White v. Rankin

2 Blackf. 78 | Ind. | 1827

Holman, J.

The first error assigned and relied on in this case, is, that the writ of inquiry was improperly awarded. It is said, that the capias was not executed ten days before the term of the Court in which the writ of inquiry was awarded; and the declaration, it seems, was not filed when the capias issued, but was filed in open Court, and but .one day before tire defendant was called, and the writ of inquiry awarded; and there was- no interlocutory judgment. The awarding of the writ of inquiry, without an interlocutory judgment, was merely informal. Had the writ been executed the same term in which the declaration was thus filed, the defendant might have had some cause of complaint; but the cause was continued for several terms; and before the inquest of damages, the defendant appeared by his counsel. Having thus appeared, and raised no objections to the proceedings in the cause, all previous ir? Regularities are thereby cured.

A second train of objections grows out of the declaration. The declaration states that Samuel Ban/cin, Spencer Hogland, and John Matthews, county commissioners of the county of Scott, complain of James V. White, administrator of James L. White, deceased, of a plea of trespass on the case; for that whereas James L. While, in his life, time, was indebted to the plaintiffs in the sum of 100 dollars, for so much money, before that time, had and received by him to the use of the said plaintiffs; and the breach assigned is, that neither the intestate, nor the administrator, had paid the said sum to the said plaintiffs.

It is here objected, first,-that the plaintiffs sued as a corporation, and appeared by their attorney at -law, instead of their attorney in fact; secondly, that during the pendency of this suit, the powers and duties'ofthe county commissioners were transferi’ed, by act of assembly, to the board of justice®; and that the commissioners ceased to' have any -legal existence, and could not therefore .maintain the suit; thirdly, that the .commissioners could sue for money due to the county only, which money is always' payable to the county treasurer, and that ¡therefore the breach, in. this case, should have been, that the money was not paid to the county treasurer. All these objections are answered together by a reference to the declaration. The plaintiffs in the Circuit Court do not appear to have sued as a corPoration5 nor ^or moneys due to the county. It is true that they stylo themselves county commissioners, but they do not state that the money is due to them as commissioners. They lay it as if due to them in their own right, for money had and received, not to the use of the county, but to their, own use; and the judgment is given to them in their own right, and not for the use of the county. If this money belongs to the county, the way is open for the county to obtain it; but there is nothing in this record to show that the county has any claim upon it; so that the style of county commissioners, adopted by the plaintiffs, can only be considered as a descriptio personarum.

Thornton, Thompson, and Howk, for the plaintiff. Nelson, for the defendants. Per Curiam.

The judgment is affirmed with 5 per cent, damages.