
    Dial and another v. Taylor and others.
    Where a petition sets forth an account, consisting of several notes of the defendant and pay ments thereon, and the notes are set out m the petition, the petition is founded “in whole or in part” on eaoh of tho notes; and notwithstanding that the account may show one or more of tiro notes to have been discharged, they may be given in evidence without proof of their execution, unless their execution bo denied under oath.
    Appeal from I-Iarrison. This suit was instituted by the appellees to recover of the appellants a balance due oil the following statement of indebtedness, to wit:
    1S46, June 5th.
    
    Open account between merchant and merchant at this date. $70 17
    Note dated June 13th, 1845, due ten months after date. 120 18
    Note dated April 15th, 1846, due 12 months after date. 1,003 73
    And interest. Both notes draw 8 per cent, after maturity.
    Interest on open account to 21st June, 1847. . 5 86
    lutercst on small note to 21st June, 1847. 11 43
    Interest on large note to 21st June, 1847. 14 72
    Making total amount of debt and interest to the last-mentioned date.. $1,226 09
    On which the petition allowed the following credits, to wit:
    Paid oil the 21st June, 1S47, $800.
    This amount plaintiffs averred they applied to said items of indebtedness, as follows: first, to pay the account and interest on it; second, to pay the small note and interest oil it; and third, the balance of $592.36, credited on the large note for $1,003.73.
    Paid on the balance of said largo noto, 21st May, 1S49, $250. The petition averred that, after allowing said' payments, there was a balance due them, to be ascertained, according to the following statement:
    Balance due 21st June, 1S-17, $426.09 and interest thereon, subject ’to the credit of $250 paid as aforesaid, 21st May, 1849.
    The account and both notes were fully set out in the petition. On the trial the small note was offered in evidence, and objected to until the execution thereof should be proven. The objection was overruled, and judgment for the plaintiffs. The defendants appealed.
    
      D. S. Jennings, for appellants.
    The only question which is presented for the consideration of this court is, ■Was the petition in this ease founded in whole or in part on the note for $120.18? If it was, the 86th section of the act of May 13th, 1846, dispenses with the necessity of proving its execution. If it was not, the admission of it in evidence, without proof of its execution, was error. We seek to ■maintain the latter proposition. We contend that in no just or legal acceptation of the phrase “founded upon,” could the petition in this case be said to -be founded “in whole or in part” on the small note. It was wholly unnecessary to have set it forth in the petition, and it is described, not as constituting appellee’s right of action, but in anticipation of appellant’s defense of payment. It was merely evidence to rebut or counteract that plea. Being so, it was necessary to prove its execution before it could be properly' admitted in evidence. (1 Chit. Plead., 423-4.)
    
      W. P. Hill, for appellees.
   Lipscomb, J.

The appellants contend that the suit was not in the wholo nor in part brought upon this note, and that it is not within the provision of the art. 741, Hartley’s Digest.

That article provides that when any petition, answer, or pleading shall be founded in whole or in part on any instrument or note in writing charged to have been executed by the other party, or by his authority, and not alleged therein to b'o lost or destroyed, such instrument shall be received as evidence, without the necessity of proving its execution, unless its execution is denied on oath. This law, we believe, was adapted to our practice, and did not have anyother system in view. According to the common-law practice each different note could, in general, form the basis of a separate count, and each count ■would stand independent of the others. Under that practice, a note not specially counted on might well be said not to be the foundation of the action in whole or in part. But according to our practice our actions are founded on the circumstances alleged in the petition. The note being set out in the petition, the petition is in part founded on it, and brings it fairly within the statute, and the court below did not err in admitting it to bo read without proof of the execution. The judgment is affirmed.

Judgment affirmed.  