¶1Suit on note, and to foreclose a mortgage, against Silas and Benjamin Morehouse, Barnard, and Oiler.
¶2The return upon the summons shows a service upon all of the defendants; upon Benjamin Morehouse by copy.
¶3Gregory, as amicus curice, moved, upon written statement and affidavits, to set aside the return as to said Benjamin. The motion was overruled, and exception taken by Gregory in that capacity. We have heretofore decided that an exception can not be taken by one appearing in that character.
¶4Silas Morehouse demurred to the complaint, because Oiler, the payee of the note, and who had assigned it in writing, as averred, was made a party defendant. He was not a necessary party, nor are there any averments showing that it was proper he should be made a party. The demurrer was overruled ; but we do not perceive any error in this ruling, to the prejudice of the appellants in this case.
¶5Silas Morehouse answered: 1. A denial; 2. Payment; 3. That he had paid Barnard, to whom the notes had been *478assigned by Oiler, and who then held one of them, certain named stuns. Reply in denial of the second paragraph of the answer, and, by Potter, admitting the third. Barnard, Benjamin Morehouse, and Oiler were defaulted.
¶6Upon the trial a book, proved to be the record of mortgages for Tippecanoe county, was produced, and, over the objection of the defendant, the recorded copy of the mortgage sued on was read in evidence without producing, or accounting for the absence of the original.
¶7It is insisted that this was error; that in all cases where it is shown that the instrument is in the hands, or ought to be, of the party offering the evidence, that the best evidence, to wit, the original, should be produced, and its execution proved, before it is offered; that the statutes relied upon by appellee, 1 R. S., § 31, p. 237; 2 id. § 288, p. 92, can only apply in cases where the instrument is not presumed to be in possession of the party offering the evidence, or where there is proof of its loss, &c.
¶8We do not concur in this view of the case.
¶9The judgment is affirmed, with costs, and 3 per cent, damages.