
    GAYLE and HUESTIS, adm’rs VS AGEE.
    
      As to actions surviving against defendant, where a co-defendant dies.
    
    
      As to discontinuance.
    
    1. Where a suit is commenced against two, upon a promissory note, and one of the defendants dies, the action should be prosecuted against the survivor.
    2. In such case, it is .error to revive the suit against the representatives of the deceased party, and to proceed to judgment against them.
    3. Where suit is thus commenced against two, and upon the death of one it is prosecuted against his representatives, without noticing the survivor — a discontinuance as against the latter ensues.
    Error to the Circuit Court of Wilcox county.
    Joseph Agee, the executor of Noah Agee, commenced an action of assumpsit against John Gayle, and Matthew Gayle, to October term, eighteen hundred and twenty-seven.
    The-cause of action was a joint and several note, signed by J. Q,. Guild, Matthew Gayle, jr. and John Gayle.
    At Fall term, eighteen hundred and twenty-eight, the death of John Gayle was suggested, and a scire facias awarded to Matthew Gayle and J. W. Hues-tis, his representatives. These administrators having appeared and been made parties, the case was continued down to Spring term, eighteen hundred and thirty-one, when judgment was rendered by de? fault, against Matthew Gayle and Heustis, the ad-mintrators of John Gayle.
    
      Gaijh & Vandegraaffe, for the plaintiff in error.
   HOPKINS, C. J.

— This was .an action of assump-sit upon a note, for the payment of money.

The writ was executed upon Matthew Gayle and John Gayle, two of the makers of the note. rI he death of John Gayle was afterwards suggested, ar.d his administrators, Matthew Gayle and Jabez W. Huestis were made parties to the suit, by scire facias. The judgment was rendered against the administrators.

There is no declaration in the ease, and for the want of one, the judgment would be reversed.

As the cause of action survived against Matthew Gayle, the action ought to have been conducted against him alone, after the death of the other defendant. It was error, to make the administrators of J0lln Gayle, parties to the suit.

As no step was taken against the surviving defendant, after the death of Gayle was suggested, and the suit was conducted afterwards against his administrators, the action was discontinued against the surviving defendant.

The judgment is reversed.

GOLDTHW AITE, J., not sitting. 
      
       aí'c. Dig. .259, §4.
     