torney herein, and has ever since been and is now acting as such attorney for plaintiff in this action, with his said partner, Murphy."

It was further averred in its answer herein that appellant then withdrew from such suit, and appeared no further therein; and that thereupon such justice of the peace, still acting as the attorney for the plaintiff, and not otherwise, entered of record upon his docket, as such justice, his judgment in such suit, the payment of which is sought to be enforced by appellee's motion in this suit or proceeding.

Appellee's written motion to strike out appellant's answer herein, the substance of which we have just given, was sus tained by the court below, and to this ruling appellant excepted, and filed its bill of exceptions. This ruling is the second error upon which appellant's counsel rely for the reversal of the judgment below.

In his motion to strike out appellant's answer herein, appellee assigned the following causes therefor, namely: 1. Appellee's motion or complaint herein is one to which no answer will lie; 2. Such answer makes a collateral attack upon the judgment mentioned in such motion or complaint; 3. Appellant's answer is immaterial and irrelevant; and 4. Appellee's motion or complaint herein is an ex parte proceeding.

We are of opinion that the court below clearly erred in rejecting or striking out appellant's answer herein. As we have already said, appellee's motion or complaint herein was, under the statute, the institution of a new suit or proceeding by appellee and against the appellant. In other words, such suit or proceeding was the "one form of action for the enforcement of private rights," which, in our code, is "denominated a civil action": R. S. 1881, sec. 249; Burkett v. Holman, 104 Ind. 6.

Although the pleading first filed by the plaintiff in such a suit or proceeding as the one at bar is called in the statute a "motion," yet we do not doubt that the sufficiency of the facts stated therein to constitute a cause of action may be tested by demurrer, nor that answers and replies may be filed and issues formed thereon, either of law or fact, as in other civil actions.

It has often been held by this court, and correctly so, we think, that the modes of procedure and rules of practice prescribed by our Civil Code in civil actions are all applicable to a special statutory proceeding for the enforcement of private rights, except where the statute authorizing and regulating such special proceeding has expressly or by fair implication

prescribed a different course of procedure or rule of practice therein: Crume v. Wilson, 104 Ind. 583; Bass v. Elliott, 105 Id. 517; Robinson v. Rippey, 111 Id. 112, 118; Hutchinson v. Trauerman, 112 Id. 21.

It is assigned as a cause for striking cut or rejecting appellant's answer herein, that it makes a collateral attack upon the judgment mentioned in appellee's motion or complaint.

It is settled by our decisions that a judgment cannot be attacked or impeached in a collateral suit or proceeding unless it be void: Exchange Bank v. Ault, 102 Ind. 322; Baltimore etc. R. R. Co. v. North, 103 Id. 486; Walker v. Hill, 111 Id. 223; Ely v. Board etc., 112 Id. 361. The doctrine of the cases cited, however, has no application whatever to a case where, as here, the judgment is shown by the averments of the complaint or answer to have been void. It will not do to say, we think, that the averments of appellant's answer herein are immaterial and irrelevant, as alleged by appellee. While it is true that a motion to strike out a pleading is not the equivalent of a demurrer thereto, yet, where the motion has been sustained, it must be held, we think, that such motion, like a demurrer, admits the truth of all the facts well pleaded, for the purposes of the motion. Under our code it has often been held that a motion to strike out an answer will not perform the office of a demurrer thereto for the want of sufficient facts.

In the early case of Port v. Williams, 6 Ind. 219, in speaking of an answer which had been struck out on motion, the court said: "Whether it [the answer] was a sufficient defense to bar the action was wholly immaterial. It was, at least, such pertinent matter as the court ought not to strike out on motion. It was not so irrelevant as to warrant that; it was not a sham defense. We are therefore of opinion that the court erred in sustaining the motion to strike out." To the same effect are the following cases: Clark v. Jeffersonville etc. R. R. Co., 44 Id. 248; Indianapolis etc. Co. v. Caven, 53 Id. 258; City of Elkhart v. Simonton, 71 Id. 7; McCammack v. McCammack, 86 Id. 387; Burk v. Taylor, 103 Id. 399.

In the case in hand it cannot be claimed that the facts stated in appellant's answer were not pertinent to appellee's motion or complaint, or were irrelevant, or were a sham defense to this action. Whether, therefore, appellant's answer was a good or bad defense to this suit or proceeding, it is certain that the court below erred in sustaining appellee's motion

to strike out or reject such answer, and that, for this error, the judgment below must be reversed.

This conclusion disposes of the questions actually presented for decision by this appeal; but it is proper, we think, and perhaps better, for the parties to this suit that we should consider and decide now the question of the sufficiency of appellant's answer herein to withstand a demurrer thereto for the want of sufficient facts. We are of opinion that the facts stated in such answer are amply sufficient to constitute a good defense in bar of appellee's suit or proceeding, and to show, if sustained by the evidence, that the justice's judgment, mentioned in the motion or complaint herein, was and is absolutely null and void. Such a judgment appellant had the right to attack and impeach whenever and however it was sought to be enforced. If, at the time his action against appellant was pending before the first justice, appellee in person had been a qualified and acting justice of the peace of Starke County, and if, when the change of venue was granted, the action had been sent to appellee as such justice, and he had tried and decided the case, and had rendered and entered judgment therein in his own favor and against appellant, no one could doubt that such judgment was wholly void and could not be enforced; for such a judgment would be in direct violation of the old and well-known legal maxim, namely, Nemo debet esse judex in propria sua causa: Broom's Legal Maxims, 116.

sua causa.

In legal effect, however, under the averments of appellant's answer herein, the justice's judgment, the payment of which is sought to be enforced in this suit or proceeding, was rendered by the judgment plaintiff, appellee herein, in propria For it is averred in such answer that the justice of the peace to whom the action was sent on change of venue was "still acting as the attorney for the plaintiff, and not otherwise," at the time he rendered such judgment in the aforesaid action. If the fact so averred be true, the justice's judgment was unquestionably void.

The judgment is reversed, with costs, and the cause is remanded, with instructions to overrule the motion to strike out the answer, and for further proceedings not inconsistent with this opinion.

VALIDITY OF JUDGMENT RENDERED BY Disqualifed JUDGE: See note to Moses v. Julian, 84 Am. Dec. 126. Acting as counsel in case disqualifies judge and renders judgment void: Newcome v. Light, 44 Am. Rep. 604.

VOID JUDGMENT MAY BE COLLATERALLY ATTACKED: See Sidensparker v. Sidensparker, 83 Am. Dec. 527, and note; Hahn v. Kelly, 94 Id. 742, and note 762-770.

MOTION TO STRIKE OUT ANSWER, WHEN ENTERTAINED: See the note to People v. McCumber, 72 Am. Dec. 521-526.

BROWN V. JONES.

[113 INDIANA, 46.]

ACCEPTOR OF BILL OF EXCHANGE HAS RIGHT TO QUALIFY HIS ACCEPTANCE by designating the place of payment; and when the place of payment is thus designated, it becomes part of the contract of acceptance. SECTION 368, INDIANA REVISED STATUTES OF 1881, PROVIDING THAT IT SHALL NOT BE NECESSARY TO AVER OR PROVE DEMAND AT PLACE OF PAYMENT fixed by a bill, note, or other contract, has no application to a case where the demand of payment is necessary to create a cause of action against the drawer or indorser of a bill of exchange. PRESENTMENT MUST BE MADE AT PLACE OF PAYMENT DESIGNATED by the acceptance of a bill of exchange, or a sufficient excuse for failing to so present it must be shown, or else the drawer and indorsers of the bill will be discharged.

IT WILL BE PRESUMED BY SUPREME COURT THAT BILL OF EXCHANGE WAS not Presented at PLACE DESIGNATED by the acceptance, where it is not stated in the finding that the bill was so presented.

ACTION by Jones and others against James F. Brown, the drawer and indorser of a bill of exchange. The opinion states the facts.

J. McCabe and E. F. McCabe, for the appellant.

I. E. Schoonover, W. B. Reed, J. E. McDonald, J. M. Butler, and A. L. Mason, for the appellees.

By Court, ELLIOTT, J. The material facts as they appear in the special finding, but stated in a condensed form, are these: On the eleventh day of February, 1884, the appellees were bankers, doing business at Attica, Indiana, under the name of the Citizens' Bank. On that day the appellant indorsed to them a bill of exchange drawn by him on F. W. Pullen & Co., Chicago, Illinois. The acceptance of the bill was in these words: "Accepted and payable at 1363 Kinzie Street." By a series of indorsements, the bill reached the First National Bank of Chicago for collection. On the fifteenth day of March, 1884, that bank placed the bill in the hands of Orville Peckham, a notary public, to be presented for payment. "The notary," as the finding states, "went with said bill to the office of the acceptors for the purpose of present

ing it for payment, but found the office closed and locked, and was, after the exercise of reasonable diligence, unable to find any member of the firm of F. W. Pullen & Co., and that said bill was thereupon duly protested for non-payment." Notice of protest was addressed to James F. Brown, and on the evening of March 16th was mailed to the Citizens' Bank, at Attica. On the eighteenth day of that month the notice was received by the Citizens' Bank, and on the same day it was mailed to the appellant at his residence and post-office, together with a written request for payment.

The acceptors of the bill had the right to qualify their acceptance by designating the place of payment. The designation of the place of payment became part of the contract, and it is an element that exerts an important influence upon the

case..

One of the positions assumed by the appellant is, that he cannot be held as an indorser or drawer because it does not appear that the bill was presented at the place fixed by the contract. It is the contention of his counsel that, while the finding shows that the bill was presented at the office of the acceptors, it does not appear that the office was the place designated in the acceptance.

In answer to the appellant's argument on this question, the appellee's counsel assume that the case is governed by our statute, and that it was not necessary to show that the bill was presented for payment. The statute to which they refer provides that: "In any action or defense founded upon a bill or note or other contract for the payment of money at a particular place, it shall not be necessary to aver or prove a demand at the place, but the opposite party may show a readiness to pay the demand at the proper place": R. S. 1881, sec. 368.

It is very clear that this statute has no application to a case where the demand of payment is necessary to create a cauze of action, against the drawer or indorser of a bill of exchange, and so it has been many times decided.

The finding does not show in express terms that the bill was presented at 1363 Kinzie Street, nor does it show, as counsel assume, that diligence was used to find that place. It does state, in a very general way, that reasonable diligence was used to find the members of the firm of F. W. Pullen & Co., but it does not state that diligence was used to find the place described in the acceptance. If it were conceded that the general conclusion as to the exercise of diligence is sufficient,