
    John Davis, vs. Charles Miller.
    
      Principal and surety to a joint and several promissory note were sued by separate actions. Jit the first court an appeal anee was entered for the principal, hut not for the surety. Upon affidavit by the principal, that he was unapprized oj the action •against his surety or he would have caused appearance to be entered, and that he had a considerable counter demand, which would be lost, plaintiff being insolvent, if judgment should go against the surety; leave was given to enter appearance at the second court.
    
    
      . This was an action on a joint and several promissory note, signed by John Miller and Charles Miller. Separate actions Were brought against them, ant! the writs lodged in' the sheriff’s office, 2d March, 1824.
    John Miller caused an appearance to be entered for him*» self, at March Term, 1824, but nó appearance was entered to the action against Charles Miller, the present defendant.
    At October Term last, for Pendleton district, a motion was made that an appearance might be entered for Charles Miller, founded upon an affidavit of John Miller, to the following effect, viz; That the deponent is the principal in the note on which the action against Charles Miller was brought; that he was not apprized that an action had been instituted oh the note; against his security, or he would have had an appearance entered in his behalf; stating as a reason why he would have done so, 1£ that any defence made by the deponent would be unavailing, if judgment should'be obtained against his security, as .he, the deponent, would thereby lose a considerable sum justly due to him from the plaintiff, who is not solvent-.” '
    'The presiding judge refused the motion, and the case was ordered to be referred to the clerk. It was now moved to reverse the decision thus made, and- that the defendant be permitted to enter an appearance under thé circumstances detailed.
   The opinion of the Court was delivered ly

Mr. Justice Gantt.

Motions of this kind, are directed to the discretion of tlid court, which should be exercised so as to preserve the spirit and intendment of't-he rule, without an essential violation of what is due to justice and right; Here a double action was brought, where one might have sufficed; and the principal irithte note, John' Miller, whose duty it was to protect h'is security from inconvenience and loss, has testified to facts which au-thorise the conclusion, that injustice will be done unless the indulgence asked for be granted by the Court;

The court aré of opinion that the application made for leave to enter an appearance in the Cáse for Charles Mil - ler. was reasonable under existing circumstances; The presiding. judge acquiesces in the view now taken by the courts; and the motion to reverse the-decision made below,, and for leave to enter an appearance for the defendant, Charles Miller, is allowed to prevail.

Harrison and Earle, for motion.

Davis and Lewis, contra.

.Richardson, Huger, and Johnson, Justices, concurred'.

Colcock, dissenting.  