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Eversole vs. Moore.

swearing them; and that the word sworn, would fill the blank in the order, and show that, by the inadvertence and mistake of the clerk, it was omitted.

The indictment was set aside 28th of May, 1867, within a few days of one year after it was returned in court, and not in May, 1866, as was suggested by counsel.

It might be added, that it is not certain that the alleged defect in the indictment is a ground for setting the same aside; but in the view taken of the case by us, that question need not be decided.

For the reasons herein stated the judgment is reversed, and the cause remanded, with directions to overrule the motion to set aside the indictment, and for further proceedings consistent herewith.

CASE 17-PETITION ORDINARY-DECEMBER 12.

Eversole vs. Moore.

APPEAL FROM PERRY CIRCUIT COURT.

1. "That, in 1862, before the assignment of the notes, the obligee, as a private citizen, on his own responsibility, and without any order or authority whatever, went to the intestate's residence, and, by force, took from him, and converted to his own use, horses, mules, and hogs, of a value greatly exceeding the amount claimed in the action," is a good plea of set-off, as the administratrix had a right to waive the trespass and right of action, ex delicto, and to maintain an action, ex contractu, for the value of the property converted on an implied promise to pay the value of the property.

2. Indebitatus assumpsit might be maintained for the value of property tortiously taken and converted, and that which might be recovered in such an action may be plead as a set-off.

VOL. III-4

JOHN M. HARLAN and

H. C. LILLY,

Eversole vs. Moore.

CITED

For Appellant,

MSS. Opinion, Brannaman vs. Palmer, note b, Myers'

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2 Dana, 269; Hanna & Co. vs. Pleasants, &c.

JUDGE ROBERTSON DELIVERED THE OPINION OF THE COURT:

To an action against the appellant, as administratrix of her deceased husband, to recover the amount of two promissory notes for money, executed by the intestate to Allen Moore, who assigned them to the appellee, she resisted a judgment by pleading a set-off of a specific sum equal to that sued for, which she claimed on her allegation, that, in 1862, before the assignment of the notes, the obligee, as a private citizen, on his own responsibility, and without any order or authority whatever, went to the intestate's residence, and, by force, took from him, and converted to his own use, horses, mules, and hogs, of a value greatly exceeding the amount claimed in the action.

Eversole vs. Moore.

A demurrer to the answer being sustained, and she failing to answer further, the circuit court pronounced judgment for the amount of both notes. And, on this appeal from that judgment, the sole question for our consideration is, whether the demurrer was properly sustained?

The answer, by alleging a forcible taking from the intestate's possession, imports that the property so taken was his, as his possession alone prima facie implied.

And although tort cannot be set-off against contract, yet the trespass in this case may be waived, and, instead of suing for indeterminate damages arising ex delicto, an action, ex contractu, might be maintained for the value of the property converted on an implied promise to pay the value of it; consequently, indebitatis assumpsit might be maintained for that value. And that which the appellant might have recovered in such an action, she may plead as a set-off in this case, as the demands of both parties arise from contract, express or implied, to pay a certain sum in money (the value of the property, not damages), which might be recovered by each in the character in which they respectively stand and plead in this action. This conclusion does not conflict in principle with any former decision of this court.

And, though the answer shows a tortious conversion, yet its election to demand only the value of the property waived the tort and relied on implied contract, which might be enforced by indebitatus assumpsit.

We are therefore of the opinion that the answer was substantially good, and that the circuit court erred in sustaining the demurrer to it.

Wherefore, the judgment is reversed, and the cause. remanded for further proceedings.

Napier vs. Green.

CASE 18-PETITION ORDINARY-DECEMBER 13.

Napier vs. Green.

APPEAL FROM HARLAN CIRCUIT COURT.

Although the enlistment as a substitute exonerated the drafted man from liability to serve under the draft, yet the latter had a right to stipu late for faithful service; and as the substitute so stipulated, and deserted after being mustered into the service, he was not entitled to recover an unpaid balance of the amount which was promised him for his becoming a substitute.

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JUDGE ROBERTSON DELIVERED THE OPINION OF THE COURT:

The appellant sued the appellee in the Harlan quarterly court for one hundred dollars, claimed as an unpaid balance of three hundred dollars, alleged to have been promised for his becoming the substitute of the appellee, who was thereby exonerated as a soldier drafted into the Federal army.

The appellee's answer, admitting the substitution, denied that the contract bound him to pay any part of the consideration if the appellant should desert or fail to serve without an honorable discharge, and charging that the appellant deserted on the night after his enrollment as substitute, and never served a day in the army. The appellee not only resisted any recovery in this action, but pleaded as a counter-claim the amount which had been advanced, and prayed judgment therefor.

Napier vs. Green.

On these grounds, without any response to the counter-claim or extraneous proof of the contract, the quarterly court rendered judgment against the appellee for eighty-four dollars and fifty cents.

On an appeal to the circuit court, that judgment was set aside, and a judgment was rendered against the appellee for one cent and costs, which, by this appeal to this court, the appellant seeks to reverse.

However anomalous or unauthorized the judgment of the circuit court may be, it is not deemed prejudicial to the appellant; for, although his enrollment as substitute exonerated the appellee from liability to serve under the draft, yet, to avoid risk and contingent trouble and possible arrest, the appellee had a right to stipulate for faithful service by his substitute, and, according to the pleadings, he did so stipulate as a condition to the appellant's title to the three hundred dollars. Consequently, the appellant has failed to show in this case that he is entitled to any judgment against the appellee, who, nevertheless, does not appeal.

Wherefore, on this appeal the judgment is affirmed.

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