¶1delivered the opinion of the court.
¶2The demurrer to the declaration in this case was properly overruled. By the failure of defendants to discharge the note, when due, was executed to Allen, the plaintiff’s right of action was complete, without even the commence-men(- 0f a sujt upon it, by Allen. .Upon the execution °‘ the writ ot inquiry, in the present action, the recovered by Allen, with the execution issued thereon, and the replevin bond entered into by plaintiffs, were correctly admitted as evidence; but it was erroneous to abate the suit as to Nicholas T. Thomas, on the return of non est itiventus, as to him; after he had appeared, and demurred to the declaration.
¶3The judgment must therefore be reversed, and tile cause remanded, with directions for further proceedings to be had in accordance with this opinion.