Holman v. Mayhew

15 Ind. 263, 1860 Ind. LEXIS 392

• Court: Indiana Supreme Court
• Decided: December 8, 1860
• Status: Published

Opinion

Per Curiam.

The appellee filed a claim against the appellant, for cash received by said James Muir in his lifetime, without averring from whom it was received.

Among other things, the defendant, in his answer, set up the statute of limitations. To this a reply was filed, averring: 1. That said James received from said Hiram said money, in May 1843, as a technical and continuing trust, and during his lifetime concealed said trust; and that no demand was made for said money until 1855. 2. That said James received said money as the agent of said Hiram, and during his life concealed the fact that he had received the same. 3. That one Pea, in 1813, paid said money to said James, as the money of said Hiram, to he by said James delivered to the heirs and personal representatives of said Hiram; that said James concealed the fact of such trust, &c.

W. S. Holman, for appellant. J. W. Gordon, for appellee.

A demurrer to these several paragraphs was overruled.

The first and second are bad. The second because it does not show from whom the money was received; and the first pleads a conclusion of law, instead of a statement of the facts, in averring that there was a “ technical trust.”

The third is bad, in not showing the consent of said Hiram, or averring some reason for his not consenting, to the arrangement by which money averred to be his was to be paid, not to him, but to his heirs or representatives.

The judgment is reversed, with costs. Cause remauded, &c.