2. SAME PURPOSE OF STATUTE.

The first purpose of the statute is to make it a crime for one to offer such an animal for sale, if the person so doing has knowledge of the defect, and conceals its existence from the one to whom it is offered for sale by failing to disclose the facts, while the second is to prohibit the employment of any artifice, etc., to conceal an infirmity, and thereby effect a sale to one ignorant thereof.

3. SAME INDICTMENT OFFERING TO SELL DISEASED HORSE-CONCEALMENT OF DISEASE. An indictment charged that accused unlawfully offered for sale a broken-winded horse, with knowledge of its diseased condition, and concealed the existence of the disease from K., the prospective purchaser named, and did thereby effect the sale of the horse to K., who was ignorant of the existence of the disease, etc. Held, that the indictment was sufficient, since it was unnecessary to set out any facts constituting concealment to charge the offense of offering the horse for sale and concealing its diseased condition, and the allegation regarding the sale could be treated as surplusage.

4. SAME STATUTORY PROVISIONS CONSTRUCTION "CONCEAL."

The word "conceal," as employed in the first part of the statute. is not used in its primary sense, meaning to hide, to cover up, to withhold from observation, but is used in its secondary sense or meaning, which is to withhold from utterance or declaration, to keep secret, to fail to disclose citing Words and Phrases, vol. 2, p. 1377.

[Ed. Note. For other definitions, see Words and Phrases, vol. 2, pp. 1377-1382.]

5. STATUTES-CONSTRUCTION-INTENT OF LEG

ISLATURE.

In construing a statute, courts will endeavor to determine the intent of the Legislature, and in so doing they may and should consider the import of the entire act.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 44, Statutes, §§ 259-263, 282.]

6. SALES-VALIDITY OF CONTRACT-DUTY OF SELLER TO REVEAL LATENT DEFECTS.

It is the duty of one selling personal property to disclose fully and fairly all known defects or infirmities not within the reach of ordinary observation, and failure to do so is a fraudulent concealment of the facts.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 43, Sales, §§ 79-84.]

7. STATUTES - CONSTRUCTION WORDS USED.

- MEANING

OF

When there is nothing in an act itself to indicate that a word or phrase is used in a particular or technical sense, it will be construed in its ordinary and popular meaning, and in accordance with its meaning at the time of the passage of the statute, unless the result would be to defeat the legislative intent.

[Ed. Note. For cases in point, see Cent. Dig. vol. 44, Statutes. §§ 266-280.] 8. SAME-PENAL STATUTES.

Though penal laws are to be strictly construed, they will not be so strictly construed as to defeat the obvious or express intent of the Legislature.

[Ed. Note. For cases in point, see Cent. Dig. vol. 44, Statutes, §§ 322, 323.1

9. FRAUD-CRIMINAL PROSECUTIONS STATUTORY PROVISIONS - SUFFICIENCY

DENCE.

OF EVI

In a prosecution for offering to sell a windbroken horse, with knowledge of the infirmity and concealment thereof, evidence held to sustain a conviction.

Hadley and Gillett, JJ., dissenting in part. Appeal from Criminal Court, Marion County; J. A. Pritchard, Judge.

John Boyer was convicted of offering to sell a horse, known to be broken-winded, and concealing the existence of its defect, and appeals. Affirmed.

Clarke, Clarke & Holderman, for appellant. James Bingham, Alexander G. Cavins, Edward M. White, Henry M. Dowling, and Chas. Remster, for the State.

JORDAN, J. Appellant was prosecuted upon an indictment for offering for sale a certain diseased horse, in violation of a statute approved February 26, 1907 (Acts 1907, p. 100, c. 73). His motion to quash the indictment was overruled, and upon a trial by the court he was found guilty as charged, and his punishment assessed at a fine of $200 and imprisonment in the Marion county workhouse for a period of three months. He unsuccessfully moved for a new trial, and judgment was rendered against him upon the finding of the court.

The errors assigned and discussed by his counsel are the insufficiency of the indictment and the insufficiency of the evidence to support the finding of the court. The statute upon which the prosecution is based, omitting the enacting clause, is as follows: "Whoever shall offer for sale, or exchange for anything of value, any horse or mule, knowing the same to be afflicted with 'glanders,' or any other infectious or contagious disease, or knowing the same to be afflicted with the 'heaves, or to be broken winded,' or to be what is popularly known as a 'roarer,' or a 'cribber,' and shall conceal the existence of such disease from the person to whom he is offering such animal for sale, or with whom he is attempting to effect an exchange thereof, or who shall employ any trick, artifice, drug, or any device of any character whatsoever to conceal the existence of such disease or defect, and shall thereby effect the sale or exchange of such animal to any person who is ignorant of the existence of such disease or defect, and shall by such sale or exchange obtain anything of value, shall on conviction thereof be fined in any sum not exceeding five hundred ($500.00) dollars, to which may be added imprisonment in the county jail or workhouse for a period not exceeding six months." (Our italics.)

The indictment, omitting the formal parts, is as follows: "The grand jurors for the county of Marion and state of Indiana, upon their oaths present that John Boyer on the 15th day of June, A. D. 1907, at and in the county of Marion and state aforesaid, did then and there unlawfully offer for sale a certain horse to Hugo Klingstein for $38 in money, which said horse was then and there diseased in this, to wit, that said horse was then and there broken-winded, he, the said John Boyer, then and there well knowing said horse to be diseased as aforesaid, and did then and there conceal the existence of such disease from said Hugo Klingstein, to whom he was then and there offering said

diseased horse for sale, and did then and there and thereby effect the sale of said diseased horse to said Hugo Klingstein, he the said Hugo Klingstein being then and there ignorant of the existence of said disease, and the said John Boyer did then and there by such sale unlawfully obtain $38 in money of the value of $38 of the personal property of said Hugo Klingstein, contrary," etc.

It is urged by appellant's counsel that the indictment is insufficient because the positive facts constituting concealment of the existence of the disease with which the horse in controversy was afflicted are not alleged or set out in the indictment. The argument is advanced that the concealment contemplated by the statute herein involved must be the result of such affirmative or positive facts as are calculated to prevent a discovery of the existence of the disease by the person to whom the horse is offered for sale or exchange. In respect to the question of concealment counsel seek to have the indictment governed by the rule which obtains in regard to the concealment of the commission of a crime so as to prevent the running of the statute of limitation under section 1666, Burns' Statutes 1901, section 1665, Burns' Supplement 1905, and in civil cases under section 300, Burns' Statutes 1901.

The statute under consideration may properly be divided into two parts. The case at bar apparently is based upon the provisions of that part which we have embraced in italics. These provisions make or declare it to be an offense in case any one offers for sale, or exchange for anything of value, any horse or mule which is afflicted with "glanders," or any other infectious or contagious disease, or which is afflicted with the "heaves," or is "broken winded," or is what is popularly known as a "roarer" or a "cribber," where the person so offering such animal has knowledge at the time of the existence of such disease or infirmity, but conceals the existence thereof from the person to whom he is offering such animal for sale, or with whom he is attempting to effect an exchange thereof. Under these provisions it is not necessary, in order to constitute an offense, that a sale or exchange of such animal should be effected. The offense is complete within the meaning of these provisions of the statute, without regard to whether a sale or exchange of the animal is or is not actually effected, or brought about. Under that part of the statute not included in our italics, if a horse or mule is afflicted with any of the diseases or infirmities mentioned in or contemplated by the first part of the statute, it is an offense for any person to employ any trick, artifice, drug, or any device of any character whatsoever to conceal the existence of such disease or defect, and thereby effect the sale or exchange of such animal to a person who at the time is ignorant of the existence of such disease or defect, and by such sale or exchange obtain anything of value.

The underlying purpose of the statute is, first, to make it a criminal offense, subject to the punishment therein fixed, for a person to offer any horse or mule for either sale or exchange for anything of value, if the animal at the time it is so offered is afflicted with any of the diseases or defects mentioned in or contemplated by the statute, in case the person so offering the animal has at the time knowledge of the existence of the disease or defect in question, but conceals the existence thereof from the person to whom he is offering such animal for sale, or with whom he is attempting to effect an exchange thereof for something of value; second, to prohibit, in case of such afflicted animal, the employment of any trick, artifice, drug, etc., to conceal the existence of such disease or infirmity, and thereby effect the sale or exchange of the animal for value to a person who at the time is ignorant of the existence of the disease or infirmity with which such animal is afflicted.

The word, or term, "conceal," as employed in the first part of the statute, calls for an interpretation. The term manifestly is not there used in its primary sense-meaning "to hide," "to cover up," "to withhold from observation," but is used in its secondary sense, or meaning which is "to withhold from utterance or declaration," "to keep secret," "to fail to disclose." See the words "conceal" and "concealment" in Standard Dictionary, Webster's International Dictionary, and Century Dictionary. In respect to the interpretation of these terms, see, also, 6th Am. & Eng. Ency. of Law, p. 420; 8th Cyc. pp. 543, 544; Words and Phrases (2d vol.) p. 1377; Dale County v. Gunter, 46 Ala. 118, 142; Gerry v. Dunham, 57 Me. 334. It will be observed upon examination that the word "conceal," according to the best lexicographers, also signifies or means "to withhold or to keep secret mental facts from the knowledge of another person, as well as to hide, cover up, or secrete physical objects from sight or observation." The phrase, as employed in this statute, "and shall conceal the existence of such disease from the person to whom he is offering such animal," etc., cannot be said to mean or contemplate any corporeal object to be concealed by the person offering the animal, but evidently means, as the authorities affirm, where the offerer withholds or keeps secret from the person to whom he is making the offer the mental fact, that is, the knowledge which he has in his mind of the existence of the disease or infirmity with which the animal offered is afflicted. Such knowledge the offerer may be said to "withhold or keep secret" by failing to disclose or make known the existence of the disease to the person to whom he is offering the affected animal, and thereby conceal the existence thereof from such person. This appears to us to be the reasonable meaning applicable to the term "conceal," in order to have it express that which was intended

by the Legislature in the employment thereof in the first part of the statute.

Courts, in construing a statute, will endeavor to explore the intention of the Legis lature, and in doing so they may and should consider the import of the entire act. An examination of the provisions of the statute in question in all of its parts reveals, as previously asserted, two leading objects or purposes in its enactment; first, to punish a person who offers to another for sale or exchange for anything of value a horse or mule affected with any of the diseases or infirmities therein mentioned, provided he has knowledge of the existence of such disease or infirmity but withholds or secretes such knowledge from the person to whom the offer is made by failing to disclose to him the fact that the animal is so diseased or affected at the time it is offered for sale or exchange. The statute, under such circumstances, casts upon the person who offers the animal for sale or exchange for anything of value the duty of disclosing or making known the fact to the person to whom it is offered that it is afflicted with the disease or infirmity in question. In fact, the principle affirmed by the authorities, in an action at law for damages arising out of a fraudulent concealment of defects in personal property sold to another, is that "the law presumes that the purchaser reposes confidence in the vendor as to all such defects or infirmities which are not within the reach of ordinary observation, and therefore it imposes upon the vendor the duty to disclose fully and fairly his knowledge, if any he has, of all defects. His failure to do so is held to be a fraudulent concealment of the fact in relation to the defects in question in such property." See Nickley v. Thomas, 22 Barb. (N. Y.) 652; Bench v. Sheldon, 14 Barb. (N. Y.) 66; Fleming v. Slocum, 18 Jobns. 403, 9 Am. Dec. 224. While the Legislature, in the enactment of the law, deemed It proper to point out the particular means which were prohibited from being employed to conceal the existence of the disease, and thereby effect the sale or exchange of the diseased animal to a person without knowledge of its condition, as provided in the second part of the statute, nevertheless it did not deem it essential in the first part of the act to specify any particular means which were prohibited from being used to constitute a concealment of the existence of the disease in a case where the animal is only offered for sale or exchange. It is a cardinal rule in the construction of statutes "that, where there is nothing in the act itself to indicate that a word or phrase is used in a particular, or technical, sense, it is to be taken or accepted in its ordinary and popular meaning. The word or phrase is to be interpreted in accordance with its meaning at the time of the passage of the statute, and it is

only when it will result in the defeat of the legislative intent that the words of the statute will not be construed in their plain, or83 N.E.-23

dinary, and usual sense." Massey v. Dunlap, 146 Ind. 350, 358, 44 N. E. 641; Church v. Knowles, 101 Me. 264, 63 Atl. 1042. It is true, as counsel for appellant contend, that penal laws are to receive a strict construction. However, they are not to be so strictly construed as to defeat the obvious or express intent of the Legislature. Gillett's Criminal Law (2d Ed.) § 20. While, as previously as serted, it was not essential in order to charge an offense against appellant under the first part of the statute that the indictment should allege that a sale of the horse was actually effected or brought about, hence the aver ments in respect to the sale of the horse may be disregarded as surplusage matter, and the remaining allegations therein may be said to sufficiently charge appellant with having violated the first part or italicized portions of the statute by offering the horse, etc. The averments that he "did then and there conceal the existence of such disease from said Hugo Klingstein, to whom he was then and there offering said diseased horse for sale," are sufficient in charging the concealment of the existence of the disease within the meaning of the term "conceal," as employed in the first part of the statute. It follows that the court did not err in overruling the motion to quash the indictment.

There is no room for the contention that the evidence does not support the finding of the lower court. The evidence, among other things, shows that appellant purchased the horse for a small sum of money at a livery barn in the city of Indianapolis in the early part of June, 1907. At the time he purchased the horse he was informed by the persons who negotiated the sale that the animal was wind-broken. Appellant had a barn in the city of Indianapolis where he kept horses for sale, but did not take this particular horse to his barn, but placed it in a stable in the rear of Sullivan's saloon on Alabama street, in said city. This stable was about a mile from his own barn. After buying the horse he is shown to have advertised it for sale in a newspaper, stating therein that the animal was a "sound work horse." Hugo Klingstein, the person to whom the horse was offered for sale by appellant, as hereinafter shown, read the advertisement, and went to the stable in the rear of the saloon hereinbefore mentioned to see the horse. Appellant was not there at the time, but presently drove up in a buggy and offered the horse for sale to said Hugo Klingstein for $38. At the time appellant offered the horse to Klingstein he knew, as the evidence shows, that it was "broken-winded," but Klingstein was ignorant of the fact that the animal was "broken-winded." Appellant did not in any manner disclose, make known, or communicate to said Klingstein the fact that the horse was so affected or diseased, but on the contrary he declared or stated to Klingstein that the animal was a "sound work horse." He finally succeeded in selling the horse to Klingstein for $38, the price at which

claims, as aforesaid, carried with it any right in the assignee to perfect the lien allowed by the provisions of section 7265, Burns' Ann. St. 1901. This precise question was presented to the Supreme Court in the case of Midland, etc., R. R. Co. v. Wilcox, 122 Ind. 84, 23 N. E. 506, and it is there affirmed that such assignment carried with it the right in the assignee to perfect and enforce the lien. The distinction between the assignment of a debt secured by the perfected lien and the assignment of a debt not thus secured, but which might by the act of the original creditor be so secured, does not seem to have been present to the mind of the court in the rendition of this decision, and the assignment is discussed in the opinion of the learned judge who spoke for the court as though the question involved in the case were simply whether or not a perfected mechanic's lien were assignable. It is the opinion of this court that section 7265, giving to persons who perform work or furnish material in the construction of railroads, etc., was intended for the sole benefit of the persons named in the law, and that no lien attaches securing claims for such services or material until notice has been filed in the office of the proper county, as provided in section 7266, Burns' Ann. St. 1901, and that the assignment of such claims by the persons performing such work, or furnishing such material, and entitled under the law to perfect the lien therefor, before such lien is perfected, carries with it no right in the assignee to a lien. The law was not intended for the benefit of such assignee.

This view we think harmonizes with the manifest purpose of the statute, the genera principles of law, and the great weight of the decided cases. It is supported by the following cases: Mills v. La Verne, etc., 97 Cal. 254, 32 Pac. 169, 33 Am. St. Rep. 168; McCrea v. Johnson, 104 Cal. 224, 37 Pac. 902; Dano v. Railroad Co., 27 Ark. 569; Tewksbury v. Bronson, 48 Wis. 581, 4 N. W. 749; Mason v. Germaine, 1 Mont. 272; Brown v. Smith, 55 Iowa, 31, 7 N. W. 401; Langan v. Sankey, 55 Iowa, 52, 7 N. W. 393; Merchant, etc., v. Ottumwa Water Power Co., 54 Iowa, 451, 6 N. W. 709; Frailey, etc., v. Railroad Co., 96 Ky. 570, 29 S. W. 446; O'Connor v. Railroad Co., 111 Mo. 185, 20 S. W. 16; Rollin v. Cross, 45 N. Y. 766; Roberts V. Fowler, 4 Abb. Prac. (N. Y.) 263; Goodman B. & S. Co. v. Pence, 21 Neb. 459, 32 N. W. 219: Brown v. Harper, 4 Or., 89; Casey v. Ault, 4 Wash. 167, 29 Pac. 1048. And the Supreme Court of this state, in the subsequent case of Jenckes v. Jenckes, 145 Ind. 624, on page 634, 44 N. E. 632, on page 635, in speaking of the claims of mechanics or materialmen, say: "Such claims may of course be assigned, but they carry no lien, unless a lien has first been perfected by the mechanic or materialman, and it is only such mechanic, laborer, or materialman that may perfect the lien, and it is only after the

lien has been perfected that it may be assigned." This declaration of the law was not necessary to the decision of that case, and therefore we do not think can be regarded as overruling the case of Midland, etc., R. Co. v. Wilcox, supra, upon this point; but we think it correctly expresses the law, and is entitled to great consideration. In the case of Chicago, etc., v. Glover, 159 Ind. 166, 62 N. E. 11, the Supreme Court held that the assignment of the wages of an employé of a corporation does not carry with it the right in the assignee to collect from the corporation the penalty and attorneys' fees provided for in sections 7056 and 7057, Burns' Ann. St. 1901, which the assignor, had he sued upon the claim, would have been entitled to recover. We think the principle upon which this case is decided does not harmonize with the decision in the case of Midland, etc., Co. v. Wilcox, supra, and that it is in harmony with the decided cases elsewhere upon the same subject.

This case is therefore transferred to the Supreme Court, with the recommendation that the case of Midland, etc., Co. v. Wilcox be overruled upon the point here considered.

(41 Ind. A. 40)

CALDWELL v. BOARD OF COM'RS OF BOONE COUNTY. (No. 6,020.) (Appellate Court of Indiana, Division No. 2. Jan. 14, 1908.)

1. COUNTIES

UNLAWFUL ALLOWING AND PAYING OF MONEY-RECOVERY.

County commissioners having allowed the county assessor, and he having been paid out of the county treasury, more than the limit of compensation to which he is entitled in any year, $3 per day for 180 days, the board of county commissioners can recover of him the money unlawfully allowed and paid to him.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 13, Counties, § 117.] 2. CHAMPERTY.

That one is prosecuting an action pursuant to an agreement by which another shall pay the expenses thereof and share in the proceeds is no ground for dismissing the action, it being only where a champertous contract is sought to be enforced, or in some manner comes in question, that its infirmity can be brought up.

[Ed. Note. For cases in point, see Cent. Dig. vol. 9, Champerty and Maintenance, § 17.] 3. ESTOPPEL-COUNTIES-ADVICE OF COUNTY

ATTORNEY.

A county is not estopped to recover of the county assessor for money allowed and paid him in excess of his legal compensation, $3 per day for 180 days, though before he had been engaged in his duties for 180 days the commissioners, through the county attorney, for the purpose of inducing him to act, represented that the law limiting 180 days as the time for which he could be compensated had been repealed. the county attorney in advising the assessor being his attorney and not the county's.

Appeal from Circuit Court, Boone County; S. R. Artman, Judge.

Action by the board of commissioners of Boone county against Theodore R. Caldwell. Judgment for plaintiff. Defendant appeals. Affirmed.