Richards, &c. v. Stogsdell et al. defendant, Stogsdell. These taxes, together with some taxes against other persons, Stogsdell paid to Dittemore, as such treasurer, in paper of the Citizens Bank of Gosport, an illegal and void currency. The taxes paid by Stogsdell for other persons were paid by virtue of an arrangement between him and them, for which he afterwards received from them good money. At the annual settlement by the treasurer, in June, 1858, the sums thus received from Stogsdell were charged against said treasurer. Dittemore claims that Stogsdell is indebted to him in the amount of the taxes thus paid by the latter in the currency mentioned, and assigned the account thereof to the plaintiff, who brought this suit to recover the same. On the facts above stated, the Court found for the defendant, and this finding seems to us to have been correct. It may be admitted that the payment of the taxes in the currency mentioned was void and of no effect whatever, and that the treasurer might, notwithstanding such payment, have proceeded to collect them as in other cases. Still it is not perceived that, independently of any statute, quired any personal right of action against Stogsdell. It seems to us that the payment was a nullity; that the taxes yet remained due, and that no implied assumpsit arose from the transaction against Stogsdell in favor of Dittemore personally. But there is a statute which enacts that, "if any county treasurer, on making settlement with the county auditor, shall stand charged with any tax remaining unpaid, and shall not receive a credit therefor in such settlement, such treasurer may collect such tax for his own use at any time within one year after such settlement, either by distress and sale, as hereinbefore provided, or by action of debt in his own name, before any justice of the peace, or court having jurisdiction." 1 R. S. 1852, p. 145, sec. 193. The suit in this case, however, was not brought within the time limited, and must therefore fail. It may be observed that there was an agree Dittemore ac Hornaday v. Campbell. ment that all matters of defense might be relied upon without pleading. Per Curiam.-The judgment is affirmed, with costs. John H. Martin, for the appellees. HORNADAY V. CAMPBELL. PLEADING PRACTICE.-The decision herein relates to the sufficiency of certain pleadings, and can not be briefly stated. APPEAL from the Hendricks Common Pleas. WORDEN, J.-This was an action by Campbell against Hornaday to recover compensation for services performed by the plaintiff for the defendant as an attorney at law. Issue, trial, verdict and judgment for the plaintiff. There were two paragraphs in the complaint. On the second no question arises and it need not be noticed. The first alleges in substance that there was an action pending in the Circuit Court of said county, by the State upon the relation of Kennedy, against the Danville and White Lick Plank Road Company; that the defendant agreed with the plaintiff, who was an attorney at law, that if he, the plaintiff, would assist said Kennedy in the prosecution of said action, the defendant would pay him or secure him the payment of a reasonable fee, therefore, &c.; that the plaintiff, in pursuance of the contract, did assist in the prosecution of said cause, and that he attended and engaged in the trial thereof; that before the final determination of said cause the plank road company discontinued their toll gate, and have, from that Snyder et al. v. The State ex rel. &c. time to the present, discontinued the collection of toll on the road, and that Hornaday abandoned the prosecution of the said action, the object thereof having been accomplished, and that the defendant has not paid, &c. The defendant moved to strike out a certain part of the complaint, which motion was overruled, and exception taken. In looking through the part of the complaint which the defendant desired stricken out, we find that it includes the averment of performance on the part of the plaintiff. Had the motion prevailed there would not have been enough left to sustain the action. The motion was properly overruled. The defendant then demurred, but the demurrer was overruled, and correctly. The paragraph is clearly sufficient. On the trial the defendant objected to certain evidence on the ground of irrelevancy. Some of the evidence thus objected to might, perhaps, have been properly excluded, but if so we do not see how its admission has prejudiced the defendant. The evidence justifies the verdict. There was some conflict in some respects, but take it all together the motion for a new trial was properly overruled. Per Curiam.-The judgment below is affirmed, with costs and 5 per cent. damages. C. C. Nave, for the appellant. L. M. Campbell and P. S. Kennedy, for the appellee. SNYDER et al. v. THE STATE ex rel., &c. ACTION AGAINST COUNTY TREASURER.-An action against an ex-treasurer of a county and his sureties, on, his official bond, should be prosecuted in the name of the State, on the relation of the auditor Snyder et al. v. The State ex rel. &c. of the county, and not on the relation of the acting treasurer, and, if such action be instituted on the relation of the latter officer, it will be irregular, and can not be deemed to be amended in this Court. APPEAL from the Bartholomew Circuit Court. WORDEN, J.-This was an action by the State upon the relation of Curtin, treasurer of the county, against Snyder and his sureties, upon his official bond as former treasurer. Judgment for the plaintiff for 50 dollars. We are met at the threshhold of the case with the objection, that an action will not lie in such case upon the relation of the treasurer, and this objection seems to be well taken. Whatever may have been the provisions of former statutes on the subject, no statute now in force has been cited, and we are aware of none, which authorizes the treasurer to be the relator in such cases. By section 128, 1 G. & H. p. 102, it is provided that the county auditor, on being instructed to that effect by the Auditor of State, or the Board of County Commissioners, shall cause suit to be instituted against the treasurer and his sureties in certain cases. By section 132, it is provided, that, in suits against the treasurer and his sureties, the auditor shall be a competent witness. This provision would have been entirely superfluous, had it not been contemplated that the auditor should be a party to the suit as relator. The general system of checks and balances contemplated by the revenue laws, and intended to enable the auditor to properly charge the treasurer with what funds he rcceives, also strongly favors the construction, that suits upon an ex-treasurer's bond should be brought upon the relation of the auditor, and not of the incoming treasurer. But it is claimed, that if the action was wrongly brought in this respect, it could have been amended below, and will be deemed amended here. But, in our opinion, such a radical amendment as a total change of one of the parties to the action, or, Jackson v. The State. which is in substance the same thing, a total change of the person suing as relator can not be deemed to be made here. Per Curiam.-The judgment below is reversed, with costs. Francis T. Hord and N. T. Hauser, for the appellants. Stansifer & Herod, for the appellee. JACKSON V. THE STATE. CRIMINAL LAW AND PRACTICE.-A criminal prosecution upon indictment will be held erroneous where the record fails to show that the indictment was duly returned by the grand jury in open Court. APPEAL from the Grant Circuit Court. Per Curiam.-This was a prosecution under the statute prohibiting the sale, without license, of intoxicating liquors, by a less quantity than a quart. The indictment appears to have been filed in the clerk's office of said Court on the 15th of February, 1862, but it is not shown to have been "returned by the grand jury into open Court." It is true the transcript before us contains a statement to the effect that the Court, at the next term after the indictment was filed, directed an entry to be made of its return, but no such entry was made. And as the record fails to show such return by the grand jury, the proceedings must be held erroneous. The judgment is reversed. H. D. Thompson, N. W. Gordon and W. R, Pierce, for the appellant. Oscar B. Hord, Attorney General, for the State. |