Clark v. Spears

Blackford, J.

This was an action of assumpsit brought by Clark, assignee, against Spears, assignor, of a promissory note. The declaration contains two counts.1 Tire first count alleges that the note was made by Taylor and Smith to Marshall, indorsed by the payee to Sumner, by the latter to the defendant, and by the defendant to the plaintiff; that the plaintiff indorsed the note to Mains ; that the latter obtained judgment against the makers of the note at the August term, 1839, of the Tippecanoe Circuit Court, which was the first term after the assignment of the note to the plaintiff; that the said term was not adjourned until the 7th of September, 1839; that, on the 21st of the same month of September, Mains sued out a fieri facias on the judgment, which was returned “No goods or chattels, lands or tenements;” that the. plaintiff received back the note from Mains, &c.; by *303 means whereof, &c. The second count is substantially the same with the first. < R. A. Chandler and D. Mace, for the appellant. Z. Baird, for the appellee.

General demurrer to each of the counts, and judgment for the defendant.

The declaration is objected to on the ground, that the execution was not issued on the judgment against the makers of the note in time. The Court adjourned on the 7th of September, 1839, and the execution issued on the 21st of the same month. This shows, prima facie, sufficient diligence in taking out execution. If the defendant can show that he sustained a loss by the delay in the issuing of the execution, he will have the right to do so. Dorsey v. Madlock et al. 7 Blackf. 113. — Nance v. Dunlavy, Id. 172 . The demurrer should have been overruled.

Per Curiam.

The judgment is reversed with costs. Cause remanded, &c.