Carley v. Lewis and Another. nant will lie on a covenant in a deed against a lessee, notwithstanding a third person be at the time the actual tenant, and the lessor has recognized him as such; and against his executors, notwithstanding he may have assigned in his lifetime, and the rent accrues subsequent to his death. The reason given for the rule is this, that the privity of contract of the testator is not determined by his death, and the executor shall be charged with all his contracts so long as he has assets. 3 Mod. 326. In another case, (Cro. Ja. 522,) it is said that in covenants en fait, a covenantor and his executors are always chargeable, and that the executors are not chargeable by reason of the privacy of contract, but by reason of the covenant. But though some cases may differ in assigning the reason of the rule, they all concur in the rule itself. There is no instance, however, that I have met with, of a case exactly like the present, where the covenant for rent was upon an estate in fee. They are all upon terms for years, and it seems, accordingly, to be severe to apply the rule to the present case; for here the executors, or the personal estate, receive no consideration for the payment of the rent, since, on the death of Platner, the estate must have descended to the heirs at law. "In answer to this objection, I observe, that the responsibility of the executors to pay rent, accruing subsequent to their testator's death, is not placed upon the ground that they have the fund in hand, but upon the ground of the express covenant of their testator, from which no act that he can do will discharge him, or discharge them, so long as they have assets." So the lessor has his election, either to sue the lessee on his covenant reserving rent, or follow the land in the hands of his assignee. Thus circumstanced, this court is not prepared to say that the course pursued by Morgan's administrator, believing as he did, that the estate was solvent, was not the best for the interest of the estate; at least it was not such an abuse of his trust as would prevent a court of equity from reliev 21 28 137 558 138 331 Hingle v. The State. ing the parties from the consequences of a mistake as to the solvency of the estate. It is true that a mistake, purely of law, is no ground of relief in equity, but it may be accompanied by such circumstances as will entitle the party to relief. 1 Story's Eq. Jur. $134. We think this case comes within the rule of equity that a mistake of law, accompanied by mutual surprise as to the relative rights growing out of a somewhat complicated transaction, may be the ground for equitable relief, and as the common pleas court, having jurisdiction of the trust, has thought this a case in which the relief ought to be extended, we are not inclined to interfere. The judgment is affirmed, with costs. George C. Clark, for appellant. A. W. Hubbard and L. & W. O. Sexton, for appellees. HINGLE V. THE STATE. THREE CASES. CONSTITUTIONAL CONSTRUCTION-TITLES OF LAWS.-The words "subject” SAME. The insertion in the act to regulate the liquor traffic, of a section Hingle v. The State. violation, (1 G. & H. sec. 14, p. 615,) is not in violation of sec. 19 art. 4 of the Constitution, but is matter properly connected with the subject of the act. Lauer v. The State, 22 Ind. 461, overruled. SAME-SPECIAL LAWS.-A special law, within the meaning of sec. 22 art. 4 of the Constitution, is such an act as at common law the courts would not have taken notice of, unless specially pleaded and proved, as any other fact, and sec. 14 of the liquor law of March 5, 1859, supra, which confers concurrent jurisdiction on the circuit and common pleas courts for the trial of offenses under that law, is not special legislation within the prohibition of the Constitution. APPEAL from the Marion Circuit Court. FRAZER, J.-These cases involve the question of the constitutionality of the fourteenth section of what is known as the liquor law of 1859. That section attempts to confer jurisdiction of cases prosecuted for the violation of the act, upon both the common pleas and circuit courts. The appellant makes two objections to the constitutionality of the section in question, and both are pressed with much zeal, and supported by an argument of great plausibility. We will consider these objections in the order in which they are made. 1. That the section is unconstitutional because the matter embraced in it is not properly connected with the principal subject of the act; and, indeed, forms a distinct subject of itself. The question thus presented is not here for the first time. In Thomasson v. The State, 15 Ind. 449, it was considered in a general way, and the section held to be free from valid constitutional objection. That case was ably argued, and was, evidently, carefully considered. Indeed, six other cases, involving the same question, were decided at the same time. It ought to be stated, however, that the particular argument now under examination may not, in that case, have been brought to the attention of the court. In Lauer v. The State, 22 Ind. 461, the ruling was the other way, and upon this point Thomasson v. The State, was overruled. opinion, in the latter case, is very brief, the reasoning unsatisfactory, and we believe that the decision was not generally The Hingle v. The State. expected by the bar. We think it was not regarded as putting the question fully at rest. Among the first cases which came before the court, as now composed, was Reams v. The State, 23 Ind. 111, in which the same question was involved, and the argument now under consideration was pressed. We gave it that careful examination which such a question ought always to receive, and the more because of the previous decisions of the court upon it. The result was, that we held sec. 14 free from conflict with the constitution. Afterward, in Robinson v. Skipworth, 23 Ind. 311, we found ourselves again required to examine and interpret that clause of the constitution (art. iv. sec. 19.) In that opinion we expressed more fully than before, our views of the purpose and meaning of the constitutional requirement. Desiring, however, the aid of every argument which might assist us, we have, in these, and several other cases, deemed the question still open, and have delayed this decision in order to give opportunity for the fullest presentation of every consideration which might weigh against the opinion, on this point, expressed by us heretofore. We are now favored with a discussion which, probably, leaves little to be said upon that side of the question, and we find ourselves but confirmed in the opinion expressed in the cases alluded to. Section 19 art. iv. of the constitution, after having been in force thirteen years, and after having been considered and applied by this court no less than twenty-six times, seems to be as far from being settled in its meaning and application as it was in the beginning. The cases which have not been expressly overruled, and which stand to guide the legislature, and the other courts, seem to us not easily reconcilable with each other, upon any principle. A few cases have been decided here, in the decision of which the court has laid down rules, which, if adhered to, would probably have prevented confusion, but, afterward, cases have been decided in apparent antagonism therewith, but without expressly calling in question the previous rulings, Hingle v. The State. or giving any reason whatever for the departure from landmarks apparently established after thoughtful and intelligent consideration. Thus, more than once, have salutary and useful measures of legislation been held void, and this provision of the constitution, intended to prevent certain well known practices in legislation, which had grown into a serious evil, became itself a greater curse, we fear, than had been the vices which it was intended to cure. It is time that its purpose and meaning should, if possible, be settled upon principles capable of somewhat general application. In the opinion of Mr. Justice Gookins, in Beebe v. The State, 6 Ind. 501, and in Brandon v. The State, 16 Ind. 197, The Bank, &c. v. New Albany, 11 Ind. 139, and Robinson v. Skipworth, supra, this has been, to some extent, done. Indeed, if the mischiefs of our previous legislation, which were intended to be remedied by the constitutional provision shall always be borne in mind, and that to prevent those mischiefs was its sole purpose, and the only use to which it can be legitimately applied by the courts, it seems to us that we shall have adopted an easy test of almost every question that can be made upon it, relieve the legislature from that embarrassment which, in a great degree, tends to paralyze its power for good, and vindicate fully, from serious and growing doubt, the wisdom of the restriction. To say that a matter may not constitutionally find a place in an act, because it more logically belongs to a subject which is different from that which constitutes the principal burden of the act, or that it might itself properly constitute the subject of a separate act, is but to insist that but one subject, or matter, may be embodied in a single act. But the constitution does not so require. It authorizes one subject, and any number of matters, provided they have any natural or logical connection with each other in legislation. The words "subject" and "matter," are often used as synonymous. Indeed, in the sense in which they are cmployed in the constitution, they are as nearly so as it is possible for two English words to be, and both are used simply |