| Ind. | Nov 30, 1861
Bowler sued Rignbee upon a promissory note made by the latter to one Carney, by whom it was indorsed to one Corey, who indorsed it to the plaintiff, Bowler.
The writ, in the cause, was made returnable on the second
Had the writ been returnable in the Circuit Court, it would have been regular. Perk. Prac. 147. But the Common Pleas act of 1859, requires writs in that Court to -be returnable on the first day of a term. Acts 1859, p. 89.
The naming of a wrong day, in the right term, in the writ, was, however, a mere clerical error, which worked no prejudice. The defendant knew the law, and knew that by it the writ was returnable on the first day of the term. White Water Valley, &c. Co. v. Henderson, 3 Ind. 3" court="Ind." date_filed="1851-11-24" href="https://app.midpage.ai/document/white-water-valley-canal-co-v-henderson-7032016?utm_source=webapp" opinion_id="7032016">3 Ind. 3; Davidson v. Alvord, id. 1; Ziegenhager v. Doe, 1 Ind. 296" court="Ind." date_filed="1849-01-26" href="https://app.midpage.ai/document/ziegenhager-v-doe-7031621?utm_source=webapp" opinion_id="7031621">1 Ind. 296. Had the writ been returnable to a wrong term, or run past a term, it would have been void. Carey v. Butler, 11 Ind. 391" court="Ind." date_filed="1858-12-20" href="https://app.midpage.ai/document/carey-v-butler-7034019?utm_source=webapp" opinion_id="7034019">11 Ind. 391. Por a modification of this rule in attachment cases, see Will v. Whitney, 15 Ind. 194" court="Ind." date_filed="1860-12-05" href="https://app.midpage.ai/document/will-v-whitney-7034921?utm_source=webapp" opinion_id="7034921">15 Ind. 194.
Hie note on which this suit was brought, was not payable at bank; was given in 1855, and was payable December 25, 1859. The defendant answered to the suit, that in 1856, after the giving of the note sued on, and before he had any notice of its assignment, he became indebted to the payee of it in the further sum of three hundred dollars, due at a future day, and the said payee agreed that if the defendant would then pay to Mm the said three hundred dollars, before it fell due, he would extend the time of payment of the note now sued on, till December 25, 1860. And the defendant avers that, in pursuance of said agreement, and as the consideration of such extension of time, he did then and there, and before the same was due, pay to said Camay, the payee of the note, said three hundred dollars, &e.
The Court sustained a demurrer to this answer. The Court erred.
It was held by the Supreme Court of Ohio, in Peck v. Beckwith, 10 Ohio St. Rep. 497, that when the payee and holder of a promissory note, before its maturity, agrees with the maker to give further specified time for its payment, in consideration of a sum of money then and there paid him by the maker, such agreement is a valid contract, and may be set up as a temporary bar in an action brought, before
Per Curiam. — -The judgment is reversed, with costs. Cause remanded, &c.