delivered the opinion of the Court :
We are obliged to reverse this judgment because the verdict is clearly against the evidence. It was incumbent on the plaintiff to prove a suit against the maker of the note would have been unavailing, but the witness called by him for that purpose showed it would not have been. The note matured May 1, 1867. The witness testified the maker of the note kept house in Chicago in 1866 and 1867, and had handsome furniture, some fine oil paintings, and a fine library which, the witness says, filled two large book cases, worth §150 to $200 each. He thinks the furniture was worth §2500 to $3000. He says the horse and carriage which the maker of the note also owned, may have been sold before May, 1867, though he *256can not state positively, "but it does not appear what has become of the furniture and library further than that after the owner ceased to keep house he stored his furniture. For aught that appears in the record he owned this furniture and library at the time of the trial.
On this evidence the jury were not justified in finding that a suit agáinst him would have been unavailing, although he may have been heavily in debt. The judgment must be reversed and the cause remanded.
Judgment reversed.