Kimble v. Adair
Indiana Supreme Court
ERROR to the Franklin Circuit Court.—A suit was brought in a justice’s Court on a sealed note, hj Kimble, the assignee, against Adair, the maker. The note reads as follows: “On or before the 1st of March next, for value rec’d. I promise to pay John Spangler or order'25 dollars; provided the said Spangler has not made any compromise, or received any pay, for timber cut on the land which he purchased of W. H. Eads and has this day given up.
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ERROR to the Franklin Circuit Court.—A suit was brought in a justice’s Court on a sealed note, hj Kimble, the assignee, against Adair, the maker. The note reads as follows: “On or before the 1st of March next, for value rec’d. I promise to pay John Spangler or order'25 dollars; provided the said Spangler has not made any compromise, or received any pay, for timber cut on the land which he purchased of W. H. Eads and has this day given up. Witness my hand and seal this 27th of Oct. 1827.—John Adair, (seal).” Judgment in favour of Kimble. Appeal to the Circuit Court by Adair; in which Court,…
1Opinion of the CourtHolman, J.
The right of opening and concluding a case belongs to him who holds the affirmative; and from all that we *321can learn of the nature of the defence in this case, the affirmative' was with the defendant. There being no plea or written defence, and the execution of the note being admitted, there was nothing required on the part of the plaintiff to secure his case; and unless something was shown by the defendant, under the proviso in the note, to defeat his claim, he would obtain a verdict and judgment as a matter of course. It seems to us that it lay upon the defendant to show, that the plaintiff…
2Cited by3 opinions
- Hamlyn v. NesbitIndiana Supreme Court · 1871
- McCloskey v. DavisIndiana Court of Appeals · 1893
- McLees v. FeltIndiana Supreme Court · 1858