State ex rel. Sprague v. Carter

6 Ind. 37 | Ind. | 1854

Hovey, J.

Debt on a justice’s bond against James Dugan and Carter, Dugan was not found. There are several breaches in the declaration, to some of which demurrers were filed and sustained; but as the issues upon which the case was tried fully embrace the subject-matter in controversy, it is deemed useless to pass any opinion upon the pleadings.

The facts, as shown by the bill of exceptions, are as follows:

Dugan, as justice of the peace of Centre township, in Hendricks county, received a note of A, W. Sprague Sf Co., for which he executed and delivered the following receipt:

“ Received of A. W. Sprague Sf Co. a note drawn by Benjamin.Davis for 22 dollars and 50 cents, dated May 20th, 1845, at ten days’ sight. Danville, February 26th, 1846. James Dugan, J. P.”

Dugan collected the note in 1846, without suit. It is admitted that Davis was not at any time a resident of Centre township, but that he resided in Brown township, in said county. Sprague Sf Co. demanded the amount collected, but Dugan failed to pay. There is also included in the declaration a claim of 3 dollars and 19 cents, about which there is no controversy, and for which judgment was rendered for the plaintiff below.

The only question is, whether Carter, as surety on the bond, is liable for the amount of the note collected?

It is contended that the justice of the peace would have had no jurisdiction in a suit on the note, as the payor did not reside in Centre township.

This position can not be sustained. The 4th section, R. S. 1843, p. 863, does not necessarily destroy the jurisdiction of justices of the peace in cases like this. The defendant is not compelled to answer out of Ms township except in certain cases specified in that section; but unless he appear and plead to the jurisdiction after being duly served with process, the justice would have the power to render judgment against him. As Dugan receipted for the note as justice of the peace, it will be presumed against him and his surety that he had the power to give the receipt as such, and that his act was legal, until the contrary is shown. There may have been no justice of the peace in Brown township capable of trying the cause, and, if not, he would have had jurisdiction.

C. C. Nave, for the state. J, S. Harvey and J. M, Gregg, for the defendant. Per Curiam.

The judgment is reversed with costs. Cause remanded, &c,