Thalman v. Barbour

Davison, J. Barbour, Shaw and Buell sued Thalmcm [179] and Evans in assumpsit upon a note for the payment of 2,000 dollars. The general issue and four special pleas were pleaded. The second, third and fourth led to issues of fact. To the fifth a demurrer was sustained. The cause was submitted to the Court for trial upon the issues of fact. The Court found for the plaintiffs, and judgment was given on the finding of the Court. The fifth plea alleges that after the execution of the note sued on, the defendants assigned to the plaintiffs a title-bond for a certain lot in the city of Indimiapolis, valued at 1,800 dollars; and that, in consideration therefor, the plaintiffs agreed that no suit should be brought on said note until after the 12th of April, 1853, &c. An agreement made by the holder of a promissory note not to sue on the note for a limited time, is no bar to a suit brought before the expiration of the given time. 5 Blackf. 125.—6 id. 282.—1 Ind. R. 382. The demurrer to the fifth plea was correctly sustained. But if the ruling of the Court, in that respect, was erroneous, that error would not be sufficient to reverse the judgment. Suppose the defence set up by the fifth plea to have been valid, it would have been admissible under the general issue. 8 Blackf. 41. After the issues in the cause were made, the defendants filed their affidavit, alleging that Lucius Barbour, one of the plaintiffs, was, at the time of the commencement of the suit, a non-resident; and thereupon moved for a rule against the plaintiffs to give security for costs. This motion was overruled. The statute provides that “ plaintiffs who are not residents of this state,” shall give security for costs. R. S. 1843, p. 675. The reason and spirit of the act do not apply to the case before us. The object of the enactment is, that a defendant shall not be put to answer an action, until his costs are secured by some person residing within the state. Two of the plaintiffs in this case are residents, and liable for all the costs adjudged to the defendants. We think the motion was rightly overruled. R. L. Walpole, for the plaintiffs. D. McDonald, W A. McKenzie and W. Henderson, for the defendants. Per Curiam.—The judgment is affirmed, with 2 per cent, damages and costs.