Green and Others v. Boody and Others. would not have been recovered in a suit on the bill against the indorsers had they not been discharged by the negligence of the express company. Says Edwards on Bills, page 405: "Where a bank with whom a note is deposited for collection fails to take the proper steps to charge the drawer or indorsers, in consequence of which the holder is unable to collect the amount of the bill, the measure of damages is the face of the bill with interest." See, also, Sedgwick on Dam. 353, citing Walker v. Smith, 4 Dall. 389. Per Curiam.-The judgment below is affirmed, with 1 per cent. damages and costs. Newcomb & Tarkington, for the appellant. GREEN and Others v. BooDY and Others. PLEADING RAILROADS.-In an action for forcibly entering upon land, and digging the soil, excavating pits, making embankments, &c., an answer that the defendants entered as the servants of a specified railroad company, which had legally appropriated the injured property as the line of her road, &c., would justify the entry and bar the suit. APPEAL from the Cass Circuit Court. PERKINS, J.-Green and others commenced an action to recover damages occasioned by an alleged trespass committed by Boody and others upon the land of the plaintiffs, on which were situate mills, machinery, &c. The plaintiffs alleged that they were, and for many years had been, the owners, and in possession of the land, mills, &c.; that while they were thus owners and possessors, the defendants, unlawfully and forcibly, Green and Others v. Boody and Others. entered upon said land, mills, &c., to-wit: on the 1st day of April, 1858, and on divers other days, &c., before the commencement of this suit, "and dug up the soil, excavated pitts, raised embankments, set in abutments of stone and erected piers, cut down the banks, broke up and destroyed large quantities of lumber, and carried away the same, and other wrongs then and there did, whereby the said mill seat and buildings, and machinery thereon, were injured and destroyed, &c., to the damage, &c." The defendants answered that they entered as the servants of the Toledo and Wabash Valley Railroad Campany, while acting under its charter, and which company had appropri ated said injured property as the line of her road, &c. A demurrer to the answer was overruled, and the defendants had final judgment in their favor. This suit was for the illegal entry upon the lands; the destruction of the mill, the lumber in it, &c., and the digging up of the ground, &c., are but matters of aggravation. An answer, then, which justified the entry, barred the suit, because, says Mr. Stephens, in his work on pleading, pp. 217, 243, no issue should be taken on, nor answer made to matters of aggravation. See, also, 1 Chit. Pl. 397; 4 Blackf. 179; 3 Ind. 404; Gould Pl., sec. 10, chap. 3. The company or hands may, perhaps, be liable to a suit brought for the value of any personal property injured or destroyed which was not iucluded in the property taken by the company for the construction of the road. The answer, above stated, is shown to be a good bar to this action, as instituted, by the case of The President, &c. v. Wright, 5 Ind. 252, and cases there cited; and The Indiana Central Railway Co. v. Oakes et al., 20 id. 9. Per Curiam.-The judgment is affirmed, with costs. Chapin v. The Board of Commissioners of Steuben County. CHAPIN V. THE BOARD OF COMMISSIONERS OF STEUBEN COUNTY. CONTRACT-PAYMENT-PLEADING. A recovered a judgment against a county, and a few days thereafter the county auditor issued county orders to pay the judgment, and delivered them to A, who received them in payment and satisfaction of the judgment. The judgment was afterwards reviewed and reversed, and a new trial ordered. A then pleaded the facts aforesaid as equivalent to a voluntary payment and discharge of the judgment by the county, and as a bar to a re-trial. Held, that the auditor had no power to contract that said orders should be received in payment and satisfaction of said judgment, and that their delivery as aforesaid did not amount to payment, and constituted no bar to the re-trial of the cause. PRACTICE. When a cause is appealed to this Court for error in sustaining a demurrer to the complaint, and the error is confessed here, and the judgment reversed and the cause remanded, and the demurrer is then overruled by the Court below, it is not error for the latter Court to refuse to permit another demurrer to be filed to the same complaint. APPEAL from the Steuben Circuit Court. HANNA, J.-Chapin filed before the appellees a claim for services as Clerk of the Circuit and Common Pleas Courts, and asked an allowance out of the county treasury. The claim consisted of a per centage for receiving and paying out money on judgments, legacies, &c., and also for indexing books of record. The appellees refused to make any allowance; Chapin appealed to the Circuit Court where there was judgment, for the amount of the claim, by default. Three days after the rendition of the judgment the county auditor issued to Chapin orders on the county treasurer for a sum equal to the amount of the judgment. Within a year afterwards the present appellee instituted a Chapin v. The Board of Commissioners of Steuben County. proceeding to review said judgment on the grounds that the complaint did not state a cause of action; that it showed the said appellee was not liable to pay the claim set up and upon which judgment was rendered; that said judgment was for more than by the complaint appeared to be due; that the said Court had no jurisdiction of the subject matter, and could render no judgment upon it. To this complaint a demurrer was sustained, the case brought to this Court, and said ruling assigned for error. The error was confessed, the judgment reversed, and the cause sent back to the Circuit Court, where the demurrer was overruled. Chapin then sought to file another demurrer to the same complaint, which the Court refused to permit. An answer was then filed containing, first, a general denial; second, setting up the filing before and refusal by the appellees of said claim, the appeal, judgment by default, and reception of county orders, and averring that appellees had ample time to employ counsel and prepare for trial, but failed to do so; and that the auditor delivered the orders by him drawn upon the county treasurer in payment and satisfaction of said judgment, and that he in good faith so received them; that, afterwards, said auditor reported to said appellees the payments to county officers, included in which were said orders, and they received, ratified and confirmed said report, &c. A demurrer was sustained to this second paragraph, and, the said Chapin failing to answer further, the judgment was reviewed and reversed; the case afterwards tried, and a finding and judgment for the defendants, the appellees. A question of practice was raised on the return of the case from this Court, after the confession of errors. After the demurrer to the complaint for a review had been overruled, as directed by this Court, the said Chapin sought to file another demurrer to the same complaint, somewhat differently worded. We think the Court ruled correctly in refusing to Chapin v. The Board of Commissioners of Steuben County. grant said motion; for, whether in any instance, a Court has the discretionary power to permit a second issue of law to be made on the same pleading or not, a case is certainly not shown where such discretion, if it exists, has been abused. The main question arising in the case is presented by the ruling on the demurrer to the second paragraph of the answer; and it is argued that the act of the auditor in issuing and of Chapin in receiving the county orders, as alleged, was a payment of the judgment and a discharge thereof, voluntarily made by said appellees, and that after a judgment is discharged it should not be reviewed or reversed. Two grounds are taken by the appellee: First, that the county auditor had no legal power to issue said orders, and they were therefore void; second, if he had, that issuing them and passing them over to the said Chapin did not operate as a payment of said judgment. It appears to us that the latter proposition is so clearly right that it is useless to inquire as to the former. If a judgment debtor should draw a check on a bank in favor of a judgment creditor would it per se operate as a satisfaction of the judgment? or if, in like manner, he should draw an order on a third person, it would not have any greater effect; or, if he should execute his promissory note, that act merely would not amount to a payment. It has been held by this Court that a county order is, in effect, the promissory note of the county. We do not regard the answer as being any broader than the propositions here stated, for the reason that the auditor had no legal power to contract with the said Chapin, as averred, that the orders should be delivered in satisfaction and payment, &c. Per Curiam.-The judgment is affirmed. D. E. Palmer and Case & Morris, for the appellant. |