
    Hugh Rodgers, Use of George W. Meek vs. Thomas J. Hunter and James Trotter.
    M. sued H. and T. as indorsers of a promissory note ; they pleaded a special plea, not under oath, that a recovery at law had been obtained by M. against the maker of the note, and they, although at the time residents of this state, were not joined as defendants in the action against the maker; M. demurred to the plea, on the ground that the defence should have been made by plea in abatement, verified by affidavit; Held, that the demurrer was well taken ; and if the demurrer had not been filed the plea might have been properly stricken out as a nullity.
    In an action of assumpsit against the indorsers of a promissory note, the defendants pleaded non-assumpsit, and also a special plea in bar, the plaintiff demurred to the special plea, and the defendants joined in the demurrer; the court overruled the demurrer, and entered a final judgment in favor of the defendants : Held, that it was error to give a final judgment for the defendants, while the plea of non assumpsit existed in the case, undisposed of.
    Eerou, from the circuit court of Carroll county; Hon. Hend-ley S. Bennett, judge.
    
    This was an action of assumpsit, instituted in the circuit court of Carroll county, by Hugh Rodgers, for the use of George W. Meek, against Thomas J. Hunter and James Trotter, as indorsers of a promissory note, made by Seaborn J. Durham, to the April term, 1844. The defendants pleaded the general issue, and also a special plea in bar, “ That at the October term, 1842, of this court, the said Meek, who was then and there the holder and owner of the note sued on in this action, impleaded the said Seaborn J. Durham in an action of assumpsit, in this court, founded on said note, and recovered judgment in said action, on the 10th day of April, 1843, against said Durham, on the identical note here sued on, for the sum of seventy-seven dollars, and costs; which said judgment still remains unreversed, and in full force; and these defendants aver that they were not joined with said Durham as defendants in said action against him, notwithstanding they were at the time said Durham was impleaded as aforesaid, resident citizens of the state of Mississippi,” &c. This plea was not verified by affidavit. The plaintiff joined issue on the plea of non assump-sit, and demurred to the special plea in bar, and assigned the following cause of demurrer, to wit: “That the said second plea by the said defendants above pleaded, ought to have been pleaded in abatement, and verified by affidavit, as required by the statute in such case made and provided. And also that the said second plea is in other respects uncertain, informal, and insufficient.” The defendants joined in the demurrer, and it was overruled by the court, and a final judgment rendered in favor of the defendants. To reverse which judgment the plaintiff now prosecutes this writ of error.
    
      A. C. Baine, for plaintiff in error.
    The point in this case, is, whether the demurrer to the second plea was rightfully overruled.
    We contend it should have been sustained. Ever since the case of Lillard v. The Planters Bank, in 3 How. R. 78, down to the case of The Agricultural Bank v. Harris, 2 S. & M. 463, it has been held by the bar and court that a plea in abatement is the proper defence, where the indorsers are sued without the drawer, and not a plea in bar.
    From the nature of the defence it must be so. It is based on the idea that the plaintiff has a better writ; and not that he cannot recover in any form of action.
    This plea, however, is bad, either in bar or abatement, because it does not aver that the plaintiff knew at the institution of the suit against the drawer, that the indorsers resided in the state. For the law presumes that the parties not sued, are absent or dead. See Lillard v. Planters Bank, before cited. Why? Because of another presumption, I apprehend, that the plaintiff will not wilfully violate the law. Hence, if the defendant insists that there are other parties liable to be sued, the court will not hear him until he makes affidavit of the fact, that the party can better his writ.
    
      In this case, that the same consequences might ultimately result to the plaintiff as if it were a bar, instead of an abatement, can make no difference. The reasoning of the court in the case cited from S. & M. is conclusive of this, though the circumstances which called it forth are different from what they are here. Yet its force and applicability must hold to sustain the plaintiff in this case, as it did to defeat him in that. Moreover, the plea, (as one in abatement,) is bad in this case, because not sworn to.
   Mr. Justice ThacheR

delivered the opinion of the court.

This is an action of assumpsit, instituted against the indor-sers of a promissory note, made on the 11th day of March, 1841. The defendants pleaded a special plea that a recovery at law had been obtained by Meek, the usee in this action, against the maker of the note sued upon in the action at bar, and that in that action against the maker, they, although at the time residents of this state, were not joined as defendants. This special plea in bar was not verified by affidavit. To this plea a demurrer was filed, stating for cause that the said de-fence should have been made by plea in abatement, verified by affidavit. This cause of demurrer seems to have been well taken, under the decision of this court, in Lillard v. The Planters Bank, 3 How. 78; and the plea appears to be in other respects defective in its attempt to bring up the defence that might be made under the statute, (How. & Hutch. 595, § 33,) in the case of a failure to join in the action all the parties to a promissory note resident in the state. The plea seems to relate more to a previous action than to the one at bar. Had the plea not been met by the plaintiff in a demurrer, the court below might have properly stricken it out as a nullity upon his motion. Again, the court below erred in giving a judgment for the defendants while a plea of non assumpsit existed in the case.

Judgment reversed, the demurrer directed to be sustained with judgment of respondeat ouster, and cause remanded.  