
    M’WHORTER and COLLINS against DE KAY.
    ON CERTIORARI.
    Judgment may not be entered jointly against defendant, and his surety to appear, &o.
    The action below, was brought by De Kay against M’Whorter. On the return of the warrant, with the defendant in custody, an adjournment was had on the motion of the defendant, at which time, Collins became security for the defendant, M’Whorter’s appearance, by a verbal promise. On the day to which the cause was adjourned, the defendant did not appear, when the justice heard the cause in his absence, and rendered judgment not only against the defendant, but also against Collins, the surety. This was assigned for error.
   By the Court.

This is a joint judgment against Collins and M’Whorter, and is unquestionably wrong. Collins was no party to the action, [f he has made himself liable by his promise, he may be sued on it; but he has a right to be heard.

Judgment reversed.  