Smith v. McFall

1 Smith & H. 76

• Court: Indiana Supreme Court
• Decided: May 15, 1848
• Status: Published

Opinion

Per Curiam.

— “The cause of action is alleged to be deficient, in not stating that a demand had been made of the defendants for the damages assessed, before the suit was brought. The 7th section of the chapter above referred to, provides that upon filing such certificate the justice shall issue his summons, &e. It is true, the section immediately preceding requires a demand to be made before the right of action accrues, but though it would be necessary to prove upon the trial that such demand had been made, the only cause of action required to be filed is the certificate. It has been decided that in actions of debt on penal bonds conditioned for the performance of covenants, before a justice of the peace, no statement of the demand, except the filing of the bond, is necessary. Olds v. The State, 6 Blackf. 91.”

Judgment reversed, &c.