This was a suit instituted by appellees against appellant, at the February term, A. D. 1861, of the Bond County Court, in assumpsit, for work and labor, care and diligence and attention, performed by John E. Mullett, deceased, in his lifetime. Declaration, one common count.

Appellant pleaded the general issue, and statute of limitations.

Verdict for appellees for $245.

Upon the trial, Samuel Mullett, being sworn for the plaintiff, stated, that John E. Mullett, deceased, worked himself, with his team, on the Mississippi and Atlantic Railroad, for defendant, 108 days. Said work was worth §2.15 per day. Said work was commenced sometime in the month of June, 1854, and ended in the month of November or December of the same year. On cross-examination, witness states, that he did not keep account of time, but was present when John E. Mullett and defendant agreed upon the amount of work, about the time they quit work; and defendant offered to give John E. Mullett $200 for his work. Witness states, it was for the work; he did not know of any partnership; witness worked with them on the road.

Benedict Mullett, for the plaintiff, testified, that John E. Mullett, deceased, between the months of June and December, 1854, worked with his team 108 days for defendant; that said work was worth $2.15 per day; that it was done on the Mississippi and Atlantic Railroad; that he knew of no partnership between John E. Mullett and defendant in relation to the work; that the work was done on two sections of said road, in Madison county, which defendant had taken to grade; that he and preceding witness both worked on said road, at said time, with John E. Mullett, deceased.

Gaspar Britt, for the plaintiff, testified, that shortly after the death of John -E. Mullett, which occurred in the fall of 1858, (the said John E. Mullett having been his son-in-law, and the administratrix being his daughter), he conversed with the defendant about this account; that he then had John E. Mullett’s memorandum book, containing the account of their work on railroad, amounting to ninety-eight days, which he showed defendant; that defendant said that John worked more days than that; that he could not pay it then, for he had no money; that he was going to have some parts of the work measured, and expected to get some money soon, and then he would settle the account. On cross-examination, witness states, that defendant, in the conversation, claimed that there was a partnership arrangement between him «and John E. Mullett; that defendant spoke of measuring the work, and

also about a suit for the railroad work, but did not know whether the suit was commenced at that time; that defendant said, when he got the money for the work he would settle.

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