Catlett v. The Trustees of the M. E. Church of Sweetser Station. trial of a case which affects the rights of others, who are bound by the law, but not by his belief. We express no opinion upon the sufficiency of the evidence. The judgment is reversed, at the costs of the appellee, and the cause remanded with instructions to sustain the motion for a new trial, and for further proceedings according to this opinion. CATLETT V. THE TRUSTEES OF THE M. E. CHURCH OF CONTRACT.-Church Subscription, made on Sunday. — Ratification.— Evidence. -A subscription to a church, made on Sunday, is void; and a mere subsequent acknowledgment of the making of such subscription, accompanied by a declaration of an intention to pay the same, but supported by no consideration, is not a ratification binding the subscriber. SAME.-Verbal Promise to Pay Debt of Another.-Statute of Frauds.-A verbal promise to pay the subscription of another is void by the statute of frauds. From the Grant Circuit Court. R. W. Bailey and A. Diltz, for appellant. Van Devanter and J. W. Lacey, for appellees. BIDDLE, J.-Suit by the appellees against the appellant, on a written subscription to a church, payable to the appellees, for fifty dollars, and on the promise of the appellant to pay the subscription of J. Kindlesbarger of one dollar. The action was commenced before a justice of the peace, and came to the circuit court by appeal. In the circuit court the appellant moved to reject the Catlett v. The Trustees of the M. E. Church of Sweetser Station. amended complaint. His motion was overruled and excepted to. Trial by the court, finding and judgment for appellees. The case is presented here upon two questions, the alleged error in overruling the motion to reject the amended complaint, and the alleged insufficiency of the evidence to sustain the finding. The complaint is good. The practice in justices' courts does not require very skilful pleading; but the evidence is insufficient to maintain any action. It is admitted in the bill of exceptions, that the contract on the subscriptions was made on Sunday; but it is claimed that it was subsequently ratified by the appellant. There is evidence showing that the appellant admitted to third parties, that he had made the subscription, and some evidence tending to show that he thus admitted he would pay it, but none except the subscription itself that he ever promised the appellees that he would pay it. And, if he had made a direct promise to the appellees that he would pay the subscription, unless it was founded upon some consideration different from the subscription itself, the promise would be void. As a general rule, void contracts can not be ratified, but there seems to be an exception in favor of contracts void for having been made on Sunday, which may be ratified, upon a consideration that essentially makes a new contract; as when property, or something of value, has been obtained through the means of a contract made on Sunday, and a promise afterwards made to pay for it. In such case keeping the property and making the promise constitute the new contract or ratification. But, while the contract remains unexecuted, when nothing has passed between the parties, and they remain as they were at the time the contract was made, a mere promise to execute it will have no validity. 1 The State v. Thompson. The evidence in the case before us shows that the parties remain as they were at the time the contract was made; the admission, therefore, or the direct promise of the appellant to pay the subscription has no validity. The following authorities establish these principles: Banks v. Werts, 13 Ind. 203; Love v. Wells, 25 Ind. 503; Perkins v. Jones, 26 Ind. 499; Pate v. Wright, 30 Ind. 476; Heller v. Crawford, 37 Ind. 279; Davis v. Barger, 57 Ind. 54. The promise of appellant to pay the subscription of Kindlesbarger was not in writing; it is therefore within the statute of frauds, and can not be enforced. Crosby v. Jeroloman, 37 Ind. 264; Berkshire v. Young, 45 Ind. 461; Hayes v. Burkam, 51 Ind. 130; Miller v. Neihaus, 51 Ind. 401. The judgment' is reversed, at the costs of the appellees, and the cause remanded, with directions to sustain the motion for a new trial, and for further proceedings. THE STATE v. THOMPSON. SURETY OF THE PEACE.-Continuance.—Justice may Require Recognizance. The State v. Thompson. court, but, having departed without leave, his recognizance was forfeited: Held, in an action on the forfeited recognizance, that the recognizance was valid, and that his surety is liable. From the Harrison Circuit Court. W. T. Zenor, Prosecuting Attorney, and T. W. Woollen, Attorney General, for the State. Howk, C. J.-This was a suit by the State of Indiana, as plaintiff, against the appellee, as defendant, on a forfeited recognizance. The appellant's complaint contained two paragraphs, each of which counted on the same cause of action. To each of said paragraphs, the appellee demurred for the alleged insufficiency of the facts therein to constitute a cause of action, which demurrers were sustained by the court, and to these decisions the appellant excepted. The State declining to amend, judgment was rendered on the demurrers, for the appellee. In this court, the State has assigned, as errors, the decisions of the circuit court in sustaining the appellee's demurrers to each of the paragraphs of the complaint. It appears from the record of this cause, that, on the 21st day of February, 1878, one Louis Danriter filed his affidavit before a justice of the peace of Harrison county, alleging therein that he had reason to fear, and did fear, that Floyd Thompson, and two other persons named, would by violence injure him, said affiant, and that he made said affidavit to secure the protection of the law, and not from anger or malice. On this affidavit, a warrant was i uel, by virtue of which said Floyd Thompson was arrested and taken before said justice on the 22d day of February, 1878, when and where, upon the application of said Floyd Thompson, the venue of the cause was changed, and the same was set for trial before another justice of the peace of said county on the next day, February 23d, 1878. The State v. Thompson. On said last named day the parties appeared before the justice, and on the application of said Floyd Thompson the cause was continued until the 9th day of March, 1878, at 10 o clock A. M., and he was required to enter into a recognizance in the sum of two hundred dollars for his appearance before the justice on the day and hour specified. Thereupon the appellee, Hardin Thompson, executed the recognizance sued on in this action, in accordance with the requirement of said justice, and conditioned that the said Floyd Thompson should appear and be at the office of the justice on the 9th day of March, 1878, at 10 o'clock a. M., "to answer a charge for surety of the peace, upon the affidavit of Louis Danriter, the complaining witness, and abide the order of the court and not depart without leave, this cause being, by consent of parties, continued until that time." On the 9th day of March, 1878, at the hour named, the parties appeared in person and by counsel, when the justice, of his own motion, on account of sickness in his family, continued the case and directed the parties to return home until they were notified by him to appear for trial. Afterward, on the 28th day of March, 1878, at 10 o'clock A. M., in accordance with a notice from the justice, the parties appeared in person and by counsel, and a trial was had, which resulted in a finding by the justice, that said Louis Dauriter had cause to fear that said Floyd Thompson would injure his person by violence, and that the said Thompson should enter into bond in the sum of one hundred dollars, for his appearance in the court below, on the first day of its next term, and to keep the peace meanwhile. But the defendant Floyd Thompson, without leave of the justice, "departed without executing said bond;' and thereupon, on motion of the prosecuting attorney, the aforesaid recognizance of the appellee was declared by the justice to be forfeited. VOL. LXII.-24 |
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