
    Desher v. Parks.
    APPEAL from the Miami Court of Common Pleas.
   Hanna, J.

Suit before a justice of the peace. Judgment for plaintiff, Parks, for 50 dollars. Appeal by defendant, and judgment against him in the Common Pleas for 70 dollars, from which he appeals to' this Court.

Two trials were had in the Common Pleas, in which the jury failed to agree, after which the Court permitted the plaintiff to file a complaint to which an affidavit was attached, by the attorney of the plaintiff, stating that it was “in substance the same as that filed before the justice,” &c.

The record does not contain the original complaint, nor show any reason for filing the new one.

A motion was made by the defendant, and overruled, to reject the new complaint.

As our new code of procedure appears to have been framed upon the notion that it was proper to dispense with mere form as much as possible, and as the affidavit avers that the complaint filed is substantially the same as the original one, we think it a sufficient compliance with the statute (2 R. S. p. 46), which provides that “if an original paper or pleading be lost, or withheld by any person, the Court may authorize a copy thereof to be filed, and used instead of the original.” This Court, in the absence of a reason for permitting the filing, will presume in favor of the order of the Court.

N. O. Ross and R. P. Effinger, for the appellant.

A demurrer was then filed to the said complaint and overruled, which presents the next point for consideration. The averments are that plaintiif purchased of defendant on, &c., four head of fat cattle, at, &c., and advanced, as part payment thereon, 50 dollars; that said cattle were to be .delivered to the plaintiff at Peru, on, &c.; that defendant did not deliver them at, &c., but had failed and refused so to do; nor had he paid, or offered to pay, said 50 dollars, &c.

There is no averment that the plaintiff was ready, at the time and place, to receive and pay for the said cattle; and, for that reason, it is insisted that the complaint is insufficient.

The demurrer was properly overruled. The complaint was sufficient, before a justice, to recover the sum advanced and its interest.

The remaining point is that the judgment is excessive. The amount is greater than the sum advanced and interest. We do not think that proof could be properly admitted, under the complaint, of damages for the non-delivery of the cattle; and, therefore, the judgment is too large.

Per Curiam.

The judgment- is reversed with costs.

Cause remanded, &c.  