Brown v. Robbins

1 Ind. 82 | Ind. | 1848

Blackford, J. —

Assumpsit by the plaintiff in error against the defendant in error, commenced before a justice of the peace. The suit was founded on the assignment of a promissory note, which note was executed by one Cloyd. Plea, the general issue. Judgment of the justice for the defendant. The plaintiff appealed to the Circuit Court. On the trial on appeal, the defendant demurred to the plaintiff’s evidence, and the plaintiff joined in demurrer. Judgment on the demurrer for the defendant.

The substance of the evidence was as follows : The note, on the indorsement of which suit was brought, was produced with the indorsement. The note was dated and was due on the 8th of February, 1841. The indorsement was made on the 27th of May, 1842. It appeared, that on the 27th of October, 1842, the now plaintiff, assignee of the note, sued the maker before a justice of the peace, and on the 8th of November following, obtained judgment. On the next day after the judgment was rendered, a fieri facias issued thereon, and was levied on a horse, which horse was afterwards sold on a pluriesfi. fa. for one dollar; the officer stating, in his return to the last named execution, that there was “ no more property on which to levy.”

The plaintiff proved that he gave a valuable consideration for the assignment. He proved that the defendant, at the time, the assignment was made, “stated to the plaintiff, that Gloycl (the maker of the note) was an honest man, and that, by waiting awhile, he would get his money; that Gloycl had been unfortunate, had had his house burned, and was under the weather, and to wait awhile and he, plaintiff, would get his money, or that to wait awhile, and he thought plaintiff would get his money.” The plaintiff also proved, by the constable who sold the horse on the execution, that the horse was not of any value, except that the execution-defendant might have made some use of him in plowing corn; and that the purchaser, the plaintiff’s agent, left the horse on the place. It was also proved by the constable, that the sale was made without appraisement; and that the execution-defendant had no other property subject to execution.

We think, on this evidence, the plaintiff had a right to recover. It appears by the evidence that, at the time of the assignment, the defendant did not think the maker of the note able to pay it, and did not wish that strict legal diligence should be used by the plaintiff to collect the note from the maker. The defendant told the plaintiff, at the time of the assignment, that the maker was an honest man, that he was under the weather, and to wait awhile and he would get his money. The question as to the admissibility of this testimony of what the defendant said when he assigned the note does not arise, as no objection appears to have been made to its admission. It is clear that a jury might have inferred from that evidence, that the plaintiff’s delay in suing the maker, which was five months from the time of the assignment, was authorized by the defendant. That being the case, no laches could be imputed to the plaintiff on account of the time when this suit against the maker jwas commenced. Nance v. Dunlavy, 7 Blackf. 172. It appears that, after the suit was commenced, one dollar was all which, in consequence of the maker’s poverty, could be collected on the note.

The declaration is objected to, because it shows the delay in commencing suit against the maker, without allegmg any excuse for the delay. But the objection would have come too late, even if the suit had been commenced 0jrcüjt 0Ourt; the record showing that the excuse, which was a good one, was proved on the trial. The suit, however, was commenced before a justice of the peace, where no such objection to the declaration can be made at any time. In this case, the mere filing of the note and assignment would have been sufficient.

J. A. Wright and S. F. Maxwell, for the plaintiff. W. P. Bryant and A. L. Ronche, for the defendant. Per Curiam. —

The judgment is reversed. Cause remanded, &c.