25 Ind. 425 | Ind. | 1865
King sued Conn upon an assigned note. Conn answered that, before notice of the assignment to King, he became the owner of certain notes on Rate, King’s assignor, and paid a judgment in favor of Watts, which had been rendered against the defendant as surety for Pate, and he asked that the notes, and the sum>so paid as surety for Pate, should be set off against the note sued on. King replied that Conn purchased the notes setup in his answer after he knew that Pate was dead. A demurrer to this reply was sustained, and King excepted. This is assigned for error.
"We do not see why the death of Pate should deprive the defendant of his right to purchase the notes and offer them as a set-off to the claim against him. He certainly had that right as against the personal representatives of the deceased, and the fact that an assignment had been made of the claim, without his knowledge, did not prevent the defense.
The second error assigned is, that a new trial should have been granted because the finding of the court was contrary to the law and the evidence. It is urged that as King replied to the answer by a general denial, it was necessary for Conn to prove the notes and the record of the judgment on the trial. Copies of the notes and indorsements, and a certified copy of the judgment in favor of Watts were filed with the
This objection is fatal. Even if the fact that the certified copy of the judgment was made a part of the answer is to be held sufficient, still the failure to introduce the notes in evidence, when a denial was replied, requires the reversal of the case.
The judgment is reversed, with costs, and the cause remanded for a new trial.
