2 Blackf. 237 | Ind. | 1829
This case had originated before a justice of the peace. The transcript of the justices judgment, with the bond on which the suit was founded, was filed in the clerk’d office on the 21 st of December, 1827. Shoemaker was the plaintiff, and Evans, Harris,- and Johnson, were the defendants. . It .was an action of debt ón a penal bond in the sum of 94 dollars, payable to the plainüíf, and dated the 1st of November, 1827. The condition of the bond was, “that if the above hound Andrew Evans does, on the 12th instant, deliver to me in the town of Spencer, three head of horses, taken by virtue of an execution to me directed from the clerk of the Owen Circuit Court in.favour of Thomas Shoemaker, then,” &c. PVevi
In the Circuit Court, a motion was made to dismiss the cause, because, 1st, there had been no statement of the cause of action filed before the justice; and 2dly, the justice had no jurisdiction of the cause. This motion the Circuit Court overruled'. The plaintiff moved to reject the defence filed before the justice; which motion the Court sustained. The plaintiff suggested, on the record, the following breach of the condition of the bond, to wit, “that the said Andrew Evans did not, nor did any other person, deliver the said three head of horses, or either of them, on the said 12th of Novembér, 1827, in the town of Spencer aforesaid, in manner and form as they were bouuá in said condition to do.” The cause was submitted to the Circuit Court without a jury. A judgment was rendered in favour of the plaintiff below for 94 dollars, the penalty of the bond'; and the damages were assessed at'54 dollars and 90 cents, together with costs.
The first error assigned is, that the justice had no jurisdiction of the cause, because the bond on which the suit was founded, was a penal one, conditioned for the delivery of property taken by the sheriff on execution. In answer to this, it must be observed that Üic statute of 1827 gives the justice jurisdiction in
Thejudgment is affirmed, with 5 per cent, damages and costs.
Vide Washburn v. Payne ante, p, 216, and note,