This was an action of assumpsit on a warranty, that a certain note, sold by the defendant to the plaintiff and made by one Benjamin Parker, was due and collectable. Plea? non-assumpsit and trial by jury.

Upon the trial in the county court, the plaintiff, to support the issue on his part, offered evidence tending to prove that about the 15th of October, 1837, the defendant was indebted to him in about $85,00, that on said day his agent called on defendant for payment and by an arrangement between them, the plaintiffs agent received the note in question in satisfaction of the debt, the defendant endorsing the note sold, which was then due and payable, and authorizing the agent to fill up the endorsement with the following words:— “ I warrant the within note due and collectable,” and that it was further agreed, at the time of the endorsement, if the maker did not pay it in a short time, the plaintiff was to sue the note and attach Parker’s property. The plaintiff further introduced evidence tending to prove that, soon after, he commenced a suit on said note, and that the suit so commenced was abated; — that immediately after the abatement of that suit, he sued said Parker again on said note, obtained judgment against him and committed him to jail ; that Parker swore out and that the note still remained unpaid and that, at the time of the service of the writ in the latter suit, the defendant had no attachable property.

The defendant, to support the issue on his part, offered evidence tending to prove that four or five days after the sale of said note, the plaintiff sued Parker on said note and attached sufficient personal property, belonging to said Parker to secure the note; that the suit so commenced was abated for the reason that the person who served the writ, who was a deputized person, was interested in the note at the time of the service of the said writ.

To rebut this showing, the plaintiff offered evidence tending to show that Bates, the -.defendant, was used as a wit•ness on the trial of the suit so abated, to show the interest of . . the person who served said writ; which evidence was rejected by the court as immaterial. The plaintiff further offered evidence tending to show, that his agent S. S. Beach and his attorney, Scott, on their way to serve said writ on Parker, called on defendant and informed him that they had taken out a writ and were about to attach property on the writ,' and that defendant inquired why they did not employ the fproper officer to execute the writ, when Scott', the attorney, replied that the deputized person would answer equally as well.

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