Philips v. Wills

WILLS sued Philips before a justice of the peace on the following declaration; “ Elizabeth Wills complains of Washington W. Philips, for that on or about the-day of-, 1845, the said Elizabeth Wills (plaintiff) delivered the said Philips (defendant) three promissory notes, belonging to her, for col [326] lection, which were to be collected by the said Philips, and the money so collected paid over to the said Elizabeth Wills, which the said Philips collected and retained, and refused to pay, and still refuses to pay the said Elizabeth Wills (plaintiff) to her damage of 47 dollars and 60 cents. Principal on said notes, 35 dollars. Interest on same, 12 dollars and 60 cents. Total amount 47 dollars and 60 cents.” A. A. Hammond, for the appellant. H. Brown and A. G. Porter, for the appellee. The defendant appeared before the justice, and, without objecting to the declaration, went to trial upon the merits, and had judgment against him. Pie appealed to the Circuit Court, and there moved that the suit be dismissed for want of a sufficient cause of action, pointing out, however, no particular objection to that on file. The Court overruled the motion. The cause was thereupon tried upon its merits, and judgment rendered for the plaintiff The evidence is not upon the record, and the only matter complained of is the refusal of the Court to dismiss. The objection to the cause of action relied on in this Court is, that it contains no averment of a demand of the money alleged to be in the defendant’s hands, before bringing the suit. We understand the statements in the plaintiff’s declaration to imply that a demand was made before suit; but, had the suit been commenced in the Circuit Court, the declaration would have been bad, at least, on special demurrer, for not alleging the demand more formally and with more certainty. Armstrong v. Smith, 3 Blackf. 251. —Judah v. Dyott, id. 324. Plaving, however, been commenced before a justice of the peace, and no objection having been made on account of the alleged defect below, the Court did right in overruling the motion to dismiss. Olds v. The State, 6 Blackf. 91. — Davis v. Davis, id. 395. We presume a special demand was proved on the trial. The judgment is affirmed with costs.