2 Ind. 641 | Ind. | 1851
THIS was action of debt brought by Adamson against Hunt, in the Court below, upon the joint promissory note of B. and M. Hunt. The declaration shows that an action had previously been brought upon said note against both the Hunts ; that the writ was returned not found as to B. Hunt and served upon M. Hunt; and that judgment was rendered against him, &c. The statute authorizes a plaintiff, upon a return of not found being suggested upon the record, to proceed to judgment against those served, and at any time to bring suit against those not served. R. S. 675, s. 31. Plea, the general issue. Judgment for the plaintiff.
We think the plaintiff was bound to prove, under the issue, the matter of excuse alleged in the declaration for suing alone one of the makers of the joint note. The production of the note, without other evidence, was insufficient.
The judgment is reversed, and the proceedings back to the plea set aside, with costs. Cause remanded for further proceedings. Costs here.
