
    Malone & Co. v. Hathaway.
    5. In an action against tlic indorser of a promissory note, under the statute of 1812, judgment by default final may be rendered, without the intervention of a jury*.
    5J. A judgment in an action of assumpsit, will not be reversed because entered for debt and damages, instead of damages only.
    Ose Scales made a promissory note for $2S8, dated the -’•Oth of August, 1826, and payable to Malone & Co. one day after date, in current money. Majone & Co- on the of September, indorsed the note to Hathaway; and in October 1826, Hathaway brought an action of assump-s>t ‘in Madison Circuit Court, against Malone & Co. as in- ■ The declaration was in the usual form; no plea was filed by the defendants, and at May term 1827, a judgment by nil dioit was rendered for' the plaintiff, in form of a judgment of debt, for $2SS debt, and @11 damages.
    It is assigned for error by Malone & Co., the plaintiffs in error, 1st, that á jury should have assessed the damages. 2nd, that the judgment was in debt instead ef as-sumpsit.
    Hutchison, for the appellants.
    The statute authorizing judgment final to be rendered without the intervention of a jury, does not embrace this ease; it applies to and authorizes such judgment only in cases where the instrument ascertains the sum due; and therefore does not apply to indorsers; for they are not always to be charged to the full amount of the note, and that amount is not the criterion by which the quantum of damages is ascertained; it is the consideration given for the indorsment, which does not appear on the paper, and therefore it does not ascertain the sum due. - He cited Moreland v. Ruffin,
      
       Phillips v. Malone.
      
       The indorsment is not of itself the foundation of an action; it is merely matter of inducement.
    Bkandon, contra,
    was stopped by the Court.
    
      
      
         Laws of Ala 70.
    
    
      
       Minor’s Ala. R. 18.
    
    
      
       Ibid. 110. Ibid. 68, 126, 286.
    
   By LJPSCOMB, Chibs' Justice.

The only point insisted on by the plaintiffs in error is, that the judgment by nil dicit should not have been final, but that a jury should have been empannellod to assess damages. It is said that this case does'not come within the provisions of the act of assembly makingjudgment by default, non sum informa-tus, or nihil dicit final, when the action is founded on any writing ascertaining the sum due; that the writing here is not the foundation of the action, but only an inducement to it. If the suit had been between the maker and the payee, there would have been some plausibility -in-the objection taken by the plaintiffs in error. It was formerly held that a promisory note did not of itself import a consideration, and therefore could not be the foundation of an action; but this doctrine has not been sustained by this Court, and we have held, as well under the influence ■of modern English adjudications, as our own statute, that promissory note does, of itself, imply a sufficient considé-' ration to support an action. >

The indorsement of the note put it in circulation, and made it a bill of exchange. An indorsement on a bill at all times implied a sufficient consideration; every in-dorser is a new drawer of the bill, and his indorsement is a sufficient foundation for an action, if the necessary steps to charge him have been previously taken. The judgment by nihil (licit is an admission at law that all those requisite steps had been taken; and acknowledges the cause of action. We are all of opinion that the judgment by nil (licit in this case was clearly within the statute, and final without the necessity of resorting to a jury to assess damages. It is further assigned for error that the action is assumpsit, and the judgment in debt. It has been often decided by this Court, under our statute of jeofails, that if the amount is correct; it is no ground of reversal though it should be Improperly called debt, or damage.

Judgment affirmed.  