Nutzenholster et al. v. The State, ex rel. Sumner et al. motion for a new trial, and in support of this assignment of error two questions are discussed. The first is, that the court erred in admitting in evidence, over the objection and exception of the appellants, the bond of the constable, without proof that the same had been executed by Kemp, the surety on such bond. It is claimed by the appellees, that the bond, having been duly authenticated as provided by sec. 283 of the code, 2 G. & H. 183, was admissible in evidence without proof of its execution either by the constable or his surety. But it is maintained by the appellants, that while the above position may be correct when applied to the constable, when applied to the other appellant it is incorrect, for the reason that Kemp, the surety, was dead, and the action was being prosecuted against his administrator, and that as to him it was necessary to prove that the bond had been executed by the surety, and in support of this position reference is made to the cases of Riser v. Snoddy, 7 Ind. 442, and Mahon's Adm'r v. Sawyer, 18 Ind. 73. The case of Riser v. Snoddy, supra, was a proceeding by the administrator against heirs of a decedent, to obtain an order for the sale of real estate to pay the debts of such decedent. To prove that it was necessary to convert real estate into money to pay debts, the administrator, over the objection and exception of the heirs, was permitted to read in evidence certain notes, which purported to have been executed by the decedent without proof of his handwriting. It was claimed that the notes were properly admitted under section 80 of the code, 2 G. & H. 105, without proof, the execution thereof not having been denied under oath. This court say: "This suit was not against a party to the notes, nor were they read in evidence 'against such party.' The case, therefore, is not within the language of the statute. Is it embraced by its spirit? We think not. The maker of an instrument would know it, and if one were presented with his signature which he did not make, he would know it. Hence, it is reasonable to require him to deny instru Nutzenholster et al. v. The State, ex rel. Sumner et al. ments signed with his signature, under oath, if at all. Not so as to his heirs, or others not purporting to be makers of the instruments. Heirs involved in suits like the present are generally, as in this case, minors, who are incapable of making even an admission, and against whom proof on all points is always required. They could not be expected to know, in all cases, the genuineness of a parent's signature, and be prepared to admit or deny it, in every given instance; and it would be unreasonable to require them to so do." It was held by this court in Mahon's Adm'r v. Sawyer, supra, that "in an action upon a note or written contract, against the estate of the maker, the handwriting or execution of the note or contract must be proven, section 80, 2 G. & H. 105, being inapplicable to such cases." While the appellees admit that the above decisions were correct, as applied to the facts of such cases, they insist that they have no application to official bonds. This action does not come within the letter of section 80 of the code, supra. Does it come within its spirit? We think this case is not governed by section 80 of the code, but is governed by other sections of the statute. Section 14 of an act touching official bonds and oaths, I G. & H. 164, provides, that "a copy of any official bond legally certified, shall be received as evidence, and suit maintained thereon as on the original." The matter stands thus: section 5 of the above act requires the bonds of constables to be filed with the clerk, who has to record the same. Section 283, 2 G. &. H. 183, provides for sworn copies of records, bonds, etc. Then section 14 above quoted makes such copy evidence. We are of the opinion that the court committed no error in admitting in evidence the copy of the bond, without proof of its execution. It is next maintained by the appellants that the court erred in admitting in evidence, over the objection and exception of the appellants, the transcript of the judgment and proceedings in favor of the relators and against Bender, for the reason that the judg Nutzenholster et al. v. The State, ex rel. Sumner et al. ment was rendered in the name of William Sumner & Co., and that the execution was issued in that name. We think there is nothing in the objection. The transcript was properly admitted. The appellants are estopped from denying the regularity of the judgment, by having acted upon the execution and collected the money thereon. This court, in the case of The State v. Hicks, 2 Blackf. 336, which was a suit upon the official bond of the sheriff, for failure to pay over money collected on an execution, say: "The second assignment rests on better authority. In the case of Wakefield v. Lithgow, 3 Mass. 251, it was decided, that where a sheriff has collected money on an execution, he is bound to pay it over to the execution-plaintiff on demand. Where the writ is from a court of competent jurisdiction, an error or irregularity in the rendition of the judgment, or in the previous proceedings, furnishes no excuse to the officer for withholding the money. The sheriff recognized the legality and authority of the execution by acting upon it; and after having collected the money, it is not for him to say that the writ was illegal or unauthorized by the judg ment. In the case of Smith v. Bowker, 1 Mass. 81, it was held that the officer is not holden to look beyond his execution; and, whether the judgment be erroneous or not, is a question with which he has nothing to do. See, also, The People v. Waters, 1 Johns. Cas. 137." The above decision is directly in point, and is decisive of the point under consideration. We, therefore, hold that the court committed no error in admitting in evidence the transcript of the judgment, and subsequent proceedings. The Judgment is affirmed, with costs. W. R. Pierse and H. D. Thompson, for appellants. M. S. Robinson, for appellees. Knight et al. v. McDonald et al. GORDEN v. GARR ET AL. PRACTICE.-Motion to Strike Out.-A motion to strike out cannot perform the office of a demurrer. APPEAL from the Jasper Circuit Court. WORDEN, C. J.-Action by the appellees against the appellant upon two promissory notes executed by the defendant to the plaintiffs. Judgment for plaintiffs. There were two paragraphs in the complaint; one upon each of the notes; and copies of the notes were set out. The only errors assigned are upon the rulings of the court in overruling motions to strike out, respectively, each paragraph of the complaint. It is claimed here, against the ruling below, that the paragraphs are defective in not stating facts sufficient, etc. A motion to strike out does not perform the office of a demurrer. Besides this, the respective paragraphs are good on demurrer. The question of time seems to be the important one in the cause. The judgment below is affirmed, with costs and ten per cent. damages. R. S. Dwiggins, for appellant. E. P. Hammond and T. F. Spitler, for appellees. KNIGHT ET AL. v. McDONALD ET AL. REAL ESTATE, RECOVERY OF.-Pleading.-A complaint is sufficient in an action for the recovery of real estate, if it contain the substance required by the statute. MARRIED WOMAN.-A married woman may, during coverture under her third marriage, maintain an action for the recovery of real estate which came to her on the death of her first husband, by descent from him, and which she attempted to convey during coverture under her second marriage. 37 463 146 403 Knight et al. v. McDonald et al. APPEAL from the Shelby Circuit Court. PETTIT, J.-The complaint is as follows, in substance and effect: The plaintiffs complain of the defendants, and say that on the 30th day of January, 1856, one Henry Gird died, being the owner in fee simple of certain described real estate in said county, and left him surviving the plaintiff, Margaret, his widow, and John Gird, Laura Gird, and Henry Gird, Jr., and that John Gird and Laura Gird are still living; that Henry Gird, Jr., died on the -day of -, 1857; that afterward, on the day of the lands of which Henry Gird, Sr., died seized were divided among his said children and the said Margaret, his widow, and that the lands sued for, and particularly described, were set off to said widow; that afterward the said Margaret intermarried with Charles Coulter, January 7th, 1857; and while Margaret was the wife of the said Charles Coulter, on the 18th day of April, 1858, they sold and, by deed of that date, attempted to convey the land set off and assigned to Margaret, as the widow of Henry Gird, Sr., to one Philip Hoop for nine hundred and fifty dollars, which was paid to and received by said Charles Coulter. And at the time of the sale and conveyance Margaret was the wife of said Coulter, and could not and did not convey any title to the land; and that after making said deed, on the day of, 1865, Coulter died, leaving said Margaret his widow; and that on the 27th day of August, 1870, the plaintiffs were married and are now husband and wife; and that the said Margaret E. Knight, in her own separate right of estate, is the owner of said land in fee simple, and entitled to the immediate possession of the same; and that defendants hold possession thereof without right, and for twelve years last past have wrongfully kept her out of possession. Judgment for possession and one thousand dollars damages, for being kept out of possession, is demanded. To this complaint there was a demurrer, for want of sufficient facts, sustained, and this ruling presents the only question in the case. Was the complaint sufficient? We think |