V. Fox. not as such binding, and can not be enforced without rati- Nov. Term, fication, even if given for necessaries. For whether the ar1854. ticles furnished were, in the particular case, necessaries, is HENDERSON a question of law, to be determined by the Court. And if deemed necessaries, then their quantity, quality, and reasonable price, is for the consideration of the jury. But if, on the contrary, the express contracts of infants, even when necessaries, so called, were the consideration, could be enforced, these important questions might be improvidently settled by the infant himself, beyond the supervision of the Courts. Hence, text-writers, in enumerating persons incompetent to contract, meaning incompetent to become parties to an express contract, specify infants, married women, alien enemies, and insane persons. Story, supra, s. 75.-Chitty on Contracts 141.-1 Comyn on Contracts 148. The exceptions under these several heads, for instance, the implied promise of an infant to pay for necessaries, have no application to the present case. The infancy of Webb, the maker, was, therefore, a sufficient excuse why the assignee might proceed in the first instance against the assignor, without suing the maker. Even if it were admitted that the infant was liable on the note, provided it were given for necessaries, the character of the consideration would be matter of defence. Nor would the negative allegation of the declaration, that it was not given for necessaries, change the rule. For that allegation is not, in the present case, descriptive, or of such a nature which though unnecessarily or improvidently made by the pleader, he would be bound to prove. The making and indorsement of the note, and the infancy of the maker, were all that was essential to the plaintiff's right of recovery. The residue was surplusage. 1 Chitty Pl. 330. The question of necessaries, if available at all, was matter of defence. So, also, if between the making and the maturity of the note, Webb had arrived at full age and ratified his express contract. Such matters coming properly from the other side, impose upon the defendant the burden of proof; both because they are not essential Nov. Term, to the plaintiff's recovery, and that the means of proof are presumed to be more in the power of the party holding the affirmative, and in whose favor they tend to operate. 1854. FISHER V. JOHNSON. We do not deem it necessary to discriminate very nicely what acts of an infant are void, and what only voidable. Nor is it worth while to inquire how far the negotiable character of promissory notes, under our statute, might affect the question. It seems to us sufficient that Webb was an infant. As such, he was clearly not liable within the rule laid down in 2 Blackf., supra. Per Curiam.-The judgment is affirmed with costs. FISHER and Another v. JOHNSON and Wife. A vendor's licn for purchase-money is paramount to a claim of the vendee's The lien of the vendor for purchase-money, in this state, is assignable. ERROR to the Parke Circuit Court. PERKINS, J.-William H. Johnson and Margaret, his wife, (late Margaret Underwood), filed their petition in the Parke Circuit Court, setting forth that said Margaret was late the wife of John Underwood, deceased; that said John, during the coverture, was the owner of certain real estate, describing it, and that it was conveyed to one Thomas Melvin, now deceased, whose heirs are in possession, and from whom dower has been demanded. The petition avers that said Margaret did not join in the deed to said Melvin. The defendants pleaded, that "the said Thomas Melvin paid the original purchase-money to one Goldsmith Coffin, from whom the said John Underwood purchased the said lands and tenements in said petition mentioned and described, and said Underwood conveyed the same to said Melvin and his heirs in fee simple, in consideration of the said purchase-money so advanced to said Coffin as aforesaid; and that the said purchase-money was not paid by the said John Underwood, or any part thereof; and that the said John Underwood never had, at any time during his life, any manner of title whatever to the said lands and tenements, except that derived from the said Coffin." A general demurrer was sustained to this plea, and full dower given to the petitioner. According to this plea, John Underwood, the husband of the petitioner, Margaret, purchased the land in question of Goldsmith Coffin, but paid no part of the purchase-money, and subsequently released his title to Thomas Melvin, on his (Melvin's) paying the purchase-money to Coffin. The lien of the vendor for the purchase-money of land sold is paramount to the claim of the widow of the purchaser for dower. Had this relinquishment of title, then, been made in good faith by Underwood to Coffin, the widow, Margaret, would have had no claim to dower, at all events, without redeeming the land by advancing the stipulated purchase-money and interest. Whether she could have been permitted so to redeem, is a question not now presented for consideration. The lien of the vendor for his purchase-money, in this state, is assignable, and passes to his assignee. Brumfield et al. v. Palmer, 7 Blackf. 227. In this case, then, Melvin having paid to Coffin the purchase-money due from Underwood, with the consent of the latter, should be regarded as subrogated to Coffin's rights; and as, had Underwood released fairly to Coffin, the widow could not have sustained a claim to dower, so we think his release, in like manner, to Melvin, who stands in Coffin's shoes, must operate in the same manner upon the widow's claim to dower. Perhaps, if the petitioners can show that the land was worth more, when deeded to Melvin, than the purchasemoney paid, the widow may be endowed of the excess. Nov. Term, 1854. FISHER V. JOHNSON. Nov. Term, But as to this, and whether the petitioners, by now tendering the purchase-money and interest, can secure any PRICHARD rights, we need not here inquire. See Whitehead v. CumCAMPBELL mins, 2 Ind. R. 58. V. Per Curiam.-The judgment is reversed with costs. Cause remanded, &c. J. Morrison and S. Major, for the plaintiffs. J. P. Usher, S. F. Maxwell, T. H. Nelson, and J. W. Gordon, for the defendants. PRICHARD and Others v. CAMPBELL. Trespass, before a justice of the peace, against several defendants, part of whom only were served with process. Judgment was rendered against the defendants summoned, and they took an appeal to the Circuit Court. In the Circuit Court judgment was rendered against the defendants who had been summoned, and also against a defendant who had not been summoned nor appeared to the action. Held, that as to him the judgment was a nullity. In trespass against several defendants, if the plaintiff proves a joint trespass against part of the defendants only, he can not afterwards give evidence of another trespass by all, even against such part alone. In trespass quare clausum fregit, it must be proved that the trespass was committed in the county where the premises are situate. APPEAL from the Madison Circuit Court. DAVISON, J.-This was an action of trespass commenced by Campbell, before a justice of the peace, against Rhoda Prichard, Ira Sawyer, Jesse Prichard, William Davis, Bailey Davis, William George, and John Stephens. The complaint is, that the defendants, on the 25th, 26th, 27th and 28th of January, 1852, at Madison county, entered upon the plaintiff's land, and with force, &c., took, carried away and destroyed the corn standing in two fields, viz., 350 bushels, worth 50 dollars. A summons was issued against the defendants, and served on all of them except John Stephens, as to whom it was returned not found. Those served with process appeared and pleaded jointly not guilty. Against them Nov. Term, 1854. alone the justice gave judgment, and they appealed. V. CAMPBELL. In the Circuit Court, a jury was waived. The Court PRICHARD found for the plaintiff 42 dollars. A new trial was refused, and judgment given against Rhoda Prichard, Ira Sawyer, William Davis, Bailey Davis, Jesse Prichard, and John Stephens. The judgment, so far as it relates to Stephens, is a nullity. He never appeared to the action. As to him there was no adjudication before the justice, nor was he in any way connected with the appeal. Therefore he was not within the jurisdiction of the Circuit Court. Upon the trial, the plaintiff having proved that Sawyer and Prichard, two of the defendants, on a certain day took and carried away one load of corn, proposed to prove that on the next day, and for two days thereafter continuously, the defendants jointly committed other and additional trespasses in the same close. Evidence to that effect was, over the defendant's objection, admitted. The rule "in actions for a joint trespass against several defendants, is for the jury to assess damages against all the defendants jointly, according to the amount which, in their judgment, the most culpable of the defendants ought to pay. And if several damages are assessed, the plaintiff may elect which sum he pleases, and enter judgment de melioribus damnis against them all." From this view, it seems that the evidence should have been excluded; because its tendency was to operate unjustly toward those defendants who did not participate in the first trespass. Mr. Greenleaf illustrates the rule applicable to the point under consideration thus: "Where the action is against three, and the plaintiff proves a joint trespass by two only, he will not be allowed to give evidence of another trespass by all three, even against those two alone." 2 Greenl. Ev., s. 624.-2 Stark. Ev., p. 1105. Another objection is raised to these proceedings. No evidence was adduced on the trial tending to prove that the close described in the complaint was within the county of Madison. In that respect the proof was defective. |