of the peace. The legislature did not transcend its powers, or violate private right, in enacting that railroad companies shall fence their roads, or pay for the cattle they kill or injure. Nov. Term, 1856. THE MADISON AND INDIAN APOLIS RAIL- V. WHITENECK. 8 217 133 151 8 217 145 593 147 198 APPEAL from the Johnson Court of Common Pleas. Monday, December 1. PERKINS, J.-Suit commenced before a justice of the peace to recover the value of a heifer killed by a locomotive on the Madison and Indianapolis Railroad. Recovery before the justice, and appeal to the Common Pleas. In that Court, the defendant not appearing, judgment was rendered for plaintiff without the intervention of a jury, for double the amount of the judg ment before the justice, &c. A point is made which may be briefly disposed of before entering upon the main questions in the cause. It is said a jury should have been called to assess the NOTE. The subject of legislative power is discussed at great length, and with much learning, in the opinion of Judge PERKINS; but as the majority of the Court agree in nothing but the conclusions reached by the judge's course of reasoning, nothing more is embraced in the syllabus and index. 8 217 150 101 Nov. Term, damages, notwithstanding the failure of the defendant 1856. to appear, as the case stood upon the general issue. THE MADISON A ND INDIAN The constitution of our State does not say that trials APOLIS RAIL- shall be by jury. It says, "The right of trial by jury shall remain," &c. If a party voluntarily abstains from WHITENECK. claiming the right in a given case, we think it may be ROAD CO. V. judicially held that it is waived. Hence, the statute enacting that such act shall be regarded as a waiver, is valid. 2 R. S. p. 115. The suit was instituted under the act of March 1, 1853 (Laws of 1853, p. 113), relative to compensation for animals killed or injured by railroad machinery; and as the act is short and gives rise to several somewhat weighty questions now to be considered, we insert it, except the repealing section, in this opinion. It follows: An act to provide compensation to the owners of animals killed or injured by the cars, locomotives, or other carriages of any railroad company in this State. Approved March 1, 1853. SECTION. 1. Be it enacted by the General Assembly of the State of Indiana, That whenever any animal or animals shall be killed or injured by the cars, or locomotives, or other carriages used on any railroad in this State, the owner thereof may go before some justice of the peace of the county in which such injury occurred, and file his complaint in writing, and such justice shall fix a day to hear said complaint, and shall cause at least ten days notice to be served on the railroad company defendant, by service of summons by copy on any conductor of any train passing through said county. SEC. 2. On the hearing of said cause, the justice or jury trying the same shall give judgment for the plaintiff for the value of the animal destroyed or injury inflicted without regard to the question whether such injury or destruction was the result of willful misconduct or negligence, or the result of unavoidable accident. SEC. 3. If the defendant shall appeal from such judg ment, and shall not reduce the damages assessed twenty per cent., the appellate court shall give judgment for double the amount of damages assessed in such appellate court, and a docket fee of 5 dollars. Nov. Term, 1856. THE MADISON AND INDIAN- V. SEC. 4. This act shall not apply to any railroad securely fenced in, and such fence properly maintained by such WHITENECK. company. It is contended that this act is unconstitutional 1. Because the object of it is not indicated in its title. It is claimed to be, in fact, an act to compel railroads to fence in their tracks, and to inflict penalties on the exercise of the right of appeal. 2. Because it is a special act. And, 3. Because it violates private right. It is further insisted that its third section is unconstitutional because it impairs the right of appeal. 1. We do not think the whole act void for inconsistency with its title. Its immediate purpose is there expressed. The act contains an exception as to railroads that are fenced; but we think the exception so properly connected with the subject-matter of the act designated in the title, as rightly to appear in it under that title. 2. We do not think the act void simply because it is special. There is no provision of the constitution prohibiting, in terms, special legislation on the subject of railroads; and, from the peculiar character of the subject, we cannot say such legislation may not be proper. Special subjects may require some special legislation; and when it takes place it will be for the Court to judge, as in the Clay county case and the Lafayette murder cases, under section 23, of article 4, of the constitution, whether more general legislation could reasonably have been made applicable (5 Ind. R. 4, and 7 Ind. R. 326); and, also, whether such special legislation conflicts with any other constitutional provision. 3. The act is alleged to infringe private rights and principles of natural justice, because it makes requirements of railroad companies beyond those contained in the laws under which they organized, and unwarrant |