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Crain v. Hilligross.

Clerk thereof, is the proper custodian of the funds. The statute does not require the proceeds to be paid over to the Clerk, or any other officer, but leaves them in the proper custody of the guardian.

For the error in sustaining the demurrer to the first paragraph of the complaint, the judgment must be reversed. Per Curiam.-The judgment is reversed, with costs, and the cause remanded.

R. C. Gregory, for the appellant.
S. C. Willson, for the appellee.

CRAIN V. HILLIGROSS.

PRACTICE DISMISSAL.-Under §§ 363 and 365, of the code, 2 G. & H. 216, a plaintiff may, at any time before the jury retire, or the finding of the Court is announced, dismiss his action, without prejudice; and a defendant, who has pleaded a set-off, must, as to that, be regarded as a plaintiff, and may, therefore, in like manner, dismiss as to his set-off.

APPEAL from the Rush Circuit Court.

WORDEN, J.-Action by Hilligross against Crain on an ac

count.

The defendant answered, amongst other things, in two paragraphs, by way of set-off. The cause was tried by the Court. After trial, and before the finding of the Court was announced, the defendant desired to dismiss his two paragraphs, setting up the set-off, but the Court refused to permit him to do so, and he excepted.

This ruling, we think, was erroneous. A plaintiff has a

Paul v. Ward et al.

right, at any time before the jury retire, or, where the cause is tried by the Court, before the finding of the Court is announced, to dismiss the action without prejudice. 2 R. S. 1852, p. 120, sec. 363. A defendant who pleads a set-off, is, in respect to such set-off, really and substantially a plaintiff. In respect to his set-off, he is the actor, and his set-off is his cause of action. Where a defendant pleads a set-off, the plaintiff must answer it, and can not get out of Court by dismissing or abandoning his action against the defendant. Sec. 365. In such cases, the defendant may have judgment against the plaintiff for the amount of his set-off, and in all cases. where his set-off exceeds the plaintiff's claim. It seems to us clear, that a defendant, in respect to a set-off pleaded by him, should be regarded as plaintiff, and that he comes within the spirit of the statute above cited.

Per Curiam.-The judgment below is reversed, with costs.
L. & W. O. Sexton, for the appellant.
Wm. A. Cullen, for the appellee.

PAUL v. WARD et al.

PRACTICE-PLEADING.-As to what is a sufficient complaint to entitie a party to a writ of capias ad respondendum from a justice's Court, see the opinion at length.

SAME. In actions commenced by capias ad respondendum, if the affidavit is, on its face, sufficient to entitle the plaintiff to the writ, he is entitled to have a trial of the cause upon its merits.

APPEAL from the Wayne Common Pleas.

DAVISON, J.-This was an action by Ward & Taylor against Paul, commenced, by capias ad respondendum, before a justice

Paul v. Ward et al.

The affidavit, upon which the capias was

of the peace.
founded, is as follows:

"STATE OF INDIANA, Wayne County. 'Personally appeared before me, Henry Snyder, a justice of the peace, within and for Jackson township, in said county, Aaron Ward, who, being sworn, says that Jesse Paul, of Dudley township, Henry county, is justly indebted to him and Joseph Taylor, as partners, in the sum of 102 dollars and 92 cents, (to which they have added 10 dollars in damages,) for work and labor, as per bill of items herewith filed; and he further says, that said Jesse Paul is now in said Jackson township, and that he is about to leave the county, taking with him property subject to execution, with which their demand may be paid, with intent to delay them as his creditors; and, further that their claim is due.

"A. WARD.

"Subscribed and sworn to, this 31st of January, 1862. "HENRY SNYDER, J. P."

The bill of items referred to in the affidavit reads thus:

....

Scoring and hewing 549 ft of timber, at 3 cts per ft... $16 47
Getting out 313 sleepers, at 1 cent per foot.......
Framing 75 squares and 18 feet, at 1 dollar per square.
For raising old barn and shed, 4 days......................
For laying 456 feet of flooring..

Damages as above claimed.......

....

They demand judgment for.........

3 13

75 18

700

456

10 00

.$116 34

The defendant, upon the return of the capias, filed an affidavit, alleging, "that, at the time of the filing of the affidavit, and the issuing of the capias, he was, and long previous thereto had been, a resident of Dudley township, in Henry

Paul v. Ward et al.

county, and that he was not about to leave Wayne county, with intent to hinder, delay or defraud his creditors." Upon this affidavit, the defendant moved for his discharge, but his motion was overruled, and thereupon he moved the justice to dismiss the suit on the ground that the plaintiff's affidavit was insufficient. This motion was also overruled, and then he answered, &c. The justice gave judgment for the defendant, and the plaintiff appealed. In the Common Pleas, the defendant again moved to dismiss the suit, because of the insufficiency of the affidavit of the plaintiffs, but the motion. was overruled; and, further, he moved to quash the writ issued by the justice, which motion was also overruled. The issues were then submitted to a jury, who, in answer to interrogatories propounded to them by the Court, found specially, "that when this suit was commenced, the defendant, Jesse Paul was resident of Henry county, Indiana; that he was not at, or about the time of its commencement, about to leave Wayne county, taking with him property subject to execution, or other means, with which any demand of the plaintiffs, in whole or in part, might have been paid, with intent to delay or defraud his creditors, and that there is due from him to the plaintiffs 80 dollars." The jury also found a general verdict for the plaintiffs. Motion for a new trial and in arrest denied, and judgment, &c.

The errors, so far as relied on for a reversal, are thus assigned:

1. The affidavit, on which the capias issued, was insufficient. 2. The Court erred in overruling the motion to dismiss the suit.

3. The jury, having found that defendant was not guilty of fraud, the judgment should have been arrested.

An act, defining the jurisdiction of justices, &c., provides, sec. 24, that "whenever it shall appear, from the affidavit of the plaintiff, that he has a legal demand then due against any

Paul v. Ward et al.

person then in, or about to come in, any county, and that such defendant, as the affiant believes, is about to leave the State or county, taking with him property subject to execution, or other means, with which such demand might be paid in whole or in part, with intent to delay or defraud his creditors, any justice shall issue a capias ad respondendum against the defendant, &c." 2 R. S. G. & H. p. 583.

The affidavit is said to be objectionable, because, as is alleged, it does not state the amount of the indebtedness with any degree of certainty. We think otherwise. The sum due is stated to be 102 dollars and 92 cents, as per bill of items. It is true, the bill foots up 116 dollars and 34 cents, but that does not render the sum alleged on the affidavit uncertain. Properly construed, the affidavit means that the defendant is indebted 102 dollars and 92 cents on the bill of items. The affidavit, in our opinion, is within the substantial requirements of the statute; and that being the case, the motion to dismiss the suit, was correctly overruled.

As we have seen, the third assigned error is, that "the jury, having found that the defendant was not guilty of fraud, the judgment should have been arrested." There is nothing in this assignment. The affidavit being, on its face, sufficient to authorize the writ, the plaintiff was entitled to a trial on the merits. See Harris v. Knapp, at the present term.

Per Curiam.-The judgment is affirmed, with 5 per cent. damages and costs.

Lafe Develin and Geo. A. Johnson, for the appellant.
John Yaryan, for the appellees.

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