2 Blackf. 374 | Ind. | 1830
This case originated before a justice of the peace. Several statements of the demand were filed, which are designated in the record by the letters B, C, D, E, and F. Statement B is a transcript from the docket of Justice Beeler, showing a suit by M’Creary, assignee of Fike, against Thompson, on two sealed notes, due in December, 1829. Statement C is an amended statement, alleging that the notes filed as a cause of action, were assigned by Fike to the plaintiff, in consideration of a wagon and oxen; that, after tbe assignment, the plaintiff discovered that Thompson, the maker, was an infant, and
To prove his case, on the appeal, M’Creary introduced several witnesses; some of whom were cross-examined by the defendant. The evidence tended to show the new contract to be, that M’Creary was to sue Thompson on the two notes which were due; and that a failure in such suit on the ground of fraud, or the maker’s infancy, should establish the liability of Fike as averred in the statements of the demand. The transcript from the docket of Justice Beeler, of the suit against Thompson on the notes due, showing a judgment for Thompson with costs, was given in evidence. There was parol proof, that Thompson’s defence in the cause was infancy and fraud; and there was evidence tending to show, that the defendant had a demand for the price of the mare mentioned in the plea. The defendant, having set out the whole of the evidence, proposed to demur to the same, and requested that the jury might be discharged. The plaintiff objected to the demurrer; but the Circuit Court admitted it, and ruled the plaintiff to join. A joinder was filed, and the jury discharged. The defendant obtained judgment on the demurrer.
The plaintiff, M’Crcary, complains of this judgment on these grounds: 1st, that the defendant, after cross-examining the witnesses, could not demur; 2dly, that the plaintiff could not be compelled to join in demurrer; 3dly, that the jury was illegal
On the fourth objection, the plaintiff must succeed. The defendant, to support the judgment, contends, that the contract set out in the statement of the demand, differs from the one proved; the former showing that all the notes were to be sued ■on; the latter, that it was necessary to sue on the two only which were due. This position of the defendant is not sustainable. The several statements of the cause of action relative to what notes were to be sued on, are, when taken together, consistent with the proof. The notes alluded to in the statement marked C, must have reference to the two notes which were due, and which are described in the previous statement marked B. The description of the cause of action, and the evidence, both show that the defendant’s liability to the plaintiff, depended on the result of a suit against Thompson on the notes due in December, 1829. This evidence relative to the notes to be sued on, together with the other testimony given in the cause, conduced to prove all the facts necessary to support the action. Whether, from the evidence set out in the record, a jury would have found for the plaintiff, is not for the Court to decide. There was proof from which a jury might have inferred that the action should be supported; and that was sufficient for the plaintiff. It is our opinion, therefore, that the judgment of the Circuit Court on the demurrer to evidence should have been in favour of the plaintiff.
The judgment is reversed, &c. with costs. Cause remanded, &c.
A re-hearing was granted in this case; but the same judgment in it, as above, was afterwards rendered.