#### H. J. Oglevie and Others *v.*J. Wiley.

Pleading — Reply—Insufficiency.

A reply denying each, and every allegation in defendant’s claim, and demanding proof in full, is insufficient, since a specific denial of payment should be made.

Pleading — Issues and Proof.

Under an allegation of indebtedness for groceries sold and delivered, proof of indebtedness for oxen, -wagon and plow, etc., is not admissible. '

Attachment — Liability of Sureties on Undertaking.

The sureties in an undertaking in attachment proceedings can not he held liable after reversal of the judgment in the case

APPEAL. FROM McCRAOEEN CIRCUIT COURT.

February 14, 1873.

*461Opinion by

Judge Peters :

Appellee in his original petition alleges that appellant and himself had been partners in the blacksmith business, that the co-partnership had been dissolved by mutual consent, that by the terms of dissolution appellant bound himself to pay all the outstanding debts of said firm, in consideration that appellee had assigned to him his entire interest in the assets of the firm; that there seems to be a debt owing by the last firm to Ragin, Dickey & Carson for $74.45, which appellant had failed and neglected to pay, and suit had been brought against appellee, and judgment would be rendered against him for said debt and cost amounting to $10 or $15, that there might be other partnership liabilities of which, however, he had no knowledge, as appellant had never rendered him’ an account or list of the firm debts, that appellant was then a new resident of the state, but had personal estate within the jurisdiction of the court, and as appellee was in danger of having the debts to pay he prayed for and obtained1 an order of attachment against the property of appellant for his indemnity. In his answer appellant admitted that a partnership had existed as stated in the petition, and that it had been dissolved as therein set forth; that the debt to Ragin, Dickey & Carson was due and unpaid, that the late firm, owed another debt tO' Whole of $15 or $20, and that Tomlinson & Edwards claimed to have a debt against it of $26, but when they dissolved appellee asserted that he had paid that debt and got a credit in the final settlement with said firm for the same, but as he had not in fact paid it, he should account for the amount to the firm. That he was always ready and willing to perform’ his part of his contract, and comply with the terms of dissolution, and for that purpose left the means in the hands of his agent when he left Kentucky to pay Ragin, Dickey & Carson the debt aforesaid. That appellee owed him much more than was sufficient to pay the last named debt, and all others that appellant had assumed to pay for said firm which he had failed and refused to pay.

And in the second paragraph of his answer he avers that appellee was justly indebted to him in the sum of $268 due by account, which he files with his answer, and pleads the same as a set-off against , the demand of appellee, and prayed for judgment over the balance alleged to be due him.

Appellee filed a reply to the set-off, as it is denominated in the order of court, noting the filing thereof. In his reply he admits ap*462pellant worked for him on his house in Woodville; but alleges he paid him for the work, and denies explicitly the other items of the account pleaded as a set-off, except the charge for the buggy, but for that he is credited on the account; as to the allegation in the answer that he claimed a credit in the settlement for having paid Tomlinson & Edwards, he neither denies it specifically, nor responds directly; but in the last sentence of the first paragraph he says he denies each and every- allegation in defendant’s’ counterclaim’, and calls for full proof. This general denial is not sufficient; this debt as to the Tomlinson & Edwards debt, which appellant alleges he improperly got credit for is not pleaded as a counterclaim, nor set-off. But he relied on the asserted indebtedness as set forth in the accounts filed as a set-off, and the $26 due to Tomlinson & Edwards are not included in that exhibit. After concluding his negative of an indebtedness as set forth in the answer, he proceeds in his reply as follows: Plaintiff states that the defendant is indebted to him' in the sum of $272.05 for *groceries*sold and delivered by plaintiff to defendant at defendant’s special instance and request, an account for which is here filed and marked “D1.”

No part of said account has been paid; but the same is now due and wholly unpaid. Wherefore “Plaintiff prays judgment against defendant for said sum and for all proper relief.” This paper is not alleged in the body thereof to be an amended petition. Nor does the order noting the filing thereof so denominate it. Appellant, if it was properly an amended petition, should have answered it, and his failure to do so would have entitled appellee to a judgment by default if the allegations had been sufficient; but treating it as a reply, where the pleadings under the Civil Code are closed, there could be no rejoinder.

But if we are mistaken in that view — are the allegations sufficient to constitute a cause of action for the amount claimed? The indebtedness as set forth and for which the judgment is sought is $272.05 *for groceries sold amid delivered by plaintiff to- defendant at his special instamce and request.*When- the account is examined which he files, only $27.80 of it is for groceries, and they by retail in very small parcels indeed. The balance to make up the $272.05 is for one yoke of oxen at $70, a wagon at $35, 2 plows, etc., $8.50; rent for houses, borrowed money, and one charge for $30, but whether for borrowed money or other thing is not stated. *463Under an allegation of indebtedness for *groceries*sold and delivered, proof of an indebtedness for oxen, wagon and plows, etc., would not be permitted. Appellee, however, is as unsuccessful in his proof as he is -in his allegations. Rogers, the only witness who speaks of the oxen and plows, says he heard appellant say the oxen were appellee’s and he intended to bid for them- till they brought his figures. But he proves appellant did not- buy them, and does not prove that he received the price for which they 'sold, and as to the plows, etc., he neither proves that they were the property of appellee, nor their- value. And Scott, he proves he bought the wagon at $32.50 and bought it at the sale of appellant’s property, and that he heard it was appellee’s but from whom he heard it he did not state, and even if it was the property of appellee he was not entitled to more than the price for which it was sold. Still he got a judgment for $35 for it. •

*Bigger & Mop, for appellant.*

*Bullock, for appellee.*

And as to the borrowed money charged in the account there is no evidence whatever. It was erroneous therefore to adjudge to ap-pellee the amount of the account under any aspect of the case. The cause of action set out in the original petition seems to have been abandoned. Judgment *reversed*and cause remanded with directions for further proceedings not inconsistent with this opinion.

It is proper to observe that the writing following the attachment, containing a statement that it was levied on property of appellant is not signed by any person. But the reversal of the judgment above which is of the 23d of May 1872, has the effect to reverse the judgment of the 31st of the same month against Burnley & Hazelwood. Since their undertaking was that N. J. Oglevie should perform the judgment of the court in the case, and as .there is no judgment against him- after the reversal, they can not be responsible.