
    Madison Stull v. Samuel Wilcox.
    A plea to a declaration in debt, tbat the defendant11 did not agree to pay said plaintiff said several sums of money, or any part thereof, in manner and form as said plaintiff hath alleged against him,” not having been demurred to, is good after verdict as a plea nil debit.
    
    An unsealed note is not admissible in evidence, under a special count in a declaration in debt, describing the evidence of debt as a writing obligatory.
    Under the common counts, in such a declaration, a promissory note given by the defendant to A, and by him assigned to the plaintiff, by indorsement on the back of the note, proof of the execution and assignment is necessary to admit the note in evidence.
    In an action on a promissory note, the defendant put to one of the witnesses a question in the words: “ State whether you heard S. W., the plaintiff, say anything about the merits of this case ?” This question was not objectionable as too leading.
    ’"‘But where there is nothing in the record to show what the witness was offered to prove, the judgment will not be overruled because of the error in overruling such a question. Unless the witness was called to prove something material to the issue, no one was prejudiced.
    Error to the district court of Hardin county.
    The judgment sought to be reversed was one of the district court affirming a judgment of the Hardin county common pleas, in favor of Wilcox, in an action of debt brought into the court last named by appeal from a justice of the peace.
    The declaration contained, besides the common counts, a special one, of which the following is the substance :
    “For that, whereas the said M. Stull, on the 10th day of April, 1849, at said Hardin county, made his certain writing obligatory, of that date (and now to the court here shown), and then and there delivered the same to E. Eisher, and thereby bound himself to pay the said E. Eisher, or order, $30.00 on the day and year aforesaid, which period has now elapsed; and the said E. Fisher, on the 10th day of June, 1851, indorsed the same to said Samuel Wilcox, whereof the said M. Stull then and there had notice, and then and there; in consideration of the premises, became bound to pay the same to the said Samuel Wilcox; yet,” etc.
    To this declaration the defendant put in the followiug plea:
    And now comes the said M. Stull and defends, etc., and says that ho did not agree to pay said plaintiff said several sums of money, or any part thereof, in manner and form as said plaintiff hath alleged against him, and of this he puts himself upon the country, etc.
    On the trial of the cause in the court of common pleas, the defendant offered in evidence the following note, having first proved its execution by Stull, but without any other proof of its assignment than that appearing on its back:
    “ $30. For value received, I promise to pay E. Fisher, or order, thirty dollars.
    “ April 10, 1849. M. STULL.”
    • The assignment was as follows: “I assign and transfer the within note to Samuel Wilcox, without recourse to me. June 10, 1851. E. Fisher.”
    *To the admission of the note in evidence, the defendant objected, and his objection being overruled, excepted to the opinion of the court.
    This was all the plaintiff’s testimony.
    The defendant called Calvin Snow as a witness, and put to him the following question: “ State whether you have heard Samuel Wilcox, the plaintiff, say anything about the merits of this case?” This question was objected to as leading, and the court sustained the objection, but told defendant’s counsel that they might ask the witness the same question in a form less leading; but defendant’s counsel declined putting any other question touching that matter, and insisted on the question already put. The defendant then excepted.
    The evidence being closed, the defendant requested the court to charge the jury, that the plaintiff could not recover under the declaration on said note, without the proof of the assignment of said note to the plaintiff; but the court instructed the jury that it was for them to say, from the evidence .appearing on the note itself, whether the same had been duly assigned; and if, from that evidence, they were duly satisfied of the fact of the assignment, it was sufficient foi them to find that point in favor of the plaintiff; and "that the plaintiff might prove that point, by the assignment on the' paper itself. The jury having returned a verdict for the plaintiff,, the defendant moved the court to set aside the verdict and grant a new trial and in arrest of judgment, for reasons on file, which motion the court overruled, and defendant excepted.
    To reverse the judgment on this verdict, Stull sued out of the-district court a writ of error, and assigned the following errors:
    1. The court erred in admitting said note in evidence without, any proof of the assignment, and overruling the objection made by defendant to the admission thereof.
    2. The court erred in overruling the question asked of Calvin 'Snow, whether he had heard Samuel Wilcox, the ^plaintiff, say anything about the merits of this case, and refusing to permit said witness to answer said question.
    2. The court erred in instructing the' jury that they could find the assignment duly made from the indorsement, without other' proof.
    4. The court erred in refusing to grant a new trial, since no proof had been offered as to the indorsement on said note, and said plaintiff had not made a case that entitled him to a verdict.
    5. The finding of the jury was against law and evidence, and a new trial ought to have been granted.
    6. The said judgment is in favor of said Samuel Wilcox, when by law of the land it ought to have been in favor of said Madison Stull.
    The district court affirmed the judgment.
    
      W. Lawrence, for plaintiff in error,
    
      W L. Walker, for defendant.
   Thurman, J.

The plea filed in the original action was plainly bad. But it was not demurred to, nor was any motion made to strike'it .from the files. On the contrary, it seems to have been treated as a plea of nil debit. The parties appear to have regarded it as requiring of the plaintiff full proof of his cause of action, and as entitling the defendant tQ any defense available under the general issue. Under these circumstances we have, though not without serious doubts, concluded that it ought not to be treated as a nullity, upon this writ of error. In Falls v. Stickney, 3 Johns 541, the court said: “ If a plea is bad or frivilous, the plaintiff ought either to demur to it, or treat it as a nullity, and enter a default, without any application to the court. Had the plaintiff demurred, the defendant might have obtained leave to amend.” In 1 Chitty’s PI. 522, it is said: “Where a plea, though informal, goes to the substance of the action, as nil debet to debt on bond, the plaintiff should demur, and not sign judgment; and in general, where the defendant *pleads an improper plea, the safer course is to demur, or move the court to set it aside.”

Treating the plea then, for present purposes, as it was treated upon all hands in the court below, as a substantial denial of the plaintiff’s alleged causes of action, we are brought to the question, did the court err in the several rulings complained of?

1. Was it error to hold that an unsealed note was admissible evidence under the special count in the declaration ?

It certainly was. The words “ writing obligatory ” in that count, import an instrument under seal. Speaking of the requisites of a declaration upon a specialty, Chitty says: It must also appear that the contract was under seal, but there are some technical words, such as indenture, deed, or writing obligatory, which of themselves import that the instrument was sealed, and which will suffice.” 1 Chitty's PI. 364. And see, to the same effect, Yan Santwood v. Sand-ford, 12 Johns. 198, and the numerous other authorities cited by the counsel for the plaintiff in error.

2. Was it error to hold that the plaintiff could recover without proof of the execution of the indorsement ?

We have seen that the note sued upon was not evidence under the special count of the declaration. A recovery could therefore be had only upon the common money counts. To recover under these, proof of the execution and indorsement of the note was necessary. Somers v. Harris, 16 Ohio, 262; 2 Greenleaf’s Ev., sec.s 163, 166.

The statute dispensed with this proof only where the note was specially declared upon. Somers v. Harris, supra.

3. Was the question put to the witness, Calvin Snow, properly overruled upon the ground that it was too leading ?

We do not see that it was obnoxious to this objection. It contained no statement of fact that the witness could simply affirm or d eny, n or did it suggest what answer was desired. It merely called his attention to the subject about which he was requested to speak. But while we think the'question was unobjectionable, we would not reverse the judgment ^because it was overruled. For there as nothing in the record to show what the witness was offered to prove. Unless there was an offer to prove by him some matter that was material to the issue, no one was prejudiced by the decision. Judgments are not to be reversed for immaterial errors.

Upon the other grounds, however, that we have noticed, there must be a reversal.  