
    John Woodhouse et al., Administrators of A. Martin, deceased, vs. Ann Lee.
    L. sued S. & H. and P. & M. upon a joint note ; M. died during the progress of the suit, and before judgment; whereupon L., having brought the administrators of M. before the court by scire facias, dismissed the suit as against the other parties, and took judgment against the administrators of M.: Held, that the proceedings were regular and proper.
    
    A plaintiff in an action upon a joint note may discontinue the suit as to any one or more of the defendants, and proceed to judgment against the others.
    Where a party defendant who has pleaded to the action, dies during the progress of the suit, and his administrators are brought in by scire facias, the plea filed during the lifetime of the intestate will be the plea of the administrators, if they omit to file a plea to the scire facias.
    
    In error, from the Jefferson Circuit Court; Hon. Charles C. Cage, judge.
    Ann Lee sued in assumpsit in the court below, to its November term, 1839, the makers of the following note :
    $3882,20 Rodney, Miss. May 3, 1838.
    Twelve months after date, we, or either of us, promise to pay Messrs. Stuart & Smith, three thousand eight hundred and eighty-two ^ dollars, for value received, payable and negotiable in the Commercial Bank of Rodney.
    Smith & Henry,
    Indorsed John Woodhouse,
    Stuart & Smith. Alexander Martin.
    At the return term the defendants all appeared, and plead the general issue.
    At the November term, 1840, the death of the defendant Martin, was suggested, and a rule to revive the suit against his personal representatives entered; a scire facias issued accordingly, and in March, 1841, was executed on John Woodhouse and Richard Valentine, as the administrators of Martin. The cause was continued until May, 1842, when it was called for trial, and the suit discontinued as to Smith & Henry, and was revived against Woodhouse and Valentine, as administrators of Martin, and submitted to a jury to pass upon the issue joined; who found a verdict for the plaintiff for $4813,91 against the administrators, and the court below gave judgment accordingly. Whereupon the defendants in the judgment prayed and prosecute this writ of error.
    
      .John B. Coleman, for plaintiffs in error.
    1. We contend that it was error in the court below, to allow the plaintiff to discontinue as to the surviving makers of the promissory note, and to revive and take judgment against the representatives of the deceased one.
    By our statute, all bonds, bills, notes, &c., executed by two- or more, are made “ to have the same effect in law, as if they were joint and several.” H. & H. 578, sec. 9.
    What is the effect in law, of a joint and several contract 7 We understand it to be that the payee or obligee may at his option treat it either as joint, and sue all the makers or obligors, or as several, and sue but one of them. When, however, he has made his election, we apprehend that he is concluded by it, and that the rules of law applicable to the particular class of contracts in which he has thus elected to place it, must exclusively govern its construction, and control the remedies for its enforcement. If he chooses to treat it as a joint contract, it becomes at once subject to the law which governs joint contracts ; if as a several contract, then it is controlled by the law applicable to several contracts. In this case, the plaintiff made her election to treat the contract as a joint one, and evidenced her election by bringing suit against all the makers of the promissory note jointly.
    The rule of law is well settled, that where in a suit against several defendants upon a joint contract or liability, one of them dies before judgment, his death must be suggested, an abatement entered as to him, and the suit progress against the surviving defendants. Tidd's Prac. 1028 ; 1 Burr. 363 ; 2 Saund. R. 27, g. n. 4; 5 Term R.-577.
    2. The rule was taken to revise, and a scire facias issued against the administrators of Martin, under which they were brought into court, whilst the suit was still pending against the surviving makers of the promissory note. As well, it seems to us, might the plaintiff have instituted an original suit jointly against the surviving obligors or makers, and the representatives of a deceased one. Even if it were competent for the plaintiff to have proceeded under any circumstances, in this suit against the representatives of Martin, it surely was error to make them parties, and bring them into court before a discontinuance had been entered as to the survivors. Carth. 171; 2 Lev. 228'; 1 Chit. PL 37; Gould, 207.
    3. The administrators did not plead to the scire facias. After the suit had been discontinued as to the survivors, there was no issue to be tried; the case was nevertheless submitted to a jury. That this was error, has been settled by this court. 1 S. & M-662; 2 lb. 307.
    
      Thrasher and Sillers, for defendant in error.
    The exact nature and extent of a discontinuance or nolle prosequi in civil cases, does not seem to have been accurately defined and ascertained, until modem times. The authorities ■ upon this subject in the old books, are contradictory and confused. See 1 Saund. R. 207, n. 2.
    The statutes of this state, however, change the rule of the common law, and leave no doubt of the correctness of the judgment under consideration. In case of the death of one or more joint obligor or obligors, say the-statute, “ the joint debt or contract shall and may survive against the heirs, executors and administrators of the deceased obligor or obligors, as well as against the survivor or survivors.” H. & H. 578, s. 8. All promissory notes are made joint and several by statute; see H. &H. 578, s. 9; and in an action against • several makers, the plaintiff may discontinue as to some of the parties, and take judgment against the others. Lynch v. Commissioners of the Sinking Fund, 4 How. R. 377.
    When any suit or action shall be depending in any of the courts of this state, and either of the parties shall die before final judgment, the language of the statute is ; “that the executor or administrator of such deceased party, either plaintiff or defendant, shall have full power (in case the cause of action by law survive) to prosecute or defend such suit or action to final judgment; and the defendant is hereby obliged to answer thereto accordingly.” H. & H. 584, s. 29.
    The above recited statute, is almost a literal copy of the act of 1789, of the state of Tennessee, on the same subject; and the supreme court of that state, in the case of Simpson et ais. v. Young et al. 2 Humph. R. 534, decided that a joint action would lie against a surviving partner and the representatives of the deceased partner. The question before the court, was whether a joint action could be brought against the surviving partner of a partnership concern, and the representative of a deceased partner. The act of 1789, ch. 57, sec. 5, say the court, “ provides that a joint debt or contract shall survive against the representatives of a deceased obligor, and that in all cases of joint obligors, or assumptions of copartners or others, suits may be brought, and prosecuted on the same, in the same manner as if such obligations and assumptions were joint and several.”
    “ Moreover,” say the court, “ our practice is fixed and universal on the subject; and suits are constantly brought, and without question from any quarter, against the surviving obligor or partner, and the representative of the deceased; and judgments given against the one, de bonis propriis, and against the other de bonis testatoris.”
    
    This decision, which seems to be a literal interpretation of the Tennessee statute, and the dictates of common sense, not only settles the question in favor of the judgment under consideration, but goes beyond it, and decides more than is necessary to sustain the judgment before the court. But even if it was incorrect to discontinue against the surviving obligors, and to revive against the administrators of the deceased, yet our statute of jeofails would remedy the defect. The statute declares, that no judgment, after the verdict of twelve men, shall be reversed, for any mispleading, insufficient pleading, discontinuance, misjoinder of issues, &c. H. & H. 591, sec. 11. The case of McAfee v.‘Patter son et al. 2 S. & M. 593, is an adjudication upon this point. The administrators of Alexander Martin, deceased, not only submitted the case to the jury without exception at the time, upon the pleas formerly pleaded for Martin, but continued the cause one term, as an affidavit after the service of the writ of scire facias. Henderson v. Talbert, 5 S. & M. 109.
   Per Curiam.

The defendant in error sued four persons as makers of a promissory note ; pending the suit, one of the defendants died ; the plaintiff dismissed as to all of the surviving defendants, having first brought in the administrators by scire facias, and proceeded to judgment against the administrators of the deceased defendant, and this is assigned as error.

In the case of Henderson et al. v. Talbert, 5 S. & M. 109, we held that where one of three makers of a writing obligatory died pending the suit, the plaintiff might proceed against his administrators conjointly with the surviving defendants. That case seems to settle the principle of this. If the plaintiff may proceed against the administrators, he may dismiss as to any of the parties. They are but joint defendants. The argument that as the party elected to treat the note joint only by suing all the parties, and must so continue the suit against the survivors, after suggesting the death of one defendant, seems to be opposed by the statutes. All notes were joint and several. This provision was changed by the act of 1831, which authorized the holder to sue any one or more of the makers. H. & H. Dig. 594, sec. 28. All contracts of partners are declared joint and several. Ib. 596, sec. 29, 30. The 34th section provides, that if a drawer, &e. shall have died before suit brought, a separate suit may be brought again'st his representatives ; and the 40th section provides, that a plaintiff may have the right to discontinue his suit against any indorser or surety. These statutes enlarge the plaintiff’s privilege to the utmost extent, and seem to be sufficiently comprehensive to embrace the case at bar.

Another error assigned is, that there was no issue as against these defendants. All of the defendants had pleaded non assumpsit and payment, on which pleas issues were taken; these were the pleas of the intestate, and of course the pleas of the administrators. That they did not plead to the scire facias is a matter of no consequence; that was mere process to bring them into court to defend the original action; and it is to be presumed they had no answer to make to it which would defeat the action.

Judgment affirmed.  