Harlan v. Harris

17 Ind. 328, 1861 Ind. LEXIS 426

Opinion

Worden, J.

Suit by Harris as holder, against the appellants as indorsers, of certain promissory notes. Issue; trial, finding and judgment for the plaintiff.

On the trial, it became material for the plaintiff' to prove, in order to show the insolvency of John Shirty, the maker of the notes, that a certain piece of land owned by him, and mortgaged to secure the payment of the notes, had been sold on execution against him. This the Court permitted, over the objection of the defendants, on the ground that the evidence was secondary, to be proved by parol. A new trial was asked on this ground.

II. 8. Kelley, for the appellants. J. II. Jones, for the appellee.

We think the Court erred in admitting parol evidence to prove such sale. The judgment, execution and return thereon, or a transcript thereof, and the sheriff’s deed, were primary evidence, and should have been produced, or their absence accounted for.

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