
    Joseph Brunson vs. Willis M. Lea.
    Under the statute of 1837, requiring all the parties to a note to be jointly sued, the plaintiff cannot, after service of process on both maker and indorser, discontinue his suit as to the maker, and take judgment by default against the indorser.
    In error, from the circuit court of Marshall county.
    Willis M. Lea sued Roger Barton, as maker, and Joseph Brunson, as indorser, upon a promissory note, in a joint action under the act of 1837. The declaration was filed, and the process executed on both parties, to the September term, 1843, of the court, at which term the plaintiff discontinued his suit against the defendant, Roger Barton, and the court below gave judgment by default against Brunson, who prosecuted this writ of error.
    
      Trotter and Stearns, for plaintiff in error.
    This was an action commenced below by the defendant in error, upon a note executed by Roger Barton, and indorsed by the plaintiff in error, upon whom as well as upon Barton, the writ was executed. ' At the appearance term, no plea was filed by the plaintiff in error, whereupon the defendant in error entered a discontinuance as to Barton, and took judgment by default against the plaintiff in error.
    This dismissal is the error of which we complain, and for which we ask a reversal of the judgment below, upon the authority of the case of Wilkinson & Turney v. Tiffany, Du-vall 6f Co. 5 How. 411. .
    
      Totten and Bradford, contra.
   Per Clayton, J.

This case is, in all respects, like that of Wilkinson & Turney v. Tiffany, Duvall & Co. 5 How. 411. The judgment, being in opposition to the rule there laid down, will be reversed, and the case remanded.  