28 Ind. 9 | Ind. | 1867
— Martha F. Abbott, the appellee, filed in the Court of Common Pleas a claim against the estate of Amos M. Garriott, deceased, founded on four promissory notes for twenty-five dollars each, .executed by Garriott, in his lifetime, to said Martha, by the name of Martha E. England.
Munden, the executor of Garriott, appeared and filed an
The only errors assigned relate to the rulings of the court in sustaining the demurrers to the third, fourth and fifth paragraphs of the answer.
The third paragraph alleges that the notes mentioned in the complaint were given by the decedent to the plaintiff for the purpose of procuring the release of one Samuel Garriott, the son of the decedent, who was a minor, from an illegal arrest upon a charge of bastardy, preferred against him by the plaintiff before a justice of the peace, and were given while the said Samuel was in the custody of an officer and under duress, wherefore it is claimed that the notes were without any valid consideration.
This paragraph is clearly bad. The allegation that the arrest of Samuel Garriott was illegal amounts to nothing, in the absence of proper averments showing how or why it was illegal. It admits that he was arrested by an officer, on a charge of bastardy preferred against him by the plaintiff before a justice of the peace, and that the notes were given by the decedent to procure his release. These facts are sufficient, nothing appearing to the contrary, to raise a presumption that the arrest, was made by a proper officer, upon a legal warrant, issued upon a proper affidavit, or in other words, that the arrest was legal.
The arrest of the accused in such cases is directed by the statute, (2 G. & H., p. 624,) and the prosecuting witness is authorized to dismiss such a suit, at any time before final judgment, by entering of record an admission that provision for the maintenance of the child has been made to her satisfaction. 2 G. & H., § 17, p. 628.
The fifth paragraph is substantially the same as the fourth.
Section 17 of the bastardy act provides that, “the prosecuting witness may, at any time before final judgment, dismiss such suit, if she shall enter of record an admission that provision for the maintenance of the child has been made to her satisfaction. Such entry shall be a bar to all other prosecutions for the same cause and purpose.”
The fourth and fifth paragi-aphs of the answer allege that the notes were executed by the decedent when his son Samuel was under arrest on the charge of bastardy, upon the agreement of the plaintiff that she would enter of record an admission that provision for the maintenance of the child had been made to her satisfaction; they are pleaded as a bar to the whole action, but fail to allege that the pi’omise of the plaintiff to enter the admission of record constituted the entire or only consideration for the notes; on the contrary, it is fairly inferable, from the facts alleged, that it did not do so. The paragraphs show that Samuel was under arrest at the time the notes were executed; the dismissal of the suit would discharge him from that arrest,
We think the court did right in sustaining the demurrer.
The judgment is affirmed, with five per cent, damages and costs.