
    George T. Bartlett, plaintiff in error, vs. Harrell N. Byers maker, and Thomas J. Saunders, indorser, defendants in error.
    The maker of a note, and one endorsing it, “to be liable in the second instance,” cannot be sued together in the same action.
    Complaint. In Butts Superior Court. Tried before Judge Speer, September Term,{1868.
    
      This action was upon a promisory note, made by Byers, and endorsed by Saunders as follows : “ I endorse the within in the second instance, for value received, Sept’r. 15th, 1860.”
    The suit being against the maker and endorser jointly, counsel for the latter moved to dismiss it as to him.
    The Court granted the motion, and this is assigned as error.
    Bíjitlett & Pkoudfet, for plaintiff in error.
    Heudeiok, for defendants.
   Lumpkin, C. J.

I feel strongly inclined to sustain this action. I can see some decided advantages growing out of such a practice. I hope the Legislature will make it lawful. The endorser is usually more interested than the holder of such a note in contesting the insolvency of the maker ; and the verdict of the jury might be so moulded under the Code, as to first pursuing the property of the maker, the adjustment of costs, &c., as to make it work well, as on suits in administrator’s and guardian’s bonds. But the difficulty is, the endorser is not liable to jan action, until the insolvency of the maker is established, and he notified of the fact. To institute a suit agkinst him before this, would seem contrary to principle and his contract. He ought not to be harrassed with a suit before this condition precedent is performed.

Upon the whole, however reluctantly, we feel constrained to affirm the judgment.

Judgment affirmed.  