
    Jessup v. Gray.
    
      Monday, January 6, 1845.
    Assumpsit for money paid by the plaintiff for the defendant’s use and at his request on a writing obligatory for the payment of money, payable to one T. W., in which the defendant was principal and the plaintiff his surety; and which the plaintiff had to pay. Plea, non assumpsit without oath. Held, that the writing obligatory, not' being the foundation of the suit, was not admissible as evidence without proof of its execution by the defendant.
    ERROR to the Randolph Circuit Court.
    
      J. Brownlee and B. M'-Clelland, for the plaintiff.
    
      J. Smith, for the defendant.
   Blackford, J.—

Gray brought an action of assumpsit against Jessup before a justice of the peace. The cause of c action, as shown by the statement filed, is “for money paid by the plaintiff for the defendant’s use and at his request, on a writing obligatory for thirty-five dollars, dated, &c., and payable to one Thomas Ward six months after date, in which the defendant was principal and the plaintiff his surety; and which the plaintiff had to pay.” ■ Plea, non assumpsit. Verdict and judgment for the plaintiff. On the trial, the plaintiff offered in evidence the writing obligatory described in the statement of demand without proving its execution by the defendant. The evidence was objected to, but was admitted. Verdict and judgment for the plaintiff. Where a writing obligatory is the foundation of an action, its execution can only be denied by a plea under oath. R. S. 1838, p. 449. But the action here- is assumpsit, and the writing obligatory was only admissible, with other evidence, to show the consideration of the promise on which the suit was founded. The statute, therefore, does not apply to the case, and the execution of the writing obligatory should have been proved.

Per Curiam.

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