11 Ind. 199 (Ind. 1858), , Cooke v. Williamson

Citation:11 Ind. 199
Opinion Judge:Perkins, J.
Party Name:Cooke and Others v. Williamson
Attorney:S. Judah, for appellants. D. McDonald and A. G. Porter, for appellee.
Case Date:December 03, 1858
Court:Supreme Court of Indiana
 
FREE EXCERPT

Page 199

11 Ind. 199 (Ind. 1858)

Cooke and Others

v.

Williamson

Supreme Court of Indiana

December 3, 1858

From the Knox Court of Common Pleas.

The judgment is affirmed, with 1 per cent. damages and costs.

S. Judah, for appellants.

D. McDonald and A. G. Porter, for appellee.

OPINION

Page 200

Perkins, J.

Suit upon a replevin-bond. The bond was executed on the 25th day of January, 1855, under the following circumstances: Williamson, the plaintiff, was in possession of the treasurer's office of Knox county, under claim of right. Cooke claimed to be entitled to the office in place of Williamson, and to try his right, commenced an action of replevin against Williamson, to recover the books and papers of the office. The books, &c., were taken by the sheriff, by virtue of the writ of replevin, and delivered to Cooke. On procuring the writ of replevin, Cooke gave a bond, with Judah and Denny as sureties, conditioned for the prosecution of his suit, &c. He failed in the suit. Williamson now sues Cooke and his sureties on the replevin-bond, the same, as we have stated, being dated January 25, 1855. The complaint, by way of introduction, recites that Cooke occupied the office and collected taxes before he brought the replevin suit.

All the defendants answered by a general denial of each and every allegation in the complaint.

Judah and Denny answered in a second paragraph, "that all the money collected by said Cooke, which the plaintiff is entitled to percentage on, was collected before the filing of the bond mentioned in plaintiff's complaint."

To the answer, there was no reply. We think none was necessary to complete the issue. The suit being upon the bond, went only for rights that accrued under the bond. The introductory matter was not issuable. The paragraph in the answer which alleged that all Cooke's liability accrued before the bond was executed, was an argumentative denial that any liability accrued under the bond sued on, and, hence, amounted to nothing more than the general denial. The bond did not, it may remarked, purport to cover antecedent liability.

The next entry of record is, that the defendants were called and came not, but made default, and thereupon the Court referred the cause to a commissioner to take an account. No judgment upon default was entered.

The next entry states that the plaintiff...

To continue reading

FREE SIGN UP