Hosier v. Eliason

Perkins, J. Madren drew a bill of exchange, addressed to Jesse Hosier, New York, requesting him to pay to [524] the order of Joshua Eliason, at the office of Winslow, Lanier & Co., New York, 4,467 dollars and 14 cents, value received, and charge the same to account of drawer. Hosier accepted the bill. Eliason indorsed it to one Morton, who indorsed it to the Richmond bank. The bill was protested for non-payment. Eliason paid and took up the bill, and sued Madren and Hosier, the drawer and acceptor. Madren made default. Hosier defended. He alleged in his answer— 1. A general denial. 2. That the bank charged 12 per cent, for discounting the bill. 3. That the plaintiff, for a consideration, and without the knowledge of the defendant, released Madren. A demurrer was sustained to the second and third paragraphs. The second paragraph was bad. It was no concern of Hosier's what rate of discount the bank charged Morton for discounting the bill. Canwell v. Pumphrey, 9 Ind. R. 135. The third paragraph was bad for uncertainty. If the release was in writing, it should have been filed, or a copy of it. If it was not, the terms and consideration of it should have been set out, that the Court might have deteftnined upon its validity. See Page v. Ford, 12 Ind. R. p. 46, where it is held, that an answer averring the acceptance of an article sold should set out the manner of acceptance—the acts relied on as constituting it. See, as to a release, 1 Ind. R. 313; 4 id. 465; 9 id. 371; Ind. Dig. p. 713. Probably this third paragraph, if well pleaded, would have constituted no bar. The defendant amended this paragraph. See, as to effect of this step, Ind. Dig. p. 650, § 182. The plaintiff again'demurred; but before any action was taken upon the demurrer, he replied over in denial. The cause was then submitted to the Court, by agreement of parties, and judgment was rendered for the plaintiff. W. A. Bickle and G. W. Julian, for the appellants. O. P. Morton, M. F. Kibby, J. S. Newmm, J. P. Siddall, and J. B. Julian, for the appellee. It is contended that error appears in the record, because there was no decision on the demurrer. There are two answers to this objection: 1. A party cannot demur and answer to the merits at the same time to the same paragraph. Hence, where this is attempted, either the demurrer or answer, must give way. The rule is, in such cases, that the answer overrules the demurrer, and puts it out of the case. Ind. Dig. p. 640. But, 2. If both could stand, it would be presumed that the issues on both were referred to the Court together, and decided in the general finding. This has been often decided. See the cases cited in Ind. Dig. p. 653, § 208. At the institution of the suit, a writ of attachment was duly issued. The defendant did not answer to the attachment, and the costs of it were taxed against the defendant with the costs of the cause. This was right. Per Curiam. The judgment is affirmed with 3 per cent, damages and costs.