Jerauld v. Trippet et al. The proper exhibits were filed with the complaint. A demurrer alleging as ground, that the said complaint does not state facts sufficient to constitute a cause of action, was sustained, and exceptions reserved. This ruling presents the sole question in the case. The question involved in this case has recently been under the full consideration of this court, and its opinion delivered by NIBLACK, J., in the case of Hogshead v. Williams, 55 Ind. 145, and our own decisions therein collected. In considering the present case we have looked into the authorities generally, and find that our views are uniformly supported by the English and American decisions. Bellows v. Lovell, 5 Pick. 307; Concord Bank v. Rogers, 16 N. H. 9; Barney v. Clark, 46 N. H. 514; Sawyer v. Bradford, 6 Ala. 572; Agee v. Steele, 8 Ala. 948; Armstead v. Thomas, 9 Ala. 586; Gilder v. Jeter, 11 Ala. 256; Hetherington v. Br. Bank, etc., 14 Ala. 68; Crawford v. Gaulden, 33 Ga. 172. Hollingsworth v. Tanner, 44 Ga. 11; M'Kenny's Ex'rs v. Waller, 1 Leigh, 434; Alcock v. Hill, 4 Leigh, 622; Humphrey v. Hitt, 6 Grat. 509; Newell v. Hamer, 4 How. Miss. 684; The United States v. Simpson, 3 Pen. 437; Mundorff v. Singer, 5 Watts, 172; Bryant v. Rudisell, 4 Heisk. 656; Miller v. Porter, 5 Humph. 294: Melton v. Howard, 7 How. Miss. 103; Pickens v. Finney, 12 Sm. & M. 468. In the case of the Union Bank of Tennessee v. Govan, 10 Sm. & M. 333, a case almost identical with the one under consideration, the court, after an elaborate examination of the question, sum up their opinion as follows: "In the next place, after execution issued, the plaintiff's attorney wrote a note to the sheriff in the following words: You will hold up the execution against A. R. Govan in favor of the Union Bank till you hear from me again.' The decisions of this court are conclusive on this point. This direction given to the sheriff is almost indentical with that which was given in the case of Newell & Pierce v. Wallace v. Furber. Hamer, 4 Howard, 684, which was held not to discharge a surety. This case is weaker than that in one point of view. There the order was given by the plaintiff; here, it is given by the plaintiff's attorney. The principle there settled was, that an agreement which will discharge the surety, must be positive and binding, based upon a valuable consideration, sufficient to tie up and restrain the creditor during the time for which the indulgence was given. The same principle has been reasserted in all the subsequent cases where the question has been raised." In the case we are now considering, there was no agreement to extend the time of the levy. It was a mere indulgence that could be countermanded at any moment, not founded upon any consideration; it did not change the obligation, and was not binding upon any person. The rights of the appellant to protect himself as surety were open to him continually from the time the judgment was rendered until he commenced this action. He could, at any time, have paid the debt and then have controlled the judgment for his own use. 2 R. S. 1876, p. 279, sec. 676. According to well settled principles and the authorities cited, the facts alleged in the complaint do not constitute a cause of action, and the demurrer was properly sustained. The judgment is affirmed, at the costs of the appellant. WALLACE V. FURBER. PRACTICE.-Waiver.-Pleading.-Abatement of Action.- Supreme Court.Where, without requiring a rule to reply, or otherwise calling the attention of the court, to a plea in abatement of an action, issues are made up on the merits of the action and tried and adjudicated upon by the court, action upon such plea is thereby waived, and no question upon it can be made for the first time in the Supreme Court. Wallace v. Furber. From the Marion Superior Court. R. Denny, for appellant. W. Morrow, N. Trusler and J. A. Henry, for appellants. PERKINS, J.-Tabitha Bardwell and her husband Seth, on the 12th day of September, 1871, executed to Andrew Wallace a mortgage on certain lands in Marion county, Indiana, to secure the payment of a certain note. The mortgage was duly recorded. On the 12th of September, 1872, Wallace commenced an action to foreclose said mortgage. Franklin Furber, a prior mortgagee of the same lands, was made a party, as was Goodwin, a subsequent purchaser, and the mortgagors. Furber was a resident of the State of Massachusetts, and was notified by publication, February 3d, 1873. Decree upon default against all the defendants. On the 5th of February, 1874, Furber moved to have the decree opened as to him. On the 2d of March, 1874, his motion was sustained, and he was permitted to file an answer. His answer was in two paragraphs: 1. The general denial; 2. A paragraph setting up his prior mortgage. A demurrer to the second paragraph of Furber's answer was overruled, and exception entered. Wallace then answered, in abatement, the pendency of Furber's suit to foreclose his own mortgage, commenced 24th December, 1873, decided June 26th, 1874, and replied to the second paragraph of Furber's answer to the suit of Wallace. In said suit of Furber against Wallace, Furber obtained judgment. This judgment has been affirmed in this court. Wallace v. Furber, ante, p. 103. It is decided in that case, that the description of the property in Furber's mortgage was sufficient, and that said mortgage was valid and had priority over that of Wallace. The same questions were presented below in this case, The Adams Express Co. v. Black et al. and were decided in the same way, at special term, and the decision was affirmed in general term. Counsel for appellant, in his brief, says: "This case is so intimately related to cause No. 5513" (that above mentioned), "appealed from the same court, and largely involving the same questions, as to require that the two cases should be considered together." Having decided the meritorious questions in this cause in the decision rendered in No. 5513, we need only refer to that decision for the grounds on which we affirm the judgment below in this. No notice appears to have been taken by either of the parties, or by the court, of the paragraph in abatement. The issues in the cause, upon its merits, were afterward made up by answers, replies and demurrers, were decided by the court, and a final disposition made of the cause, without the court's attention being called to the answer in abatement, or any objection or exception being taken. No rule to reply to it was taken. We shall not pass upon the question of its sufficiency, as action upon it by the court was clearly waived. The appellant is clearly in no situation to raise the objection in this court. The judgment below is affirmed, with costs. THE ADAMS EXPRESS Co. v. BLACK ET AL. PAYMENT.-Application of, by Creditor.-Instruction to Jury.—Replevin.-Livery-Stable Keeper's Lien.-On the trial of an action to replevy a horse, it appeared from the evidence that the agent of the plaintiff, who was the owner of the horse, had left it for feed and care with the defendant, who was a livery-stable keeper, contracting a debt therefor in a certain sum; that such agent had also contracted another debt to the defendant in a The Adams Express Co. v. Black et al. certain other sum; that such agent claimed that the latter debt was on his own personal credit, whilst the defendant claimed the same to have been contracted by the agent, on behalf of the plaintiff; and that, prior to the commencement of the action, such agent had sent by a third person, to the defendant, a sum of money equalling the exact amount of such feed bill, but, no direction having been given as to its application, the defendant had applied it first in discharge of the latter debt, and the residue upon such feed bill. Held, that it was error to instruct the jury, that, in the absence of an express, direction as to the application of such payment, the defendant had the right to apply the same upon either indebtedness. Held, also, that the true rule in such case is, that such application should be made according to the intention of the payor, as the same may be gathered from all the circumstances of the case. From the Putnam Circuit Court. M. A. Moore and G. C. Moore, for appellant. Howк, J.-This was an action by the appellant, as plaintiff, against the appellees, as defendants, to recover the possession of one bay horse of the alleged value of one hundred and fifty dollars. In its complaint, the appellant alleged, in substance, that it was the owner and entitled to the possession of said horse; that the appellees then had possession of said horse, and unlawfully and wrongfully detained the same from the appellant; and that said horse had not been taken on any tax, assessment or fine or any execution or other writ against the appellant. Wherefore, etc. On a proper affidavit filed by the appellant, an order for the delivery of said horse was duly issued, by virtue of which the sheriff of Putnam county took the horse from the appellees, and, upon the execution of the necessary undertaking, delivered the same to the appellant. The appellees answered the complaint, in two paragraphs, in substance as follows: 1. A general denial; and, 2. That, before the commencement of this suit, the apVOL. LXII.-9 |