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Curry v. Baker, Governor.

of any member or officer of the proper board of judges or canvassers.

Second. When the contestee was ineligible.

Third. When the contestee, previous to such election, shall have been convicted of an infamous crime; such conviction not having been reversed, nor such person pardoned at the time of such election; or,

Fourth. On account of illegal votes."

It is very plain that if the contest was of a State election, where the conduct of the board of judges or canvassers at each particular precinct was involved, or was insti. tuted on account of illegal votes received at any number of the thousand precincts open on one special day, it would be impossible for any one contestor to make any statement of facts from his own personal observation, extending over so wide a field, limited to a given moment of time, and yet required to be specific in detail and locality. To construe the language of the statute, therefore, as is contended by the appellant, and require the affidavit to be founded alone upon the personal observation of the contestor, would involve a practical change in the title of the act, so that it should read, an act to prohibit the contesting of any election.

It is never the duty of courts to place so rigid a construction upon the language of any act, where there is room for interpretation, as to defeat the purpose of the legislature. Still less are we disposed to adopt such a view where the object of the law is to secure to the electors the purity of the ballot-box, by subjecting to the scrutiny of the courts the conduct of the officers in charge of the election.

The statute requires that the statement specifying the grounds of contest shall be verified by the affidavit of the elector; that is, literally, made out to be true by such affidavit. No statement can go beyond the belief of the party making it. That belief may arise from personal observation, from sight or from sound, from information derived from others, or as the result of a logical conclusion from

Walpole's Administrator v. Bishop and Another.

other known facts. But we know that sight or sound may deceive, as information derived from other persons may mislead. They can, at most, when united, produce but one result, conviction of the mind, or in other words, belief. When, therefore, one states his belief in the truth of a statement, the assertion is as strong as language can make it. Without the proper evidence to produce a conviction, he can have no belief on the subject; and the mind can receive nothing beyond a conviction of the truth. At common law,certain pleas concluded with a verification-an assertion of the ability of the pleader to prove the matter alleged. Wilkes v. Hopkins, 6 Man. & G. 36, note (©). In the affidavit before us, the affiant states his information as a source of his belief, but he does not rest there; the truth of the statements are asserted as he “verily believes.” The assertion of his belief is direct and positive, and renders the affidavit conclusive. Simpkins v. Malatt, 9 Ind. 543; Trew v. Gaskill, 10 Ind. 265; State v. Ellison, 14 Ind. 380; McNamaru v. Ellis, Id. 516.

The judgment is affirmed, with costs.

S. Claypool, Huf & Langdon, and Ilamilton G. Galvin, for appellant.

J. W. Gordon, W. March, and D. E. Wiliamson, Attorney General, for appellee.

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156 140 459

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WALPOLE'S Administrator 1. BISHOP and Another.

PARTIES.—Decedents' Estates.--The heirs at law of a decedent against whose

estate it appears there exist any debts cannot maintain an action for mou..

cy due the estate. SAME.-Sait by the heirs at law of A. against the administrator of B., to re

cover money collected by B. in his lifetime, as attorney of A. The complaint alleged, that, in the same year that A. died, an administrator of his estate was appointed, who six years afterwards resigned his trust; that no assets ever came to his hands; that no claims against A's estate were crer

Walpole's Administrator v. Bishop and Another.

filed in court; that no other administrator of A.'s estate was ever appointed; that the widow of A. paid all the claims that were presented or that she knew existed against his estate, and fully administered the same, years be

fore. Held, that these plaintiffs could not maintain the action. INTEREST.-Money Collected by Attorney.-Demand.- Conversion.-An attorney

is not liable for interest on money collected by him, until demand made by the party entitled to receive it, or until a wrongful conversion.

APPEAL from the Marion Common Pleas.

GREGORY, J.- This is a suit by the heirs at law of John Bishop, deceased, against Walpole's administrator, to recover money collected by Walpole in his lifetime, as attorney of Bishop. The complaint alleges, that Bishop died in 1856; that one Durham was in that year appointed his administrator; that he resigned his trust in 1862; that no assets of any kind ever came to his hands; that no claims against Bishop's estate were ever filed in court; that no other administrator had ever been appointed; that the widow of Bishop paid all the claims that were presented or that she knew existed against his estate, and fully administered the same, years since.

A demurrer was filed to this complaint, on the grounds, first, that it does not state facts sufficient; second, that there is a defect of parties plaintiffs.

The demurrer was overruled, and the defendant excepted.

The defendant filed the general denial. The issue was tried by the court; finding for the plaintiff for three hundred and sixty-four dollars.

The evidence, which is a part of the record, shows that a judgment was rendered in the Marion Common Pleas, on the 10th of January, 1855, in favor of Bishop against one Van Houten, administrator of Moore, for four hundred dollars; that two assignments of parts of the judgment,of one hundred dollars each, had been made by Bishop to Walpole. Van Houten, the sole witness in the case, testified, that he was and still is the administrator of Moore's estate, and was the defendant in the judgment read in evidence; that Walpole was the attorney for Bishop in the action; that Bishop

Walpole's Administrator v. Bishop and Another.

made the assignments to Walpole to pay the latter for fees as an attorney; that Bishop died in the spring of 1856; that the plaintiffs, Sarah and Lewis Bishop, are the only lieirs of Bishop, deceased; that Sarah Bishop, the widow, settled and paid the debts of decedent; that there is no administrator of Bishop's estate; that in June or July, 1856, he paid to Walpole as Bishop's attorney a part of the judgment; that on the 31st of December, 1856, he paid Walpole $285.45, being the balance of the judgment and interest, including one or two small claims in favor of one McLeary against Moore's estate; that he took Walpole's receipt therefor, which he produced; that Sarah Bishop frequently asked and urged him, as administrator of Moore's cstatc, to pay the judgment referred to; that he always gave her an erasive answer, requesting her to wait till the Charley Garner case was settled, that he thought there would be more coming to her; that he never told Mrs. Bishop or Lewis Bishop that he had paid the judgment in full to Walpole, and had every reason to believe that neither of the plaintiff's ever knew it was paid until they learned it by the receipt filed as voucher ninety-one in his report as Moore's administrator, at the October term, 1867, of said court; that the reason he never told Mrs. Bishop it was paid was, because she was easily troubled and very often became sick from trouble.

The first question is, can the heirs at law of Bishop maintain this action?

It is claimed, that under sections three and four of the code (2 G. & H. pp. 34–5–6–7), the lieir may sue, being the real party in interest, after the payment of debts. There is no averment in the complaint that there are no debts or liabilities for the expenses of administration, but, on the contrary, it is alleged, that administration was granted to Durham in 1856; that he continued to be administrator until he resigned his trust in 1862; and that no assets of any kind ever came to his hands. His expenses, at least, are a charge on the estate. The averment that Mrs. Bishop, the widow, paid all the claims that were presented, or that she

Stebbins v. Goldthwait and Another.

An ac

knew existed against her husband's estate, is not an averment that there are no such debts. She was never the ad. ministratrix of the estate; she therefore never had it in her power fully to administer it.

Upon the death of Bishop, his personal estate vested in his administrator, and not the heirs at law. Walpole's liability was to the administrator, and not the heirs. IIe was under no obligation to account to the heirs for the money collected by him as the attorney of the decedent. tion cannot be maintained by them against his administrator.

There is nothing shown in evidence that makes Walpole’s estate liable for interest. An attorney is not liable for interest on money collected by him, until demand made by the party entitled to receive it, or until a wrongful conversion. There is no proof of either in this case. The act of Van Houten in not telling a nervous woman a fact that would have troubled her or made her sick could hardly be charged to Walpole. Indeed, it is somewhat difficult to understand upon what principle the court below proceeded in charging Walpole's estate with interest on the money collected by him as the attorney for Bishop.

Judgment reversed, with costs; cause remanded, with directions to sustain the demurrer to the complaint, and for further proceedings.

J. S. Harvey, for appellant.
J. Milner, for appellee.

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PLEADING.-Decedents' Estates.- Promissory Note.--Abatement.—Where the assignee of a promissory note, to whom it has been indorsed in blank by the

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