Baker v. Flint. cation of the conduct of Stover as guardian, and hence we can not say that the court erred in overruling the demurrer to that paragraph. 2 Greenl. Evidence, sec. 66; Wallace v. Morgan, 23 Ind. 399. But, for the ruling of the court on the second paragraph of the answer, the judgment will have to be reversed. The judgment is reversed, with costs, and the cause remanded, with instructions to sustain the demurrer to the second paragraph of Heflin's answer, and for further proceedings. BAKER V. FLINT. TRESPASS.-Answer.-Husband and Wife.-Principal and Agent.-Attachment suit before Justice of the Peace of Foreign State.-Law of Foreign State. -Jurisdiction.-In an action for damages for the unlawful taking and conversion, in this State, of a chattel, the defendant answered, alleging, that, in the absence of the plaintiff, who had absconded, he had taken possession of the chattel in this State, at the request of the plaintiff's wife, and that, while it was in his possession, in another State, the same was attached and sold in an action instituted by the defendant and other attaching creditors, against the plaintiff, before a justice of the peace of such State, a copy of which proceedings was made part of the answer. Held, on demurrer, that the statute of the foreign State, authorizing suits in attachment, before a justice of the peace, should have been made part of the answer, that the authority of the wife to so deliver such chattel to him should have been averred, and that the answer is insufficient. From the Union Circuit Court. J. C. McIntosh and P. Smith, for appellant. J. Yaryan, J. L. Yaryan and J. W. Conaway, for appellee. PERKINS, J.-Complaint as follows: "Mahlon Flint complains of John Baker, and says, that, on the 18th day of January, 1876, at the county of Union Baker v. Flint. aforesaid, the defendant without cause, and unlawfully and wrongfully, took and converted to his own use the following property of the plaintiff, and has not returned the same; that is to say, one horse, of the value of one hundred and fifty dollars," to the plaintiff's damage in that amount, for which he prays judgment, etc. The defendant answered thus: "He admits that a horse of the plaintiff came into his possession on or about the day of January, 1876, but denies the wrongful taking of said horse as alleged in the complaint, and says, that, prior to the time said horse came into his possession as aforesaid, said plaintiff had absconded and abandoned his home in said county, and had left said horse in the possession and care of Mrs. Flint, his wife; and defendant says he took possession of said horse with the consent and at the request of said Mrs. Flint; that, while said horse was so in possession of defendant as aforesaid, at the county of Butler and State of Ohio, proceedings in attachment were instituted against the property of said plaintiff, before James Crawford, a justice of the peace in and for the county of Butler and State of Ohio, a court of competent jurisdiction to hear and determine such proceedings under the laws of the State of Ohio, and that such proceedings were had before said justice, that said horse was, under and by virtue of a writ or writs of attachment, taken from the possession of the defendant, to which proceedings the plaintiff appeared; and afterward, in compliance with and pursuant to the judgment of said justice, it [said horse] was sold to pay and discharge the debts of said plaintiff, due to his attaching creditors in said proceedings, copies of which are filed herewith and made part hereof." Then follow transcripts of the proceedings and judgments in attachment before Justice Crawford, in the suits of William H. Johnson v. Mahlon Flint; The Oxford Lum Baker v. Flint. ber Company v. Mahlon Flint; and John Baker v. Mahlon Flint. No copy of the statute of Ohio, relating to the jurisdiction of justices of the peace, was made a part of the an swer. The answer was demurred to for want of facts; the demurrer was sustained, and exceptions entered. The defendant elected to stand upon his demurrer, declined to answer further, and the plaintiff had judg ment. The error assigned is, that the court erred in sustaining the demurrer to the answer. It does not appear, from the answer, that Mr. Flint gave his wife any authority to transfer the possession of the horse in question to a third person; nor does it appear that the removal of the horse from the State was within the power, over the animal, attempted to be conferred by Mrs. Flint. As the horse was admitted in the answer to have been the plaintiff's at the time of taking by Baker, and no authority is shown for the removal of the same to Ohio, such removal appears to have been tortious, and is in no manner justified by the answer. The answer, setting up a sale on the Ohio judgments above mentioned, did not aver, that the judgments were duly given or made, as required by section 83 of the code of practice. Such being the case, it was necessary to the validity of the answer, that it should set out " facts showing the jurisdiction and authority of the justice to render such judgments." The Toledo, etc., R. W.Co. v. McNulty, 34 Ind. 531. No such facts were set forth in the answer. A copy of the law of Ohio, authorizing such judgment and sale, would have been an appropriate mode of showing such facts. The proceedings in the attachment suits, in connection with the facts that they were instituted, immediately on the arrival in Ohio with 63 140 133 17 Craig v. Ensey. the horse, by Baker, being the next day after he got possession in this State, that he was the principal attaching creditor, and said horse the principal property attached, and he, Baker, the principal recipient of the proceeds of its sale, after paying costs, and that no bond on procuring the attachment appears to have been filed, might lead to a pretty strong inference that the possession of the horse was obtained from Mrs. Flint, and the animal removed to Ohio, in bad faith; but we hold the answer clearly bad on its face, in connection with the exhibits made a part thereof. See The Ohio, etc., R. W. Co. v. Alvey, 43 Ind. 180. No valid excuse, no legal justification, for failing to return or account for the horse, is shown. The judgment is affirmed, with costs. CRAIG V. ENSEY. PRACTICE.-Pleading Struck Out.-Bill of Exceptions.-Supreme Court.-A SAME.-Motion for New Trial.-Evidence.-A motion for a new trial on From the Hendricks Circuit Court. C. C. Nave and C. A. Nave, for appellant. N. M. Taylor and L. A. Barnett, for appellee. Craig v. Ensey. NIBLACK, C. J.-This was a suit commenced before a justice of the peace, by Samuel F. Ensey, against Amelia Craig, for the recovery of the possession of certain portions. of a building in Danville, in this State, used as a hotel, which it was alleged the plaintiff had leased to the defendant, and the defendant held over after her term had expired. The defendant answered in four paragraphs, the first in general denial, and the other three setting up special matters in defence. There was a finding and judgment for the plaintiff, before the justice. On appeal to the circuit court, the defendant moved todismiss the action for want of a sufficient complaint, but her motion was overruled. Thereupon, on motion of the plaintiff, the second, third and fourth paragraphs of the defendant's answer were struck out by the court. Upon a trial, the court found for the plaintiff, and rendered a judgment of restitution in his favor, and for damages for holding over the premises. Causes for a new trial, which the court refused to grant,. were assigned as follows: 1. For irregularity in the proceedings of the court in overruling the motion of the defendant to dismiss the cause, and for excluding certain evidence offered by defendant; 2. That the finding of the court was not sustained by sufficient evidence; and, 3. That the finding of the court was contrary to law. Errors are assigned here substantially as follows: 1. That the circuit court erred in striking out the second, third and fourth paragraphs of the appellant's an swer; 2. That the circuit court erred in overruling the appellant's motion to dismiss the action for want of a sufficient complaint; |