
    Grover v. Sims.
    If in a suit against A. and £., the writ be returned served on A. and not found as to B., and an alias writ in tlie cause, issued against B. and 1 directed to the sheriff of another county, be held void, the plaintiff may suggest on the record the return of “ not found” as to B. on the first writ, and proceed against A. alone.
    If instructions to the jury be refused,.and the record do not show that they were applicable to the case, the refusal will be presumed to be correct.
    
      A. was indebted to B., having funds of the latter in his hands, and B. was indebted to C. The parties met and agreed that A. should pay C. the debt the former owed B., as soon as its amount could be ascertained, &c., and C., with B.’s and A.’s assent, took A. as his debtor. Held, that C. could sue A. for money had and received, and that B.,s debt to C. was extinguished.
    Tuesday, May 25.
    APPEAL from the Bartholomew Circuit Court.
   Sullivan, J.

Sims brought an action of assumpsit against B. W. Grover and John Sheets in the Bartholomew Circuit Court. The capias was returned executed on Grover and not found as to Sheets. An alias capias was issued against Sheets directed to the sheriff of Jefferson county, and was by him executed and returned. Sheets appeared and pleaded in abatement, that at the time of the commencement of the suit against himself and Grover, they were both residents of the county of Jefferson, and had continued to reside there ever since; that the only writ which had been served upon him in said cause, had been served in the county of Jefferson; and that neither of said defendants then was, or ever had been, a resident of the county of Bartholomew. The plaintiff demurred to the plea,-but the Court overruled the demurrer, and the writ as to Sheets was abated. The return of “ not found” as to Sheets, on the first writ, was then suggested on the record, and the suit proceeded against Grover.

The declaration contains three counts. The first count is for money had and received. The second recites, that one Richard Treadway was indebted to the plaintiff in the sum of 1,500 dollars, for which he had made his promissory note; that afterwards, to wit, &c., Treadway sold to the said Gi'over and John Sheets a certain quantity of pork, &c. of the value of more than 5,000 dollars; that Grover and Sheets, in consideration that the plaintiff wnuld forbear to sue Tread-way, did, with the assent of Treadway, promise the plaintiff to pay him the amount so due to him from Treadway, so soon as they should sell said pork, &c.; that plaintiff did forbear to sue Treadway; and that Grover and Sheets did afterwards, to wit, &c., sell and dispose of said pork, &c. for the sum of 6,000 dollars; by means whereof they became liable, &c. The third count is upon an account stated.

The defendant, Grover, appeared and pleaded, 1. Non assumpsit; 2. Payment. Verdict for the plaintiff; motion for a new trial overruled; and judgment on the verdict.

It is contended by the plaintiff in error, that the statute which directs the mode of proceeding in a suit against joint defendants, where one or more of them are not found, did not authorize the Court in the present case, to proceed to judgment against him after the writ against Sheets was abated. After the service of the writ on Grover, it was not necessary for Sims to issue an alias capias to the sheriff of Jefferson county against Sheets. He might have suggested on the record the return of “ not found” as to Sheets, and proceeded at once to judgment against Grover. But issuing a writ against Sheets, which was determined by the Circuit Court to be irregular and void, did not, in our opinion, prevent him from afterwards pursuing the statutory remedy. The alias capias against Sheets was decided to be a nullity, after which the case stood upon the docket as to Grover, as if it had not been issued.

During the progress of the trial, the counsel for the defendant moved the Court to give the following instructions to the jury, viz., 1. If the proof be, that the defendant promised to pay to the plaintiff the amount of his note against Treeidway on the 25th of December, 1837, it will not sustain the second count in the plaintiff’s declaration; 2. That unless the second count is proved as laid, the plaintiff cannot recover under it; 3. That if it is proved that Sheets and Grover; were indebted to Treadway, and Treadway to the plaintiff, and by agreement, Sheets and Grover were to pay the plaintiff the debt which Treadway owed him, the plaintiff cannot recover, unless he did, at the time of the agreement, release Treadioay from said debt.

The Court refused the instructions as asked, but instructed substantially as follows: That if it appear from the testimony that Treadway was indebted to the plaintiff, and that Sheets and Grover had funds in their hands belonging to Treadway, and it was ágreed betw.een all of them that Sheets -and Grover should paji to the plaintiff, on Treadway's note, whatever amount they owed him, so soon as that amount could be ascertained by an examination, of the accounts between them, the plaintiff might recover on the. count for money had and received, and in such case, it is not material for the plaintiff to prove that he delivered up to Treadway his note to. be cancelled,-or otherwise released him. The Court further instructed, that to sustain the second count in the declaration, both the consideration and promise must be proved substantially as laid; that it must not only appear that Sheets and Grover promised to pay to the plaintiff the amount of Treadway's note, but thát the promise was made in consideration that he would forbear to sue Treadway.

The record does not contain the evidence in the cause, nor any part of it. How far the instructions asked were applicable to the case we do- not know. The instructions refused were, as we are bound to presume, inapplicable and therefore correctly refused.

We gather from the instructions given that the case, before the jury was this: — Sheets and Grover were indebted to Treadway, having funds or cash of his in their hands; Tread-way was indebted to Sims; the parties met and mutually agreed that Sheets and Grover should pay to Sims the amount they owed Treadway, so soon as the precise amount of their indebtedness to Treadway could be ascertained by reference to their accounts. On this state of facts the questions are, whether, by the agreement, the debt from Treadway to Sims was extinguished? and whether Sheets and Grover became debtors to Sims, so that an action for money had and received may be maintained by him against them? The case of Wilson et al. v. Coupland et al., 5 Barn. & Ald. 228, is very much in point. In that case, the plaintiffs were creditors and the defendants were debtors to Taillasson 'and Co., and by consent of all parties, an arrangement was made that the defendants should pay to the plaintiffs the debt due to them from Taillasson and Co. The Court held, that as the demand of Taillasson and Co. on defendants was for money had and received, the plaintiffs were entitled to recover, on a count for money had and received, against the defendants. The assent of the defendants to the arrangement made them debtors to the plaintiffs, and liable to an action for money had and received to the use of the plaintiffs. There can be no doubt but that Treadway could have recovered from Sheets and Grover the amount they owed him, in an action for money had and received, because, if they were indebted at all, it was for money of his in their hands. The case above-cited is therefore, in every material point, similar to the one under consideration.

In Crowfoot et al., Assignees of Streather, a Bankrupt, v. Gurney, 9 Bing. 372, the facts were, that Streaiher being indebted to Solly and Sons, and Gurney being indebted to Streaiher, Streaiher requested Gurney to pay whatever might he due from Gurney, to Solly and Sons. Gurney ■ promised Solly and Sons to do so as soon as the amount was ascertained. After the amount had been ascertained, and before it was paid, Streaiher became bankrupt. On those facts, the Court decided that notwithstanding the bankruptcy of Streather, Solly and Sons might recover from Gurney the amount he had promised to pay them. The circumstances, it was said by the Court, amounted to an equitable assignment of the debt due from Gurney to Streaiher, and bound the assignees of the latter.

It was contended in the case last-cited, that the assignment was not available, because there was not a defined and ascertained debt due the assignor at the time of the assignment, and the case of Fairlie v. Denton, 8 B. & C. 395, was relied on in support of the position. But the Court remarked that all that should be required was, that the debt assigned should not be larger than the sum due to the- party assigning. If' the balance were ascertained while Streather was master of his own acts, it was the same thing as if it. had been ascertained at the time of the order. We concur with the opinion above expressed. The objection in the present case, that ^he amount due from Sheets and Grover to Treadway was not defined at the time of the assignment, and that therefore the plaintiff cannot recover, is not available.

J. G. Marshall and P. Sweetser, for the appellant.

M. G. Bright and H. Brown, for the appellee.

The only remaining question in thé case is', whether the arrangement between the parties operated as an extinguishment of the debt from Treadway to Sims? We think it did. The plaintiff, with the assent of Treadway and-of Sheets and Grover, took the latter as his debtors. In the case of Wharton v. Walker, 4 B. & C. 163, all the judges concur in saying that the effect of the arrangement in the case of Wilson et al. v. Coupland et al., supra, was to extinguish the debt which Taillasson and Co. owed the plaintiffs.

We think the instructions of the Court were in all things correct, and that the judgment should be'affirmed.

Per Curiam.

The judgment, is affirmed, with 1 per cent. damages and'costs.  