
    CASE 31 — PETITION ORDINARY
    OCTOBER 4.
    Bolling vs. Doneghy.
    APPEAL FROM BOYLE CIRCUIT COURT.
    1. An action cannot be maintained by one surety against a co-surety, unless the principal be insolvent. The failure of the petition to allege such insolvency renders it fatally defective.
    2 Proof of a material fact not alleged is irrelevant and unavailing.
    Harlan & Harlan for appellant.
   JUDGE ROBERTSON

delivered the opinion of the court :

An action cannot be maintained by one surety against a co-surety, unless the principal be insolvent. The petition in this case against the representatives of the plaintiff’s co-surety for a judgment for money paid for their principal, does not allege the insolvency of the principal, nor any other reason why the money therein demanded could not be made out of him. It, therefore, failed to show a cause of action, and ought to have been so adjudged on the demurrer to it.

The deposition taken and read to prove that the principal was insolvent was irrelevant, and, if relevant, insufficient. There being no allegation of insolvency, that question was not in issue for litigation ; and therefore this proof was extraneous and inadmissible. Moreover, it only proves that the sheriff considered the principal insolvent, but neither knew, nor had ever heard, that any execution against him in any case had ever been returned “ no property.” Had insolvency been involved in the issue, this proof would have been insufficient.

There was error also in rendering a judgment in personam against one of the executors. Had any judgment against him been proper, without proof that assets had come to his hands, it ought to have been cle bonis testatoris.

Wherefore, the judgment is reversed, and the cause is remanded for a new trial and further proceedings according t© the principles of this opinion.  