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The petition for a rehearing of this ease raises the following questions, viz:
1. Where an attachment is obtained against the property of a defendant at the institution of suit against him on the ground that he is about to sell the same, &c., and the defendant appears personally, or by attorney, and for answer to the attachment branch of the suit, denies generally and specially the truth of the statements in the affidavit, is the answer one in abatement or in bar ?
2. If in abatement, should it be sworn to ?
3. If in abatement and not sworn to, but still not objected to on that ground, before trial, what is the consequence?
We need not decide the first and second questions, because.,
1. If the answer is not one in abatement, there was no error in the trial below.
2. If it is in abatement, there was no error in this case, because the answer was not objected to for want of verification; and an answer in abatement, not sworn to, forms a good issue if it is not objected to for that defect before trial.
Prior to 1843, the following section prescribed the practice in Indiana, upon pleas in abatement and non est factum:
“ Sec. 21. No plea in abatement, plea of non est factum, non-assignment, nor any other plea, replication or other pleadings, *534denying or requiring proof of the execution or assignment of any bond, bill, release, or other instrument of writing, which is the foundation of any suit or defence, and is specially set forth in the declaration, plea or other pleadings, shall be received, unless supported by oath or affirmation. "When such plea or other pleading denies or requires proof of any assignment., the oath or affidavit shall be, that the party has reason to believe, and does believe, that the assignment was not made before the suit was commenced.” Code of 1838 p. 449. And see all our prior codes, to the same effect.
Under this section, prohibiting the reception of pleas not ■sworn to, it is judicially settled that if the plaintiff permits the plea or answer to be received and a trial to be had upon it without objection, the trial is regular, and settles everything that could have been settled if the plea had been sworn to. In short, that such a plea or answer, so received, makes a valid issue.” Hagar v. Mounts, 3 Blackf. 57 S. C.; id. 261; McCormick v. Maxwell, 4 id. 168.
In the code of 1843, the above quoted section was, for the first time, in our State, divided, and a different i*ule prescribed for pleas of non est factum, while the old rule was left, exactly, as to pleas in abatement, &c. We quote the code:
“Sec. 200, [p. 706]. Pleas to the jurisdiction of the Court, and pleas in abatement, and all dilatory pleas which do not involve the merits of the action, shall not be received by any Court, unless the truth thereof be verified by oath or affirmation.”
“Sec. 216, [p. 711]. The plea of non est factum, non-assignment, &c., denying the execution, &c, shall not impose the necessity of such proof, &e., unless verified, &c.”
This section 216 is brought forward in the code of 1852, and an answer under it has not the effect of putting in issue the execution of a written instrument unless the answer be verified. Evans v. The Southern Turnpike Co., 18 Did. 101.
Oscar B. Ilord and D. 8. Major, for the appellants. Thomas A. Hendricks and McDonald Boache, for the appellee.Section 200, above quoted, is not brought forward in the code of 1852; but it is contended that it is an omission which the Court should supply.
This may be so, and we incline to think it is; but when we bring forward the section, we bring with it its judicial construction, which, as has been shown, is, that if the answer is received and acted upon on the trial, without verification, the verification is waived by the party for whose benefit it is required, and the issue formed is good; and this accords both in letter and spirit with all our practice under the new code.
The petition must be overruled.