15 Ind. 64 | Ind. | 1860
This was an action commenced on May 28, 1857, against John K. King, a justice of the peace, and his sureties, Oliver Morton, Isaac Lamb, and Alfred Lashly,
At the proper time, the defendants moved to suppress the deposition of William R. Hubble, on two grounds. 1. Because, for the adjournment from the second to the third of September, no reason is given. 2. No deposition was taken on'the third, and, therefore, an adjournment to the fourth was unauthorized by the notice. There seems to be nothing in these
During the trial, the defendants, Morton, Lashley and Lamb, the sureties in the bond, produced John F. King, their principal, who had been defaulted, and by him, offered to prove, “ That when the claim was left with him, it was not to be sued on, or official steps taken for its collection; that Hays <& Santa, who owed the claim, had left in his hands divers claims to be collected, and there was a verbal arrangement between them and the relators, that when he, King, collected money on Hays c& Santa’s claims, he might apply it to the relators’ claim, and that nothing applicable to their claim, ever came into his hands.” To the proof of these facts, by the proposed witness, an objection was sustained, and the defendants excepted. It is conceded that King, being a co-defendant, would have been incompetent under the old system of procedure; but insisted that the rules of practice now in force, authorized his examination as to the facts stated. The code says: “ A party may be examined on behalf of his co-plaintiff, or co-defendant, as to any matter in which he is not jointly interested, or liable with such co-plaintiff or co-defendant, and as to which a separate and not a joint judgment shall be rendered.” 2 R. S., p. 97, §-302. This, as has been seen, was a joint suit, upon a joint and several bond, and if the matter proposed as evidence, tended to prove that there was no cause of action against the defendants, or either of them, it was, evidently, matter in which they were all interested, and could not, therefore, be proved by a co-defendant. He may, it is 'true, be called as a witness, but can not be examined touching
The next inquiry relates to the evidence given on the trial. It was proved that King's term of office commenced in November, 1852, and expired in November, 1856 ; that on October 18, 1856, he gave the relators a receipt in these words; “ Received of Ilubble, Alexander (& Driver, for collection, an account on Hays & Banta, for $89 and 60 cents.” (Signed) !c John F. King f and that the account described in the receipt was left with him “ to collect as a justice of the peace.” But the only evidence tending to prove that he had collected the account, is found in the testimony of one Jacob B. Julian, who testified as follows: “ Three or four weeks before suit was brought, the above receipt was sent to me, and I called on King, who said he had collected the money on the claim, and would pay it over in a few days; but he failed to do so, and I brought suit.” As we have seen, this suit was commenced May 28, 1857. The appellants contend, that the evidence is insufficient, because it fails to prove that King received the money before his term of office expired. This position seems to be correct. In view of the condition of the bond, it was incumbent on the plaintiff to prove, affirmatively, that the money, alleged to have been collected by the justice, was in his hands “ during his continuance in office.” Otherwise, the
The judgment is reversed, with costs. Cause remanded, &c.