2 Ind. 177 | Ind. | 1850
This was an action, of assumpsit in which Watson was plaintiff and Dole défendant. The declaration contains four counts. The first three counts are on the indorsement of a promissory note. The fourth count requires no further notice, as it gives rise to no question in the cause.
The first count alleges that a note was given, on the 7th of November, 1835, by one John C. Hurd to the defendant, Dole, for the payment of 1,500 dollars in one year from the 1st of January then next; which note was, on the 23d of July, 1836, assigned by the payee to the plaintiff, and was also, on the 25th of October, 1836, assigned by the plaintiff to one Warren; that the maker of the note died on the 1st of May, 1836, and one Ann Hurd administered on his estate on the 24th of May, 1836; that, on the 16th of June, 1837, the administratrix married one Clarke; that Warren, on the 9th of February, 1838, sued the administratrix and her husband on the note, and, on the 23d of February, 1838, recovered judgment in the suit; that a fieri facias was issued, on the 23d of October, 1839, on the judgment, and was returned on the next day, that no goods or chattels could be found whereon to levy, (meaning thereby that there were no goods or chattels, lands or tenements, on which to levy). This count also alleges that Hurd's estate, at the time of his death, was wholly and notoriously insolvent, and unable to pay the demands against it; that no goods and chattels had, at any time, come to the hands of said administrators by which they could pay the note; and that the note had been returned to the plaintiff, who had been obliged to pay the same to Warren. By means whereof the defendant became liable to the plaintiff, &c.
The second count is similar to the first, except that it does not allege any suit to have been commenced against the administrators on the note.
The third count, which describes the note and assignments as the other counts do, states that the maker, Hurd, when he gave the note, executed a mortgage on certain
Plea, the general issue. There is also a special plea, but it occasioned no question not involved in the general issue.
The cause was tried by the Court, and judgment rendered for the plaintiff.
The second count does not allege that the note had been sued on; but it relies on the alleged insolvency of Hurd’s estate, as an excuse for not suing.
The other counts allege suits to have been brought on the note; and they aver' also the insolvency of Hurd’s ©fcS"fc£i/i>6*
The first count, in undertaking to show due diligence,
The third count, in attempting to show due diligence, does not allege the filing of any claim in the clerk’s office of the Probate Court. No suit appears to have been brought on the note until nearly two years after the letters of administration were granted; and it is not averred that any execution on the judgment in that suit was ever taken out. It is alleged that, for part of the judgment in that suit, a judgment was recovered against the administrators for waste, but when the suit for waste was commenced, and in what year the judgment in such suit was recovered, we are not informed. A case of due diligence, therefore, is not made out in the third count.
The record contains all the evidence; and unless the plaintiff sustained the allegations in his declaration of insolvency by showing that the maker of the note left no property at all, except the mortgaged premises, that the law could reach, for the payment of any debt, he cannot recover. Hardesty v. Kinworthy, 8 Blackf. 304.
The only evidence as to there being no personal property, is that given by Mrs. Clarke, the administratrix. All she says on the subject is, that she had paid all the debts against the estate except the note now in question; that she had never converted any real estate into assets; and that the intestate died seized of the real estate described in the mortgage; and that before the foreclosure of the mortgage, she received for rent of the mortgaged premises 250 dollars. That evidence, instead of showing that • the intestate left no personal property that the law could reach for the payment of any debt, is altogether the other way.
Whether the intestate left any real' estate, other than the mortgaged premises, we are not informed. No attempt appears to have been made to prove that there was no such real estate.
The judgment is reversed with costs. Cause remanded for another trial. Costs here.