PERSONS V. McKIBBEN.

A. executed a note to B. for a specific sum, to be paid to C., or credited on C.'s note, which A. then held. A memorandum was subjoined to the note, that if C. should not complete for B. a certain job of work, according to a plan submitted, then A. was to be bound to B. for the note. C. having performed a part of the work, died before its completion. In a suit by B. against A., after C.'s death, upon the note, held, that A. was entitled to a credit to the amount of the value of C.'s work.

The ratification of the assignment of a note made by an agent without proper authority, will relate back to the period of the assignment.

A party has a right, within reasonable limits, to introduce negative evidence. A judgment will not be reversed, though evidence was improperly excluded from the jury, where the verdict is substantially sustained by the evidence.

RRROR to the Vermillion Circuit Court.

STUART, J.-Debt by Persons against McKibben, on the following sealed 'note:

"$325. On or before the first day of March next, for value received, I promise to pay John L. Persons three hundred and twenty-five dollars, which is to be paid to Jonathan Beasley, or credited on said Beasley's note which I now hold. As witness my hand and seal, November 16, 1847. Thomas McKibben, [seal]."

Underneath was this memorandum:

"If the aforesaid Beasley does not complete a certain job of work according to a plan submitted to him by John L. Persons, then said McKibben is bound to said Persons for the above note. As witness my hand and seal, November 16, 1847. Thomas McKibben, [seal]."

The pleader avers that the job of work referred to in the writing obligatory, was digging a mill-race and excavating a tunnel, according to certain plans and specifications submitted by Persons to Beasley; that a reasonable time had elapsed for completing the work, yet that meanwhile Beasley had died, leaving the work unfinished.

The pleadings, modeled on the old system, extend to rejoinders and surrejoinders. As the demurrers filed do not remain for decision, no question is raised on the sufficiency of the pleadings.

May Term, 1854.

The issues were submitted to a jury. Verdict and judgment for McKibben for 123 dollars and 50 cents. The evidence is made part of the record in the proper mode. McKIBBEN. Persons brings the case to this Court.

PERSONS

V.

In his defence McKibben claimed the value of the work done by Beasley on the mill-race; also three notes made by Persons and assigned by the payees to McKibben. On these claims the judgment in favor of the latter over and above the sealed note is predicated.

The main question presented relates to the work of Beasley. Before discussing that, it will be proper to dispose of the questions arising out of the other parts of the defence.

McKibben, as the assignee of Baxter, held a note against Persons. The assignment was denied under oath. It seems this note had been placed in the hands of Welty, an attorney, &c., for collection. Welty assigned it to McKibben thus: "J. S. Baxter by D. Welty." To prove the assignment, Baxter was introduced. He testified that Welty was authorized to collect, but not to transfer the note; that when witness first heard of the assignment, he refused to ratify it; but that afterwards, at the instance of Mc Kibben, it was ratified; and that the indorsement was in the handwriting of Welty.

The note was assigned March 9, 1849; this suit was commenced March 17, 1849; and the ratification was in May or June following.

This is sufficient to entitle McKibben to the benefit of the set-off. The ratification related back to the time of the assignment, and necessarily included the act of Welty, with all its circumstances and incidents. Until plea pleaded denying the assignment under oath, the note was prima facie a good set-off in the hands of McKibben, and but for that plea, would have remained good. The plea merely put upon McKibben the proof of the assignment, and did not change his rights or relative position to Baxter or PerThe note, with the assignment thus ratified, was properly admitted.

sons.

The next question relates to the Iles note, payable in

1854. PERSONS

V.

lumber or sawing. It was the joint and several note of May Term, Persons and one Mondy. The evidence of Iles, the payee, tended to prove that he had made demand of Persons, one of the makers of the note. Mondy was offered as a wit- MCKIBBEN. ness to prove that there had been no demand. The record shows he was objected to and the objection sustained. The evidence, at best, must have been of the feeblest character; no less than fifty men in the court-house could have testified, namely, that they knew of no such demand. Still, whatever it was worth, the party, within reasonable limits, had a right to introduce even negative evidence.

But even if the Iles note be excluded, then taking the other matters of set-off at such estimates as the jury were at liberty from the evidence to place upon them, and the verdict is still substantially sustained. In such cases the judgment will not be reversed. Parker v. The State, 8 Blackf. 292.

The note in suit was primarily payable in Beasley's work. The only remaining question is, whether, since the mill-race was not completed, Persons was liable for the value of what had been done by Beasley. It has been often held by this Court, that he who is benefited by the labor or property of another must answer for it on an implied assumpsit. 7 Blackf. 599. In Coe v. Smith, administrator, 4 Ind. R. 79, the authorities were collected and reviewed. There is a case in the Massachusetts reports very similar in many respects to this. Fuller agreed to work for Brown, and give him four weeks' notice before quitting his employ. He rendered valuable services, and left without notice, in consequence of sickness. It was held that Fuller was entitled to a reasonable compensation for the services he had rendered. Fuller v. Brown, 11 Metc. 440.

The case in 21 Verm. 301, to which counsel for Persons have referred us, is in conflict with the repeated adjudications of this Court, and with the numerous authorities cited to sustain them. We think the law clearly with McKibben.

May Term, 1854.

BUCHANAN

V.

PORT.

Per Curiam.-The judgment is affirmed, with 5 per cent. damages and costs.

J. P. Usher, for the plaintiff.

S. B. Gookins, for the defendant.

Monday,
June 12.

BUCHANAN V. PORT.

Nil debet can not be pleaded to a suit on the judgment of a court of another state.

It was not requisite to the validity of a pleading in denial of the execution of a written instrument, under the R. S. 1843, that it should be verified by oath. Such a pleading, when not thus verified, did not impose upon the adverse party the proof of the execution of the instrument.

Debt upon a judgment rendered in Pennsylvania. Plea, that the defendant was not, at the commencement of the suit in which the recovery was had, in said state, nor had he been there at any time since; that he never entered his appearance to said action, nor authorized any person to appear on his behalf; and that all the proceedings, &c., were had without any notice to him, and without his knowledge, &c. Replication, that said judgment was not recovered against the defendant without his knowledge and without notice to him, in manner and form as in said plea alleged, &c. Special demurrer assigning, 1. That the replication did not traverse or avoid the plea; 2. That it was argumentative; 3. That it left material parts of the plea unanswered. Held, that the replication was sufficient.

The granting of an order for a change of venue did not, under the R. S. 1843, divest the Court granting it, of jurisdiction of the cause; but the cause might be reinstated on the docket, if the expenses incident to the removal were not paid.

ERROR to the Cass Circuit Court.

DAVISON, J.-Debt by Port against Buchanan. The declaration contains three counts, each upon a judgment of the Court of Common Pleas of Huntington county, Pennsylvania. Demurrers were sustained to the first and second counts. To the third the defendant below pleaded six pleas. The first, second and third led to issues of fact. The fourth, fifth and sixth are as follows:

Fourth. That after the supposed recovery, Port executed to the defendant a certain release, under his seal, whereby he released to the defendant all demands, &c.,

1854.

BUCHANAN

V.

PORT.

which release the defendant hath lost, and can not produce May Term, the same, &c. Fifth. That the defendant was not, at the time of the commencement of the suit in which said recovery was had, in the state of Pennsylvania; nor has he been there at any time since; that he never entered his appearance to said action, nor did he authorize any person to appear on his behalf; and that all the proceedings in said Court relative to the commencement and pendency of said suit, and the recovery therein, were had without any notice whatever to him, and without his knowledge, &c.

Sixth.

That the defendant does not owe the said sum of money, in manner and form as alleged, &c.

Port replied to the fourth and fifth pleas, and to the sixth he filed a general demurrer. This demurrer was correctly sustained. It has been held, that "nil debet can not be pleaded to a suit on the judgment of the Court of another state." Davis v. Lane, 2 Ind. 548. That case is fully supported by authority, and is decisive of the point under consideration. Mills v. Duryee, 7 Cranch 481.Hampton v. Mc Connel, 3 Wheat. 234.

The replication to the fourth plea avers, that Port did not execute his release to the defendant, whereby he released him of all demands, &c. The defendant demurred specially to this replication, and for cause assigned, that it was not sworn to. The demurrer was overruled. The statute which requires a replication to be verified by oath, when it denies the execution of a release, does not render such replication invalid because it is not sworn to. It may be well pleaded without oath; though it would, when so pleaded, excuse proof of the execution of the release. R. S. 1843, c. 40, s. 216.-4 Blackf. 417.-1 McLean 414. The replication to the fourth plea is, therefore, not demurrable. The following is the replication to the fifth plea:

And the plaintiff comes, &c., and says, precludi non, because he says (protesting the appearance to said suit) that said judgment was not recovered against the defendant without his knowledge and without notice to him, in manner and form as in said plea alleged, &c.