#### Beard *v.*Adams.

Assumpsit by the assignee against the maker of a promissory note governed by the law-merchant. Plea, that the plaintiff had previously sued the indorsers and obtained judgment against one of them, the process not having been served on the other; that the now defendant had entered himself bail for the stay of execution on said judgment; and that the bail was sufficient. *Held,*that the plea was bad.

Where there are two issues, one in law and the other in fact, the plaintiff cannot have final judgment until both issues are found in his favour.

ERROR to the *Vigo*Circuit Court.

Blackford, J.

An action of assumpsit was brought in *September,*1842, by *Adams,*as assignee of a promissory note, *470against *Beard*the maker. The note was payable to *James Grover*and *James W. Borden*at the branch at *Terre-Haute*of the State Bank of *Indiana,*and was assigned by them to the plaintiff. Pleas, 1. Non assumpsit without oath; 2. That the plaintiff had previously sued the indorsers of the note, and, at the *May*term, 1842, had obtained judgment against one of them, the process not having been served on the other; that the how defendant had entered himself bail for the stay of execution on said judgment; and that the bail was sufficient. General demurrer to the special plea, and the demurrer sustained. Judgment for the plaintiff

We think the special plea is bad. The assignee’s right to sue the maker of a promissory note like the present, which is governed by the law-merchant, is not taken away by a judgment recovered against the indorser, until that judgment is satisfied. Byles on Bills, 223. The entry of the bail was only a security for the judgment and not a satisfaction of it. The circumstance that the now defendant is the bail, and that, when the stay has expired, execution may issue against him on the recognizance, makes no difference. He entered into the recognizance voluntarily for the accommodation of the indorser, and could not, by such act, avoid his previous responsibility to the plaintiff on the note. The demurrer to the special plea was, therefore, correctly sustained.

The record concludes as follows: “ It is therefore considered by the Court that the plea of the defendant is insufficient in law to bar and preclude the plaintiff’s recovery, and the demurrer thereto is sustained. It is therefore considered that the plaintiff recover of the defendant the sum of 335 dollars and 84 cents in damages, and his costs,” &c.

'The plaintiff in error contends that the Court should not, on sustaining the demurrer to the special plea, have rendered final judgment for the plaintiff below, and we think he is right. The general issue was pleaded, and there was therefore an issue of fact to be tried either by the Court with the consent of the parties, or by a jury; and until that issue was found for the plaintiff below, he could not have final judgment.

The circumstance that the defendant could not, under the issue of fact, have disputed the execution of the note or of the *471assignment, is not material. The plaintiff might have been-defeated on other grounds.

*C. W. Barbour,*for the plaintiff.

*W. D. Griswold*and *J. P. Usher,*for the defendant.

*Per Curiam.*

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