The appellants contend that the suit was not in the wholo nor in part brought upon this note, and that it is not within the provision of the art. 741, Hartley’s Digest.
That article provides that when any petition, answer, or pleading shall be founded in whole or in part on any instrument or note in writing charged to have been executed by the other party, or by his authority, and not alleged therein to b'o lost or destroyed, such instrument shall be received as evidence, without the necessity of proving its execution, unless its execution is denied on oath. This law, we believe, was adapted to our practice, and did not have anyother system in view. According to the common-law practice each different note could, in general, form the basis of a separate count, and each count ■would stand independent of the others. Under that practice, a note not specially counted on might well be said not to be the foundation of the action in whole or in part. But according to our practice our actions are founded on the circumstances alleged in the petition. The note being set out in the petition, the petition is in part founded on it, and brings it fairly within the statute, and the court below did not err in admitting it to bo read without proof of the execution. The judgment is affirmed.
Judgment affirmed.