17 Ind. 517 | Ind. | 1861
Eli Haverstiok sued John F. Hill, to recover personal property, to wit, 200 bushels of Hungarian grass-seed, of the value of nine hundred dollars, which he alleged the defendant unlawfully detained. The defendant answered:
1. General denial.
2. That he received the grass seed at his store, from one Ward, to whom he was accountable, and whom he recognized as the owner, to sell on commission, and claimed a lien upon it for storage, &c., to the amount of two hundred dollars, which he alleged should be paid before removal of the seed by the plaintiff the true owner. It nowhere appears that Ward was the agent of the true owner, or that the latter was a purchaser from Ward. The Court sustained a demurrer to the second paragraph of the answer, and exception was taken. But, nevertheless, the record states that the plaintiff replied to the second paragraph of defendant’s answer, denying every allegation therein.
A jury then came to try the issues. They found for the plaintiff, and as the property was not delivered to the sheriff upon the writ, the plaintiff had judgment for its value.
The evidence is not of record. This case is not governed by Hanna v. Phelps, 7 Ind. 21, but by Coffin v. Anderson, 4 Blackf. 395. See Story on Bailment, p. 297. Perhaps the defendant might have called upon the plaintiff and Ward to interplead. Perk. Prac. 143.
Per Guriam. — The judgment below is affirmed, with 1 per cent, damages and costs.