The judgment of the court was pronounced by
Kins, J.This action was commenced by an attachment against the defendant, who, it is alleged, resides out of the State. The plaintiff avers that lie and the defendant were the joint and several makers of a promissory note, given to one Beni, for work and labor done for the joint benefit of the two, and that a judgment was obtained against the plaintiff, for the amount of the note, which he subsequently satisfied. He prays for a judgment for one half of the sum thus paid. The defendant was represented by a curator appointed by the court, who pleaded, as an exception, that the defendant was not properly before the court, not having been cited, and not being the owner of the property *642attached ; and subsequently filed' an answer to the merits, in which he pleaded the general issue, averred that the judgment against the plaintiff had been obtained by collusion, and that the defendant was, at the inception of the present action, and still continued to be, a resident, of the State.
The only evidence adduced by the plaintiff in support of his demand was, a transcript of the record of Bent v. Beck & Hunter, to which'the defendant was not a party. The original note was- not produced, and no proof offered of its execution, nor of the consideration for which it was given. This testimony is insufficient to sustain the plaintiff’s demand.
The judgment of the District Court is, therefore, reversed, and judgment rendered against the plaintiff as in case of non-suit;- he paying the costs of both courts.