
    William Thompson vs. The President, Directors and Company of the Planters Bank of the State of Mississippi.
    The statute of 1837, requiring the holder of a note to sue all the drawers and in-dorsers, living and resident in this state, in one action, does not apply to the makers of a note, which had never been indorsed.
    In such case, by statute, (How. & H. 594) the plaintiff may sue any one or more of the makers of a joint note in the same action.
    In error, from the Carroll circuit court.
    The appellees sued the appellant in the court below, upon a joint and several note in their favor, made by the appellant, and B. G. Whitehead, Jefferson Fatheree, and Mark Noble, for forty-seven hundred fifty-four dollars, and sixty cents. The writ was served upon the appellant, who appeared and plead the following plea:
    “ William, Thompson v. The Planters Bank.
    
    “And the saidWilliam Thompson, by his attorney comes and defends the wrong and injury, when, &c. and prays judgment of the said writ and declaration, because he says that before the commencement of this suit, to wit, at a term of the circuit court in Holmes county, in the state of Mississippi, the said plaintiff commenced a suit in said court, upon the same identical note, which is the foundation of this suit, against Bryant, G. Whitehead, Jefferson Fatheree, and Mark Noble, the joint makers thereof, with this defendant; and such proceedings were had thereon, that judgment was in said court, recovered against the parties then sued, as by the record and proceedings thereof, remaining in said court, more fully appears. And the said defendant further saith, that he was not joined in the said action, according, to the act in such case made and provided ; and the said defendant avers, that at the time said suit was commenced, and from thence hitherto, he has been living anda resident of the said state of Mississippi, and this he, the said defendant, is ready to verify, wherefore he prays judgment of the said writ and declaration, that the same may be quashed.”
    “ ShattucK & Wellers, for defendant.”
    This plea was sworn to.
    The appellees demurred to the plea, and the appellant immediately filed the same, altering the form to a plea in bar; the appellees demurred also to this plea; the court below sustained the demurrer to -the- plea in bar, and the defendant failing to answer over, the court rendered a final judgment against him, from which the defendant prayed, and prosecuted this appeal.
    The counsel for the appellanbfiled no brief in the case.
    
      J. 8. Ayres, for appellees.
    The appellees instituted' suit in the Carroll circuit court, against appellant, on a note for $4754 60, which note bears date September 9, 1837, and due at twelve months, signed by B. G. Whitehead, Jefferson Fatheree, William Thompson, (appellant) and M. Noble.
    The appellant, Thompson, filed a plea verified by oath, setting up in substance, that suit was instituted in the Holmes circuit court, on the same note, against Whitehead, Fatheree, and Noble, and prosecuted to judgment against them; that he was then, and still is, a citizen of this state, and contends that by virtue of the act of May, 1837, he is thereby discharged. To this plea the appellee filed a demurrer, which was sustained by the court below, and judgment .respondeat ouster awarded. Defendant, Thompson, files then the same plea substantially in bar, to which there is also a demurrer, which was likewise sustained by the court below, and judgment was rendered against Thompson, for the full amount of the note and interest.
    The only.question presented by-the record for the consideration of the court, is the effect of the act of May, 1837. See How. & Hutch. 595, 596.
    The first section of the act provides that the plaintiff shall be compelled to sue drawers and indorsers, &c..in a joint action. Was it the intention of the legislature to destroy the right of action against one joint maker, who was not sued or prosecuted to judgment with the other 1 Such could not be the case. The title of the act imports only to compel plaintiff to sue indorsers in a joint action. The contract is not affected as to joint makers, and by a fair construction of the act, the only question involved where a joint maker is not sued with his co-makers, and a separate suit is afterwards commenced against him, is one of costs.
    In the case of Lillard v. Planters Bank, 3 How. 82, the court say, the act of 1837 was adopted to prevent a multiplicity of suits, and to avoid costs. It was enacted for the benefit of parties to the suit. It was never designed to change the character of the contract, or the rights and liabilities of the several parties to it, &c.
   Mr. Justice Clayton

delivered the opinion of the court.

The only question in this cause is, whether the act of 1837, (How. & Hutch. 595, sec. 33,) in reference to suits against drawers and indorsers, making it obligatory upon the plaintiff to sue them all jointly, extends to suits against the makers of a note, which has not been indorsed.

The statute does not in terms embrace them. By a previous law, the holder was authorized to sue any number of the makers in the same action; and it was provided that if more than one suit should be brought on the same instrument to the same court, for the purpose of accumulating costs, and without sufficient reason, it should be lawful for the court to order their consolidation, at the costs of the plaintiff. How. & Hutch. 594, sec. 28.

We are of opinion that this law is not affected by the act of 1837, as to instruments which have never been negotiated; and that this suit may be maintained by the plaintiff.

The action in this case was in a different county, from the action first brought on the same instrument against a part of the makers; and it was probably brought because there had been a failure to make the money by the first suit.

The judgment is affirmed.  