
    Smallhouse and Others v. Thompson and Another.
    Suit bjr an assignee upon a promissory note. Answer : that the payee of the note had notified defendant, that the alleged assignment to the plaintiff was not valid, and that he must not pay, &c., and asking that the payee be made a party.
    
      Meld, that under 2 R. S., § 23, p. 32, the application to have the payee made a party should have been made upon affidavit, before answer.
    APPEAL from the Allen Circuit Court.
   Hanna, J.

Suit on note. Answer: 1. That the note was given to the appellees in consideration of goods, &c., purchased of O'Conner d Bro., from whom appellees pretended they had the claim by assignment, and that O'Conner had notified defendants that such pretended assignment was not binding, and that they must not pay, &c., and asking that O'Conner be made a defendant; and averring that they are ready to pay, and bring the money into Court. 2. Want of consideration. A demurrer was sustained to the first paragraph of the answer, and issue formed on the second. Trial; finding- for the plaintiffs. Judgment was not entered of record at the term of the finding, but at the next term was ordered to be entered mine pro tunc.

L. M. Ninde and II IE Puckett, for the appellants.

IE II Coombs, for the appellees.

It is now objected that the court erred in sustaining the demurrer, in the finding and judgment for the plaintiff's, and in causing such entry nunc pro tunc.

The statute, 2 R. S., § 23, p. 32, seems to require that a defendant should, by affidavit, before answer, bring into court any one, not a party to the suit, who makes against him a demand for the same cause of action. Here, no affidavit was filed. The answer was not sworn to, if that could be considered a substantial compliance with the statute.

There was no error in sustaining the demurrer. After that ruling, there was nothing before the Court showing that the money was brought into Court. The finding was, therefore, right; and, so far as the record shows, there is no error disclosed in ordering the judgment entered as of the previous term. Hiere are no facts shown, by bill of exceptions, or otherwise, upon which the Court acted; we must therefore presume in favor of that action.

Per Curiam. — The judgment is affirmed, with 5 per cent, damages and costs.  