ered on the day on which it bore date, which did not by any means follow, such execution and tender were not within a reasonable time, since the ordinary time for the preparation for sowing wheat that season had already expired.

As we construe the lease, the execution of a note for the rent was not a condition precedent to Personett's right to a partial possession of the farm for the purpose of sowing wheat. For that purpose he was to have possession "at once," while all the other agreements and stipulations of the lease were of a character which required some intervening time for their performance. There was a reason for not requiring the execution of the note to be a condition precedent to the right to sow wheat, as Andis did not bind himself to give full possession of the farm until the twenty-fifth day of December following, and as the sowing of a part of the farm in wheat in the mean time, by the labor and teams of Personett, was not likely to entail any loss upon Andis. Andis evidently had until the twenty-fifth day of December, 1884, in which to complete the repairs which he agreed to make, and the inference is plain that all the provisions of the lease were not to go into full effect until that day. This inference leads us to hold that the execution of a note for the rent by Personett was only a condition precedent to his right to full possession of the farm on said twenty-fifth day of December, 1884, and that he was not absolutely required to execute such a note previous to that time. As has been seen, the note was not to begin to bear interest until that day, and hence it was not to become a profitable security until the time fixed for interest to begin. This fact strengthens our conclusion as to the length of time allowed to Personett in which to execute the note.

The further inference from the averments of the complaint is that the note was executed and tendered previous to the time at which the complaint was filed, and that we regard that as having been in ample time to prevent a forfeiture of any of Personett's rights to possession under the lease.

It is further urged that the possession of the lease which obligated Personett to procure a "good and approved freehold surety" to sign the note with him conferred upon Andis the right, as he might see fit, to approve or disapprove any person who may have been offered as surety under that provision; and that hence Andis had the right to reject any note tendered by Personett on which the surety was, for any cause, unacceptable to him. We are unable to agree to such a construction of the lease. The word "approved" has several shades of meaning. One of the definitions which Webster gives of it is, "To make or show to be worthy of approbation or acceptance,-to commend;" and it is in that sense we construe the word as it was used in connection with the surety which was to be furnished by Personett. The phraseology used in the provision in question was equivalent to saying that Personett should execute a note with "good freehold surety, worthy of approval." In view of the nature of the transaction as evinced by the entire lease, any less liberal construction than this would scarcely seem reasonable, and might have been made to work great injustice to Personett. We consequently see no objection to the substantial sufficiency of the complaint.

At the trial the circuit court instructed the jury that whether the note was tendered within a reasonable time was a question of fact for their determination, under all the circumstances of the case in evidence before them; and it is still further urged that the circuit court erred in so instructing the jury, upon the ground that such reasonableness of time was a question of law for the court, and hence not one of fact for the jury. But whether this objection to the instruction is or is not well taken, as an abstract proposition, we need not inquire, since the jury must have come to the conclusion that the note was tendered within a reasonable time; and as, for the reason already given, we consider the conclusion thus reached as a correct conclusion, Andis has, in any event, no reason to complain of any material injury as resulting from the

instruction. In such a case a judgment ought not to be reversed on account of an instruction which may have been abstractly erroneous. Roots v. Tyner, 10 Ind. 87; Rollins v. State, 62 Ind. 46; Ricketts v. Harvey, 106 Ind. 564; S. C. 6 N. E. Rep. 325.

Some questions upon the evidence are suggested in argument; but, in response to these objections, the point is made that the bill of exceptions, purporting to contain the evidence, is not properly in the record, and that the evidence is, in legal contemplation, not before us. On the seventh day of November, 1884, 60 days' time was given within which to prepare and file a bill of exceptions in the cause; and the transcript shows that the bill of exceptions, purporting to contain the evidence, was not presented to the judge for his signature until the seventh day of January, 1885, and that it was not filed until the fourteenth day of that month. The bill of exceptions was therefore neither presented to the judge nor filed in time, and hence not a part of the record. Rev. St. 1881, §§ 629, 1849; Corbin v. Ketcham, 87 Ind. 138; La Rose v. Logansport Nat. Bank, 102 Ind. 332; S. C. 1 N. E. Rep. 805; Shulse v. McWilliams, 104 Ind. 512; S. C. 3 N. E. Rep. 243; Robinson v. Anderson, 106 Ind. 152; S. C. 6 N. E. Rep. 12.

The judgment is affirmed, with costs.

(108 Ind. 217)

BLACKER V. DUNBAR.

(Supreme Court of Indiana. November 16, 1886.)

1. ESTOPPEL-PROMISSORY NOTE-MAKER DENYING INTEREST OF PAYEE.

The maker of a promissory note is estopped from denying that the payee thereof is the real party in interest.

2. PROMISSORY NOTES-PLEADING-DEFENSE.

In a suit upon a promissory note an answer which alleges that the note was given for the interest of the plaintiff, as heir, in certain real estate, and that, the estate of the decedent being insufficient to pay debts, the defendant had been compelled to pay the proportion thereof for which plaintiff was liable, in order to protect his title, but which does not allege that defendant had any deed for such real estate, nor that plaintiff had requested such payment, or promised to repay or credit it on the note, is bad on demurrer.

3. PLEADING-ADMITTING CONTRACT AS ALLEGED ADMITS CONSIDERATION.

Where a party, in his reply to an answer, states that he "admits the contract therein alleged," he thereby admits the consideration as alleged; and, such consideration being sufficient, the further averment in the reply, that the contract was without consideration, does not make it good as against a demurrer.

4. APPEAL-UNNECESSARY PLEADING-ERROR IN OVERRULING DEMURRER TO.

Although, in a case appealed from a justice of the peace to the circuit court, no reply is necessary, yet, where a bad reply is filed, error in overruling a demurrer thereto is not harmless.

Appeal from Clinton circuit court.

Suit on promissory note.

F. M. Goldsberry and Palmer & Palmer, for appellant. E. Sparks and Kent & Merritt, for appellee.

Howk, C. J. This suit was commenced by appellee, before a justice of the peace of Clinton county, to recover a balance claimed to be due on a promissory note executed to him by the appellant. The trial of the cause before the justice resulted in a verdict and judgment for the appellee. On appeal to the circuit court of the county additional paragraphs of answer were filed by appellant, and the cause was put at issue. The issues joined were tried by a jury, and a verdict was again returned for appellee, and judgment was rendered accordingly.

Errors are assigned here by appellant, which call in question the rulings of the trial court in sustaining appellee's demurrers to the first and second paragraphs of appellant's answer, and in overruling his demurrer to the second

paragraph of appellee's reply to, the first paragraph of his answer filed in the circuit court. We will consider and decide the question presented by each of these alleged errors in their enumerated order.

1. The first paragraph of appellant's answer was filed before the justice of the peace, and was called a plea in abatement. In this paragraph of his answer appellant alleged that the note in suit did not belong to appellee, and, as appellant verily believed, was being prosecuted by appellee for the use and benefit of his wife, Rebecca Dunbar; that said Rebecca Dunbar was a resident of the state of Iowa, and a non-resident of this state; that appellee paid no consideration whatever to appellant for such note; that the note was executed by appellant to appellee at the date mentioned in his complaint; that there was no consideration whatever moved from appellee therefor; that the consideration of such note was certain real estate then and there belonging to said Rebecca Dunbar; that Rebecca Dunbar held such real estate in her own separate right, and sold and conveyed the same to appellant, which was the only consideration for the note in suit; that Rebecca Dunbar, as appellant was informed and verily believed, was the real owner of such note, and the real party in interest, for whom this action was being prosecuted; that appellee had no money interest in, or right or title to, such note, and was not the real party in interest, and that appellant had a good, substantial, lawful, and equitable defense to the note in suit, if such note was being prosecuted for the use and in the name of Rebecca Dunbar, who appellant believed was the real party in interest, and the party to whom such note rightfully belonged; that appellant verily believed that this suit was being prosecuted in the name of Simon Dunbar for the sole purpose, and no other, to deprive the appellant of his said defense to this action, and the note sued upon; that appellant could not avail himself of his said defense to the note in suit if the action were prosecuted in the name of appellee; that appellee took such note in his own name, without any right, and had no legal or equitable title to or interest in the same. Wherefore, appellant prayed that, on account of the foregoing facts, matters, and things, this action should be abated, and that he have judgment for his costs, and all other proper relief.

It is claimed by appellant's counsel that the trial court erred in sustaining appellee's demurrer to the foregoing paragraph of answer. Counsel concede, as we understand them, that the facts stated are not sufficient to constitute a good plea in abatement, but they insist that these facts constituted a good answer in bar of appellee's cause of action. It is true, as counsel claim, that the name given a paragraph of answer or its prayer for relief does not determine its character or sufficiency. But we think there was no available error in sustaining appellee's demurrer to the first paragraph of answer, whether it be regarded as a plea in abatement or an answer in bar. Appellee is the payee of the note in suit, and in such case it has been held by this court that the maker of such note is estopped from denying that the payee thereof is the real party in interest. French v. Blanchard, 16 Ind. 143; Rogers v. Place, 29 Ind. 577; Wells v. Sutton, 85 Ind. 70. But whether appellant was thus estopped or not, it is very clear, we think, that the first paragraph of his answer did not show, by its averments of fact, that he had any valid or sufficient defense to the note in suit. In the most positive terms appellant stated that he had "a good, substantial, lawful, and equitable defense" to the note sued upon; but he has failed to state, in this paragraph of answer, what such defense was, or why, if he had such defense, he could not avail himself of it in this action. The note in suit was not payable at a bank in this state, and was not governed by the law-merchant; and if, as we may suppose, the defense upon which appellant relied was a partial failure of the consideration of such note, we know of no reason why, upon a proper showing of facts, he might not have availed ' himself of such defense as against the appellee who was cognizant of all the facts. In any event, it is clear to our minds that no available error was com

mitted by the court below in sustaining appellee's demurrer to the first paragraph of appellant's answer.

In the second paragraph of his answer filed in the circuit court, appellant admitted his execution of the note sued upon, and his payments credited thereon, but he alleged that such note was executed for the undivided oneeighth interest of Rebecca Dunbar in certain described real estate, in Clinton county, Indiana, owned by William Blacker, deceased; that said Rebecca was the daughter of said William, and, as such, inherited such interest in said real estate; that, at the date of the note in suit, appellee was, and since had been, the husband of said Rebecca, and, as her husband and agent, sold to appellant her said interest in such real estate, and in consideration therefor took the note in suit in his own name; that said real estate was liable for the excess of the indebtedness of such decedent's estate over and above what the personalty of such estate would pay; that the heirs of such estate were liable for such indebtedness to the extent of their inheritance therefrom; that the indebtedness of such estate, not paid by its personalty, amounted to the sum of $1,316.67; that the one-eighth part of such sum, for which said Rebecca's interest in such real estate was liable, was $164.68; that said Rebecca was then and since a non-resident of this state, and had no property except her interest in such real estate, which was sold to appellant; and that, after appellant purchased her said interest in such real estate, he was compelled to pay such sum of $164.68 for said Rebecca to protect his said title so procured from her. Wherefore appellant said that he had paid all of the note in suit that was justly due; that such sum, by him so paid on the indebtedness of such decedent's estate, ought to be set off against any sum that might appear to be due on such note; and he demanded judgment for his costs, and all proper relief.

We are of opinion that the trial court did not err in sustaining appellee's demurrer to the foregoing paragraph of answer. Appellant has stated no facts therein which show, or tend to show, that the appellee or his wife, Rebecca, became and was indebted to him in such sum of $164.68, or in any other amount, for or on account of the money he was compelled to pay, as he alleged, on the indebtedness of the estate of William Blacker, deceased, in order to protect his title to the interest in such decedent's lands procured by him from said Rebecca. It was not alleged in such paragraph of answer that the appellee and his wife had warranted the title to her interest in such lands, or, indeed, that they had ever conveyed such interest to the appellant by deed, with or without covenants of warranty. Nor was it alleged in such paragraph that the appellee and his wife, Rebecca, or either of them, had ever requested the appellant to pay her share or proportionate part of the indebtedness of such decedent's estate in excess of what the personalty thereof would pay, or that they, or either of them, had ever agreed or promised to repay him the amount he paid, as alleged, as her part of such indebtedness, or to give him credit for such amount on the note in suit. This paragraph of answer was hopelessly bad, we think, whether it be regarded as a plea in bar, or as an answer by way of set-off.

In the first paragraph of his answer filed in the circuit court, appellant admitted his execution of the note in suit, and the payments credited thereon, as stated in appellee's complaint; but he averred that, before the execution of such note, Rebecca Dunbar, then and since the wife of appellee, was the owner of an undivided one-eighth interest in certain real estate in Clinton county, Indiana, having inherited such interest from her father, William Blacker, deceased; that at the date of the note in suit all the heirs of such decedent believed that his personal property would pay the debts of his estate, and leave his lands unincumbered thereby; that appellee, as the agent of his wife, Rebecca Dunbar, proposed to sell her interest in such real estate to the appellant for the sum of $750; that appellant then and there purchased her said interest in such real estate, for the sum aforesaid, upon the agree

ment that appellee would stand good to appellant for the one-eighth of the indebtedness of such decedent's estate, which would have to be paid to save such real estate from sale for such indebtedness; that the note in suit was executed in consideration of such sale, and for no other or different consideration; that appellee and his wife, Rebecca, conveyed her said interest in such lands to appellant, who afterwards, on January 25, 1884, had to pay judgments in the Clinton circuit court, which were debts against such decedent's estate, to protect the title to such real estate, describing and giving the amount of each of such judgments, all of which amounted in the aggregate to the sum of $1,316.67; that the one-eighth part of such sum was $164.58; and so the appellant averred that the consideration of the note in suit had failed to the extent of such sum of $164.58, and that he had fully paid all the balance of such note before the commencement of this suit. In the second paragraph of his reply to the foregoing paragraph of answer the appellee said that he admitted the contract therein alleged, but he averred that such contract was made without any consideration whatever.

It was error, we think, to overrule appellant's demurrer to the foregoing reply. When the appellee admitted his contract with appellant as the latter stated such contract in the first paragraph of his answer filed in the circuit court, he admitted also, of necessity, that it was made or executed upon a valuable and sufficient consideration. It is shown by the averments of this paragraph of answer that the appellee, as well as the appellant, was fully informed of the fact that the personal property of William Blacker, deceased, would be insufficient to pay the indebtedness of such decedent's estate; and that, unless the "heirs of the decedent contributed their proportionate parts, respectively, of the excess of such indebtedness over the amount realized from such personal property, the decedent's real estate would necessarily be sold to make assets for the payment of such excess of indebtedness. With this knowledge on his part, appellee proposed to and did sell the interest of his wife, Rebecca, in the decedent's real estate, to the appellant; and as an inducement to such sale, and as a part of the transaction, he agreed that he would stand good to the appellant for the amount to be contributed by his wife, Rebecca, as one of the heirs of the decedent's estate, for the payment of the indebtedness of such estate in excess of the sum realized from the personalty thereof." Upon the faith of this agreement of the appellee he sold the interest of his wife, Rebecca, in the decedent's estate to the appellant, and for the purchase money took the note in suit payable to himself. In his reply the appellee admits his contract or agreement as the appellant has alleged it, and thereby admits, of course, the consideration therefor, which was of the essence of such contract or agreement, precisely as appellant has stated such consideration in his first paragraph of answer. This consideration was amply sufficient to support appellee's contract or agreement; and having admitted it, as he did in his reply, he cannot be heard to claim that his contract or agreement must be supported by some other or different consideration, or that it was without any consideration.

It is true that our statute regulating proceedings in civil cases before justices of the peace provides that "no replication shall in any case be necessary, but any matter which might have been replied to any plea may be proved with the same effect as if so replied." Section 1463, Rev. St. 1881. It is true, also, that, on an appeal to the circuit court in such a case, the cause must "be there tried under the same rules and regulations prescribed for trials before justices." Section 1502, Rev. St. 1881; Hill v. Sleeper, 58 Ind. 221. But it does not follow from these statutory provisions that the error of the trial court, in overruling the demurrer to a bad paragraph of reply, which need not have been pleaded, can be regarded as a harmless error. Certainly the appellee is in no condition to claim, in this case, that the error in question was a harmless error. He filed the bad paragraph of reply, and thereon obtained a rul