Trippe, Judge.
1. Where the right of action is contingent upon the happening of some event or the occurrence of a certain fact, and
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suit is brought thereon alleging that the condition has been satisfied, a plea denying such allegation has no feature of a plea in abatement. It is a plea to the merits. Indeed, there was no necessity for the plea. The burden, by the very terms of the contract, was upon tbe plaintiff to prove as true precisely what the plea denied to be true. The general issue was all that was necessary, so far as the question raised by that plea was involved, and there was no error committed in this point lo tbe injury of the plaintiff.
2. The contract contained in the transfer of tbe judgment, was made in 1862. The homestead assigned to the wife of Rolston was in value greater than tbe amount of that judgment. That homestead was subject to the judgment which was assigned to the plaintiff, the same having been rendered in 1861. The assignor was to be liable only in the event that the defendants in the judgment “proved insolvent.” It was evident, from tbe testimony, that plaintiff could satisfy the judgment out of property which was liable to it. Consequently the verdict is not against the evidence.
Judgment affirmed.