John v. Clayton

1 Blackf. 54, 1820 Ind. LEXIS 2

Opinion

Holman, J.

We must presume that the promise was proved as laid; and as it would be a very forced presumption that some time about the 10th of December, 1817, was after the 22d of December, 1818, we must consider that, in legal intendment, the promise was found by the jury to have been made previous ly to the commencement of the action; which finding would be sufficient to authorize the judgment.

Caswell, for the plaintiffs. Test and Lane, for the defendant.

As to the judgment of respondeat ouster, the defendants below have no reason to complain. The irregularity operated to their advantage, and afforded them the privilege of pleading to the action, from which, by the rules of law, they were precluded; and having availed themselves of that privilege, they can have no pretext, on account of the irregular advantage they have thus obtained, to reverse the judgment. The principle is general, that a man cannot assign that for error, which he cannot show was to his disadvantage. 2 Bac. Abr. 490; and we see no reason to except this case out of the general rule.

Per Curiam.

The judgment is affirmed, with 5 per cent, damages and costs.