
    A. S. Trimble, Admr., v. E. A. Hensley.
    Pleadings — Imperfect Petition — Commissioner’s Report Will Not Help.
    A commissioner’s report will not be allowed to help an imperfect and defective petition. A judgment must be based as well upon the petition as the proof, and testimony which tends to establish some fact not alleged in the petition is irrelevant and incompetent.
    APPEAL PROM MORGAN CIRCUIT COURT.
    September 7, 1872.
   Opinion by

Judge Eindsay :

Appellee’s petition sets out the fact that he placed in the hands of the intestate a large number of claims for collection, but fails to discriminate as to which he received as sheriff, which as constable, and which as town marshal. He alleges that large sums of money were collected on these claims and considerable amounts paid over to him, but he fails to fix the aggregate of either.

He also claims that the intestate laid himself liable for many claims but fails to state what claims or in what manner the liabilities were incurred.

The petition utterly fails to set out any amount for which judgment should be rendered or to furnish any data by which such amount could be ascertained by the court. It is nowhere alleged that appellant is ignorant of the particulars of his pretended cause of action nor that a discovery from the appellee is either necessary or desirable.

Such a paper as that, styled the petition, is in no sense a pleading, and if it had remained unanswered, or if the appellee Had come into court and confessed that everything it contained was true, no judgment could have been rendered upon it.

The commissioner’s report cannot be allowed to help this imperfect and defective petition. The judgment’ must be based as • well upon the petition as the proof, and testimony which tends to establish some fact not alleged in the petition is irrelevant and incompetent. Neither the amended petitions nor the answers cure the defects pointed out. It follows therefore that the judgment as to the matters and things touching intestate’s official action, either as sheriff, constable or marshal, must be reversed.

Rodman, for appellant.

Haselmgg, for appellee.

The plea of the statute of limitation as to the merchant’s accounts sued on should have been sustained. More than six years had elapsed after the date of the last charge on either of the accounts before the action was instituted.

Judgment reversed and cause remanded for further proceedings consistent with this opinion.  