Arnold v. Sturges

5 Blackf. 256

• Court: Indiana Supreme Court
• Decided: January 7, 1839
• Status: Published

Opinion

Blackford, J.

Debt by the assignee of a promissory note against the maker. Pleas, nil debet, failure of consideration, &c. Issues on the pleas, and verdict for the defendant. Motion for a new trial overruled, and judgment on the verdict.

H. Cooper, for the plaintiff. A. S. White and R. A. Lochwoocl, for the defendant.

It does not appear from the record, which contains all the evidence, that the plaintiff produced at the trial any assignment'of the note to him. It must therefore be considered, that, under the plea of nil debet, the plaintiff did not show any right to recover. The' circumstance, that no affidavit in denial of the assignment is attached to the plea, can make no difference. Whether such -an affidavit was necessary, under the statute, to oblige the. plaintiff to prove the execution of the assignment, is not the question. Supposing it was, still that is no reason- that the assignment should not be produced at the trial.

It is contended, that the admissions in the second plea excused the plaintiff from producing the .assignment. It must be recollected, however, that one plea cannot be used as evidence of any thing which another denies. Wheeler v. Robb, 1 Blackf. 330.—Harington v. Macmorris, 5 Taunt. 228.

The motion for a new trial was correctly overruled.

Per Curiam.

The judgment is affirmed with costs.