Slaughter v. State ex rel. Chase

2 Ind. 220 | Ind. | 1850

Blackford, J.—

The State on the relation of Chase, administrator of Rogers, brought a suit in a justice’s Court against Slaughter, a justice of the peace, and his sureties, on their bond. No plea was filed or required. Judgment by the justice for the defendants. The plaintiff appealed to the Circuit Court. The cause was submitted to the Circuit Court on the following facts:

On the 5th of May, 1846, Rogers, the intestate, recovered a judgment before said justice, Slaughter, against one Archibald and others for 64 dollars.*.,-On the first of December following, after an execution had issued on said judgment, Rogers, being indebted to said Slaughter about 40 dollars on a note, and being pressed by him for payment, told him, Slaughter, that he should have the first money collected on the judgment; that he had set the same apart for him, and he should have it. Rogers also verbally authorized Slaughter to appropriate and apply said judgment when collected to said note. Slaughter, thereupon, at the request of Rogers, did not press him further for the payment of the note. On the 1st of Jan-nary, 1847, Rogers died intestate; and, on the 20th of that month, Chase administered on his estate. On the 1st of February, 1847, Chase applied to Slaughter for the amount of said judgment, and finding it not collected, told Slaughter that when the same should be collected, he must pay it over to him, said administrator. On the 12th of February, 1847, Slaughter', as such justice as aforesaid, received on said judgment from the defendants therein the sum of 40 dollars — being 38 dollars over and above the costs. Chase, on the same day, after the 40 dollars were paid, demanded said 38 dollars of Slaughter; but he refused to pay the same or any part thereof to Chase, and applied the same to said note due to himself from Rogers.

The Court, on the above facts, gave judgment for the plaintiff.

We have no doubt but that this judgment is right. Slaughter had nothing but a verbal authority to apply the money, when paid on the judgment, to the payment of his debt. That authority ceased on the death of Rogers. The money being collected after Rogers’s death, belonged to his administrator. The following are authorities on the subject: Where a power was given, coupled with an interest, namely, a power to a creditor to sell a share in a vessel, out of which he was to pay his own debt, it was held to be at once revoked by the death of the debtor who had given it. A power coupled with an interest, said Lord Ellenborough, cannot be revoked by the person granting it; but it is necessarily revoked by his death. How can a valid act be done in the name of a dead man? Watson v. King, 4 Camp. 272, S. C.- — -1 Stark. R. 121. And the same point seems to have been determined in a case in equity, where a power to a creditor to receive a debt, expressly for the purpose of liquidating the claim of the creditor, unaccompanied, however, by any actual assignment of the debt, or by any security to which the power might have been ancillary, was held to be revoked by the death of the principal. Lepard v. Vernon, 2 Ves. and Beam. 51. — Patey on Agency, 186.

D. Mace, for the appellants. II. W. Chase, for the appellee. Per Curiam.

The judgment is affirmed with 5 per cent. damages and costs.