The appellee, who was the plaintiff, sued -Jones, before a justice of the peace, alleging in his complaint, that on November 16, 1858, he paid to Jesse Pulston, a constable, $12.82, on an execution held by him against the- plaintiff, as surety for the defendant—the receipt for such payment is herewith filed—which amount remains due and unpaid, wherefore, &c. Before the justice, there was judgment for the plaintiff, and the defendant appealed. In the Common Pleas, to which the cause was taken by appeal, the plaintiff obtained a verdict, upon which the Court, having refused a new trial, rendered judgment, &c.
The defendant’s motion for a new trial is based upon three grounds: 1. The insufficiency of the evidence to sustain the verdict., 2. The refusal of the Court to give instructions moved by the defendant. 3. The giving of instructions alleged to be erroneous.
During the trial, the plaintiff gave in evidence a promissory note, in these words:
“Valparaiso, October '3, 1857.
“Six months after date, we promise to pay Amassa Easiwood, or order, $12.62, value received, without any relief whatever from the appraisement» laws.
(Signed,) “John P. Jones,
“Peter Packer.”
He also gave in evidence the receipt referred to in the complaint, which reads thus:
“Beceived of Peter Paclcer $12.82, in full for an execution against John P. Jones and Peter Paclcer, now in my hands, in favor of A. Eastwood. November 16, 1858.
(Signed,) “J. Dulston, Const?
*454And thereupon the plaintiff produced Amassa Eastwood., who testified that he was the payee o'f the note above copied; that it was given to him- for a balance due on settlement of all accounts which he held against the defendant, Jones / that a part of the consideration for which the note was given, was a fanning mill, purchased of witness by the defendant, for which he was to pay witness $25, and at the time defendant purchased the mill, he stated that he purchased it for himself and Packer, the plaintiff; that witness considered the note a joint note, in which Packer and Jones were both principals; that he, witness, left the note with one Hunt for collection, did not know whether it had, or not, been sued on ; he had, however, received full payment of the note from Hunt.
Plaintiff then offered in evidence the following execution, viz:
“ The State of Indiana, County of Porter, set.:
“ To any constable of Centre township, in said county:
“Whereas, Amassa Eastwood obtained judgment against John P. Jones and Peter Packer, on May 11,1858, as appears of record, for $42.78, with two dollars cost. You are therefore commanded to make the same, together with all accruing costs, by levy and sale of the goods and chattels of John P. Jones and Peter Packer, and make return thereof within six months from this date. Dated October 11, 1858.
(Signed,-) “E. S. Mereeield, <( seal. )>
“ Justice of the Peace!
Defendant objected to the introduction of this evidence, but the Court overruled the objection, and allowed the execution to be read to the jury.
Jesse Dulston was then called as a witness. He testified that he was the constable to whom said execution was delivered ; that defendant paid all of the execution, save $12.87; that defendant turned out plaintiff’s property to satisfy the execution, and that the above copied receipt was for money applied on the same execution. This’ is believed to be, substantially, all the evidence given in the cause. And the evidence being closed, the defendant moved thus to instruct *455the jury: “In order to find for the plaintiff, the jury must find that the money was paid on an execution against the defendant, on which the plaintiff was security for the defendant.” This instruction the Court refused, and instructed as follows: “ The essence of the action is whether Becker paid the money on Jones’ debt, and for Jones’ benefit. It is immaterial whether the money was paid on an execution against Jones, on which Packer was surety, or on any other execution against Jones, and in which Jones was liable.”
8. J. Anthony, Thos. J. Merifield, and A. L. Jones, for the appellant.As has been seen, the charge in the complaint is, that the money was paid by the plaintiff to the constable, on an execution held by him against the plaintiff, as surety for the defendant. That the plaintiff paid the money demanded in this suit to the constable, on a joint execution against him and the defendant, is a fact which admits of no controversy; but whether he paid it in satisfaction of a separate debt of the defendant, for which he was liable as surety, or in payment of the joint liability of both, was an inquiry proper for the consideration of the jury. We are, therefore, of opinion that the instruction moved by the defendant was pertinent to the case, and should have been given. And it seems to follow, that the instruction given was inapplicable to the evidence. It remains to be considered whether the evidence sufficiently sustains the verdict. We are not usually inclined to disturb the finding of a jury; but in this instance, the evidence seems to be fatally defective, in this : it fails to prove, either directly or by inference, that the plaintiff paid the money as surety of the defendant.
Per Curiam.The judgment is reversed, with costs. Cause remanded, &c.