Davison, J.
Crawford was the plaintiff below, and Patterson the defendant. The complaint alleges that one William Armstrong worked for the defendant, at his request, from June 7, 1853, till October 16,1854, for which he, defendant, was to pay him, Armstrong, what his work was reasonably worth; that said work was worth 350 dollars, which is wholly unpaid, and that Armstrong, on, &c., assigned said demand, by writing (a copy of which is filed, &c.), to the plaintiff.
Defendant’s answer contains three paragraphs—
1. A general denial.
2. That Armstrong, on the 3d of June, 1853, was, by the judgment of the Posey Court of Common Pleas, convicted of grand larceny, and. sentenced to an imprisonment at hard labor in the state prison, for the term of five years; [242]*242and that in pursuance of said judgment, he was imprisoned in said prison, in the custody and under the exclusive control of David W. Miller, then and ever since the warden thereof, who compelled him to do work and labor as a convict, conformably to the rules established for the government of the prison, till the 24th of November, 1854, when, upon a writ of habeas corpus, he was discharged from prison. It is averred that during the imprisonment, the defendant exercised no control over Armstrong; that the work performed by him when so imprisoned is the identical work charged, &c., and that defendant never agreed to pay therefor, &c.
By the third defense, the defendant reiterates the facts stated in the second, files a certified transcript of the judgment of conviction in the Posey Court of Common Pleas, and submits whether any right of action growing out of the work performed by Armstrong, as set forth in the second defense, can be assigned to the plaintiff so as to vest in him a right to bring this suit.
Demurrers to the second and third paragraphs were sustained. The issues made by the general denial were submitted to the Court, who found for the plaintiff 300 dollars ; and the Court, having refused a new trial, rendered judgment, &c.
During the trial, the plaintiff offered in evidence the assignment referred to in the complaint. It reads thus:
“We, the subscribers, severally assign and transfer to Randall Crawford all our several claims against Samuel H. Patterson and David W. Miller, or either of them, for labor severally done by us for them, or either of them, at the penitentiary at Jeffersonville; and we severally appoint said Crawford our attorney, for us severally to demand of said Patterson and Miller, or either of them, whatever sums may be due us severally, for such labor, and to compromise said demands, or any part of them, and to sue for the same in our several names as our attorney shall judge best. [Signed] William Armstrong, Henry Davis, John Bu/rk, Joseph Nikerson, John Glavin, Frederick A. NulterA
The introduction of this instrument was resisted, upon [243]*243the ground that there was no proof of its execution; but the Court admitted it, without such proof, and the defendant excepted.
Section 80 of the practice act says:
“ Where a writing purporting to have been executed by one of the parties, is the foundation of, or referred to in, any pleading, it may be read in evidence on the trial of the cause against such party, without proving its execution, unless its execution be denied by affidavit before the commencement of the trial, or unless denied by a pleading under oath.” 2 R. S. p. 44.
This provision is cited in argument; but it does not apply to the admitted evidence, because the writing does not purport to have been executed by one of the parties. Riser v. Snoddy, 7 Ind. R. 442.
There is, however, another section of the same act, which provides that “the laws and usages of this state relative to pleadings and practice in civil actions, <&c., not inconsistent herewith, and as far as the same may operate in aid hereof, or supply an omitted case, are hereby 'continued in force.” 2 R. S. p. 224, § 802. This, it is said, continues in force § 216 of ch. 40 of the revision of 1843, which declares “that any pleading denying or requiring proof of the execution or assignment of any instrument of waiting which is the foundation of the suit, and is specially set forth in the declaration, shall not impose the necessity of such proof, unless verified by oath.” The section thus recited is not in conflict with any provision of the new code, but may well operate in aid of the existing rules of practice. Section 802, should, in our opinion, be so construed as to continue in force § 216, and that being done, the rule of practice so continued, fairly applies to the case at bar, and sustains the admission of the written assignment, without proof of its execution.
As we have seen, the complaint avers that Armstrong had done work for the defendant at his request, and as the Court found in his favor upon the issues made by the first defense, we must presume, the evidence not being in the record, that the averments in the complaint were fully [244]*244proved. Hence, the only remaining questions in the case, relate to the action of the Court in sustaining the demurrers.
The material facts alleged in the second defense are, that Armstrong was sentenced by the Posey Court of Common Pleas; that he was imprisoned in the custody of Miller, the warden of the state prison, who compelled him to do the -work charged, according to the rules of the prison; and that during his imprisonment the defendant exercised no control over him. As the Court of Common Pleas had no jurisdiction of the alleged felony (see Spencer v. The State, 5 Ind. R. 41), the judgment of that Court was, of course, void on its face, and can have no influence on the investigation of this cause, other than to show the manner in which Armstrong was made to work; and whether Miller would be liable for the false imprisonment is a question not before us. Evidently, he could not be held liable- for the work and labor charged in the complaint, because it was not performed for him. But it is said that the defendant exercised no control over Armstrong. Still he received the benefit of his labor; and it seems to us that the mere fact that Miller controlled the action of the supposed convict, while laboring for the defendant, is not an available ground of defense. It is conceded, as a general rule, that “where labor is performed for the benefit of a party, without an express contract, if he knows it, and tacitly assents to it, he will be liable on an implied contract to pay a reasonable compensation therefor.” This exposition seems to be correct. Does it apply to the case at bar ? That the defendant knew of the labor charged in the complaint, and assented to it, is a proposition which the facts appearing in the record will not allow us to doubt; and for aught that appears in the defense in question, he did know that Armstrong had not been legally convicted. The defendant, being lessee of the state prison, and entitled by law to the labor of all those legally imprisoned and of no others, had a right to know, and was, in our opinion, bound to know who were legally in the warden’s custody. But there is really nothing in the second [245]
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Davison, J.
Crawford was the plaintiff below, and Patterson the defendant. The complaint alleges that one William Armstrong worked for the defendant, at his request, from June 7, 1853, till October 16,1854, for which he, defendant, was to pay him, Armstrong, what his work was reasonably worth; that said work was worth 350 dollars, which is wholly unpaid, and that Armstrong, on, &c., assigned said demand, by writing (a copy of which is filed, &c.), to the plaintiff.
Defendant’s answer contains three paragraphs—
1. A general denial.
2. That Armstrong, on the 3d of June, 1853, was, by the judgment of the Posey Court of Common Pleas, convicted of grand larceny, and. sentenced to an imprisonment at hard labor in the state prison, for the term of five years; [242]*242and that in pursuance of said judgment, he was imprisoned in said prison, in the custody and under the exclusive control of David W. Miller, then and ever since the warden thereof, who compelled him to do work and labor as a convict, conformably to the rules established for the government of the prison, till the 24th of November, 1854, when, upon a writ of habeas corpus, he was discharged from prison. It is averred that during the imprisonment, the defendant exercised no control over Armstrong; that the work performed by him when so imprisoned is the identical work charged, &c., and that defendant never agreed to pay therefor, &c.
By the third defense, the defendant reiterates the facts stated in the second, files a certified transcript of the judgment of conviction in the Posey Court of Common Pleas, and submits whether any right of action growing out of the work performed by Armstrong, as set forth in the second defense, can be assigned to the plaintiff so as to vest in him a right to bring this suit.
Demurrers to the second and third paragraphs were sustained. The issues made by the general denial were submitted to the Court, who found for the plaintiff 300 dollars ; and the Court, having refused a new trial, rendered judgment, &c.
During the trial, the plaintiff offered in evidence the assignment referred to in the complaint. It reads thus:
“We, the subscribers, severally assign and transfer to Randall Crawford all our several claims against Samuel H. Patterson and David W. Miller, or either of them, for labor severally done by us for them, or either of them, at the penitentiary at Jeffersonville; and we severally appoint said Crawford our attorney, for us severally to demand of said Patterson and Miller, or either of them, whatever sums may be due us severally, for such labor, and to compromise said demands, or any part of them, and to sue for the same in our several names as our attorney shall judge best. [Signed] William Armstrong, Henry Davis, John Bu/rk, Joseph Nikerson, John Glavin, Frederick A. NulterA
The introduction of this instrument was resisted, upon [243]*243the ground that there was no proof of its execution; but the Court admitted it, without such proof, and the defendant excepted.
Section 80 of the practice act says:
“ Where a writing purporting to have been executed by one of the parties, is the foundation of, or referred to in, any pleading, it may be read in evidence on the trial of the cause against such party, without proving its execution, unless its execution be denied by affidavit before the commencement of the trial, or unless denied by a pleading under oath.” 2 R. S. p. 44.
This provision is cited in argument; but it does not apply to the admitted evidence, because the writing does not purport to have been executed by one of the parties. Riser v. Snoddy, 7 Ind. R. 442.
There is, however, another section of the same act, which provides that “the laws and usages of this state relative to pleadings and practice in civil actions, <&c., not inconsistent herewith, and as far as the same may operate in aid hereof, or supply an omitted case, are hereby 'continued in force.” 2 R. S. p. 224, § 802. This, it is said, continues in force § 216 of ch. 40 of the revision of 1843, which declares “that any pleading denying or requiring proof of the execution or assignment of any instrument of waiting which is the foundation of the suit, and is specially set forth in the declaration, shall not impose the necessity of such proof, unless verified by oath.” The section thus recited is not in conflict with any provision of the new code, but may well operate in aid of the existing rules of practice. Section 802, should, in our opinion, be so construed as to continue in force § 216, and that being done, the rule of practice so continued, fairly applies to the case at bar, and sustains the admission of the written assignment, without proof of its execution.
As we have seen, the complaint avers that Armstrong had done work for the defendant at his request, and as the Court found in his favor upon the issues made by the first defense, we must presume, the evidence not being in the record, that the averments in the complaint were fully [244]*244proved. Hence, the only remaining questions in the case, relate to the action of the Court in sustaining the demurrers.
The material facts alleged in the second defense are, that Armstrong was sentenced by the Posey Court of Common Pleas; that he was imprisoned in the custody of Miller, the warden of the state prison, who compelled him to do the -work charged, according to the rules of the prison; and that during his imprisonment the defendant exercised no control over him. As the Court of Common Pleas had no jurisdiction of the alleged felony (see Spencer v. The State, 5 Ind. R. 41), the judgment of that Court was, of course, void on its face, and can have no influence on the investigation of this cause, other than to show the manner in which Armstrong was made to work; and whether Miller would be liable for the false imprisonment is a question not before us. Evidently, he could not be held liable- for the work and labor charged in the complaint, because it was not performed for him. But it is said that the defendant exercised no control over Armstrong. Still he received the benefit of his labor; and it seems to us that the mere fact that Miller controlled the action of the supposed convict, while laboring for the defendant, is not an available ground of defense. It is conceded, as a general rule, that “where labor is performed for the benefit of a party, without an express contract, if he knows it, and tacitly assents to it, he will be liable on an implied contract to pay a reasonable compensation therefor.” This exposition seems to be correct. Does it apply to the case at bar ? That the defendant knew of the labor charged in the complaint, and assented to it, is a proposition which the facts appearing in the record will not allow us to doubt; and for aught that appears in the defense in question, he did know that Armstrong had not been legally convicted. The defendant, being lessee of the state prison, and entitled by law to the labor of all those legally imprisoned and of no others, had a right to know, and was, in our opinion, bound to know who were legally in the warden’s custody. But there is really nothing in the second [245]*245defense inconsistent with the fact of the work having been done for the defendant at his request, and with his knowledge of all the circumstances.
The third defense assumes that, though the defendant may be liable to Armstrong, by reason of the false imprisonment, still his right of action could not be assigned to the plaintiff. The code provides that “ every action must be prosecuted in the name of the real party in interest; but this section shall not be deemed to authorize the assignment of a thing in action not arising out of contract.” 2 ft. S. p. 27, § 4. This section does not authorize, nor does it forbid, the assignment of a thing not arising out of contract. It adopts the equity rule, which required every action to be prosecuted in the name of the real party in interest, and simply declares that that section shall not^be deemed to authorize such assignment. An assignees lit€^5 precisely the same interest in the assignment of eve%y ¡íjjecies of demand, either at law or equity, as he didjfcefpjrq the new code. Hence, a demand capable of assignment before the code, so as to invest the assignee with ^íe^re^ interest, is such a demand as will now pass by assignment, so as to give the assignee a right of action. Mere sonal torts, such as slander, assault and battery, and the like, which die with the party, and do not survive to his personal representative, are not assignable. Comegys v. Vhsse, 1 Pet. 213. But in view of a statutory rule of procedure, identical with the one just recited, it has been held that torts for the taking and conversion of personal property, and generally such a right of action for a tort as would survive to the personal representative, may be assigned, so as to pass an interest to the assignee which he can assert in his own name in a civil action, as he formerly might- in the name of the assignor, at law. Robinson v. Weeks, 6 How. Pr. 161.—Hodgman v. The Western Railroad Corporation, 7 id. 493.—Van Santv. Pl. 108, et seq.
In the case before us, the false imprisonment, in itself, is a mere personal tort, which would die with the party. Considered alone, it would result in injury to the prisoner, and not in any effective benefit to the party who held him [246]*246in custody. But here, there is seventeen months’ labor actually performed in the service of the defendant, and of which he has received the proceeds. For this, in our opinion, a right of action would have survived to the assignor’s personal representatives.
W. T. Otto and J. S. Davis, for the appellant (1).
B.. Crawford, in person (2).
The appellee, however, assumes in argument that Armstrong had the right to waive the tort and sue in form ex contractu; and, the tort being waived, the transaction became one of contract, for all purposes, and, consequently, was assignable as other contracts. This position is. supported by authority, and seems to be correct. Brewer v. Sparrow, 14 E. C. L. 50.—Smith v. Hodson, 4 T. R. 211.— Smith v. Cologan, 2 id. 188, note (a).—Ferguson v. Carrington, 17 E. C. L. 330.—Lucas v. Godwin, 32 id. 309. The authorities to which we have referred, when applied to this case, induce the conclusion that the assignment before us, had it been made before the code, would have invested the assignee with the real interest in the demand in suit, and authorized him to sue for its recovery in the name of the assignor. And being thus the real party in interest, § 4, which we have quoted, does not forbid, but plainly allows, the assignee to sue in his own name.
It is insisted that Miller was a necessary party, and that the proceedings not showing that he was made a party, are, for that reason, erroneous. No objection relative to the want of parties appears to have been made in the Circuit Court. It follows that the alleged error is not available in this Court.
Per Cwriam.
The judgment is affirmed with 5 per cent, damages and costs.