
    *Benjamin H. Buckingham v. Wm. McCracken.
    The judgment, non obstante veredicto, can only be given for a plaintiff. The remedy for a defendant is to have the judgment arrested.
    The statute of 1844, vol. 42 Stat. 72 (providing for a joint .action against all the makers and indorsers of a note or bill, and authorizing a judgment against one or more of the defendants, although one or more of the defendants might make a successful defense), is applicable to a case wherein suit is brought on a bill of exchange, purporting to be drawn by A B, C D, and E If, on G H, cashier of the Girard Bank, Philadelphia, in favor of said A B, and by A B indorsed to the plaintiff. The fact- that A B was a maker, does not affect his character as payee and indorser so as to withdraw the case from the operation of the statute cited.
    The object of the statute is, so far as the action and judgment on such paper are concerned, to abolish the distinction between makers and indorsers, as it existed in common-law actions.
    Error to tbe common pleas of Muskingum county.
    The facts and questions appear in the opinion of the court.
    
      Charles C. Converse, for plaintiff in error, submitted a printed argument, from which the following passages are taken :
    The “ act to regulate the practice of the judicial courts,” passed March 12, 1844 (42 Ohio U. 72), introduced a new mode of proceeding on indorsed negotiable paper.
    Prior to its enactment, the holder of indorsed paper was not obliged to unite in one action all the parties to the instrument. Nor could he, if he desired to do so, join in one action all the parties liable to him as indorsee. The judgment, as to the parties defendant, must pursue, with strict exactness, the original writ. A failure to fix, on the trial, the original joint liability of all against whom process issued, resulted, necessarily, in a failure to recover against any of them.
    But it has, from a very early day, been the favorite policy of the legislation of Ohio to relieve parties in this state of the inconveniences and delays resulting from the strictness of the common-law forms of pleading. The liberal policy, in regard • to allowing amendments in judicial proceedings, ^introduced at successive periods by the legislature, and enjoined upon courts, well illustrates the spirit in which our legislature studied to relieve the practice from the delays, disappointment, and vexation incident to the common-law procedure. And as the offspring of this same-liberal policy—seeking to dispense justice cheaply and speedily—» we have the act already referred to, under which the original suit was brought.
    This act, providing, as it does, that “ if upon the trial, any one or more of the defendants ”—whether makers or indorsers—•“ should make a successful defense, the court may nevertheless render-judgment against the balance of said defendants,” authorizes, in the judgment, a departure from the writ, thus changing the common law, in this respect.
    The legislature unquestionably designed to place the joint action upon the indorsed bill or note, given by the statute, in so-far as regards the parties against whom a recovery might be had, upon the same footing upon which actions for tort have always stood—permitting the plaintiff to recover against such of the defendants as, by his evidence on the'trial, may be found liable to him, although he may not establish the joint liability of all the-parties sued, in consequence of his failure to connect all with the transaction out of which the suit originates.
    There never was any reason, except of the most technical nature—none affecting at all the substantial right or justice of the-case—for the distinction that obtained in the earlier common-law practice, as to the effect of the misjoinder of defendants in actions sounding in contract, and in those against tort-feasors.
    
    But it is by no means certain that in a joint action at common law against more than one defendant, the plaintiff can not, according to the modern practice, recover against part only of the defendants. Even the Supreme Court of the United States—a staid tribunal, not generally supposed to be unduly moved by that spirit of innovation, which takes little heed of the established order of things—finds, after very *fuli discussion and investígation, nothing in the rules of the common law,properly understood and applied, to prevent in actions ex contractu a severance in the-judgment, where the defendants have severed in their pleadings. In the case of Miner v. Mechanics’ Bank of Alexandria, 1 Peters’ Sup. Court, 47, that court decided—supporting its decision by an-elaborate opinion, pronounced by Mr. Justice Story—that when, in an action on a joint and several bond, the defendants sever in their pleadings, and a verdict is rendered against some of them, •the plaintiff is entitled to judgment upon the verdict against such •defendants, provided he enter upon the record a nolle prosequi as to the others. And this, too, although the nolle prosequi bo not ■entered until after judgment.
    See also Toby v. Clafin et al., 3 Sumn. 379; Newman v. Hope et al., 2 Miles, 142.
    If, from considerations of practical convenience in the administration of justice, and in deference to the general analogies of the law, that high court felt itself called upon, by the more liberal ■spirit of the judicial practice of that day, to so mold matters of form as to secure, in this respect, the substantial purposes of justice, may I not reasonably indulge the hope, that, at this day, when .all judicial tribunals, as well as the community at large, have grown restive under all mere forms, not essential to the attainment •of the ultimate right, this court would, if the question now stood before it, resting only upon the same general considerations and .analogies, exhibit a spirit and policy not less liberal than that manifested by the Supreme Court of the United States.
    But the question does not now present itself, for the determination of this court, upon these considerations and analogies alone. 'The statute under which the original action was brought—if not imperatively enjoining upon the court a severance, such as now claimed by the plaintiff—certainly, in terms, permits the sever.ance. Nay, more; the spirit in which that act was conceived, and which characterizes *all our remedial legislation, invites to ■that construction which will save the substantial rights of a plaintiff from a mere formal objection, while, at the same time, it gives •to each defendant the benefit of every substantial defense, tending to the speedy attainment of that which is always so desirable in a court of justice—the final determination, upion the merits, of all •controversy between the parties.
    The construction of the statute, which the court of common pleas .applied to this case, appears to be against the clear intent of the legislature. It deprives the statute of part of its beneficial operation, and has not, for its recommendation, a single consideration ■of practical utility or convenience, promoting, in any degree, the •substantial rights of the parties. So far as the defendants are concerned, they are not deprived of any of the safeguards at all essential to the protection of all their just rights, for each one may ¡separately take and sustain ground of defense, going to the merits of the case, of which he could avail himself, in any other proper form of action against him, upon the same instrument.
    Indeed, it is not to be supposed that the court of common ploaswould have ever applied a construction so technical and rigid, if that court, before the judgment was rendered, could have had the-opportunity of seeing the case of the Clinton Bank of Columbus v. Hart, 19 Ohio, 372. Although that case had been previously decided, yet the volume of the reports containing the opinion had: not been published.
    The question whether the statute giving the joint action and. severance of judgment was confined to indorsed paper, or extended also to suits between the original parties upon paper not indorsed, but payable directly to the plaintiff in the suit, was the great question in that case.
    And upon that question the court in bank decided that this statutory remedy was confined to indorsed paper. The suit by payee-against makers, therefore, not falling within the provisions of the statute, the court very properly held *that the bank was not entitled, in the original suit, to the severance of judgment allowed by the statute in suits upon indorsed paper; and because the bank failed to show itself upon the record as suing in the character of indorsee of the note—and upon that ground alone—the court sustained the demurrer to the scire facias.
    
    It is true, that the court also decide that the act of 1844 provides for suits by individuals, holding paper negotiable to them by indorsement, while the analogous act of March 8,1845 (43 Ohio Stat.. 67), provides the like remedy for banks, upon the like description of paper. This consideration, however, in no way affects the decision, as an authority upon the question of severance in the judgment now presented in the case before the court.
    If the construction of the statute, as claimed by the defendant in error, in the present case, be the true one—that the plaintiff suing as indorsee of a negotiable bill of exchange, and uniting as defendants, the drawers with-the indorser, must fail entirely in the action, as to the drawers, if not also as to the indorser, unless on the trial he establish the joint liability of all the parties charged as drawers of the bill—both -court and counsel would have been relieved of all the discussion that attended the case of the Clinton Bank v. Hart. The court, if willing to adopt any such construction, would at once have said that it was needless to consider the-•question, whether the original payee, as well as an indorsee, might maintain the joint action under the statute; for, according to the ■construction now claimed by the present defendant, if the bank had been the indorsee of the note, and as such clearly entitled to the statutory remedy, it could not have recovered, even as such indorsee, against Samuel M. Hart, charged as one of the four joint makers of the note, either on the original suit, if he had been served with process, or in the scire facias, because of the finding ■of the jury as to Crim and William Hart, also charged as comakers with himself and Jesse B. Hart.
    *No one reading the opinion of Judge Hitchcock, can •doubt that the case would have been very summarily disposed of, without touching the question so elaborately discussed, if the court could have entertained the strict construction of the statute urged by the present defendant—precluding an indorsee, suing under the •statute, and uniting as defendants two or more makers with his indorser, from recovering against such of the makers as might, on the trial, be found liable for the payment of the note, although one ■or more of them might, upon the separate finding of the jury in their favor, upon their severed pleadings, obtain their separate judgments against the plaintiff, for their respective costs.
    It was not, then, because of any objection, under the statute, to permitting a party, entitled to sue in virtue of its provisions, to recover against some of the drawers or makers, while he failed as to others, that the court held that Samuel M. Hart could not have been made liable in the original action. The common-law rule, as to the consequences of different findings of the jury, upon- severed pleadings, was supposed not to be at all applicable to the statutory proceeding; for this statute authorizes what the common law forbade—a severance in the judgment, so as to conform the judgment •rendered by the court to the verdict rendered by the jury; and thus, in a single proceeding, make an end of controversy between •all parties. The whole current of Judge Hitchcock’s opinion shows that the only question deemed essential to the full decision of that case, was whether the bank, as plaintiff, possessed the character, requisite under the statute, to entitle it to the joint action and the severed judgment.
    It was not at all questioned, in so far as the defendants were concerned, that if the plaintiff were entitled to the benefit of the statutory remedy—if it had been an indorsee, suing “ all the makers 
      
      and indorsers,” it could have recovered judgment against the two makers, Jesse B. Hart and Samuel M. Hart, in the original action, if the latter had been served with the original process, although it might have failed, as to Crim *and William Hart, the other two makers; and so upon the scire facias Samuel M. Hart have been made a defendant.
    The statute was designed to be beneficial to all parties—to plaintiffs as well as defendants. The latter are relieved from the costs of several separate judgments against them, upon the same paper. The former from the costs and delay arising at common law, from the failure to recover against all whose names appear upon the paper as drawers and indorsers. No practical inconvenience can, in any extent, result to either party from this change in the law. The design is to give, in the one suit, without regard to objections as to form : to the plaintiff, judgment against all, who, in any other form, might be subjected to judgment—to the defendants, all benefit of every defense going to the merits of the claim.
    Let, then, the proceeding be a statutory proceeding throughout, permitting the holder of indorsed paper to sue all whose names appear upon the paper, when, in its circle of business, it comes to his hands. As indorsee, and so no party to the original drawing of the bill, or making of the note, he may well presume, when afterward, in its round of negotiation, it is indorsed to him, that all whose names appear as drawers and indorsers, are liable in that character in-which their names stand upon the paper. He does not, under such circumstances, act without reasonable caution in suing all as liable. He may not know, until the result of a trial establish the fact, by evidence dehors the paper, that all whose names are attached to the instrument, as drawers or indorsers, are not liable.
    Why, then, in the absence of anything in the statute imperatively requiring it, turn a plaintiff round to his fresh action, under the common-law rule, when the court may now, under the statute, sever its judgment and at once accomplish, with the most careful regard to the just rights of the defendant, all that a second suit could attain ? Butcher’s Adm’rs v. Bedford, 8 Humphrey, 405, supports this construction of the statute.
    *No notes of any other argument in the case were furnished to reporter.
   Caldwell, J.

This is a writ of error to the common pleas of Muskingum county, reserved from the district court for that county. The suit in the common pleas was brought on a bill of exchange-for $1,500, purporting to bo drawn by David B. Little, ¥m. McCall, Jesse Snodgrass, and William McCracken, on N. D. Lewis, cashier of the Girard 'Bank of Philadelphia, in favor of David B.. Little, and by him indorsed to the plaintiff, Benjamin H. Buckingham. Suit was brought against all the drawers of the bill, David B. Little being both drawer, payee, and indorser. William McCall was served with process. A writ was issued to the sheriff of Guernsey county, and served on Wm. McCracken, who was a, resident of that county; as to David B. Little and Jesse Snodgrass, the return was not found. McCall and McCracken, the only parties brought into court, severed in their pleading; each filed the, general issue, with an affidavit averring the truth of his plea, Mc-Cracken admitting in his affidavit that he signed the draft, but denying that his co-defendant, McCall, did. The case was submitted to the jury, who found a verdict in favor of McCall and against McCracken. The plaintiff moved for judgment on the verdict against McCracken, which the court refused, and proceeded to enter up a judgment in McCracken’s favor, non obstante veredicto. This ruling of the court is alleged by the plaintiff in error to be-erroneous. In the first place, we would say that, in our opinion the court erred in entering up judgment for the defendant non obstante veredicto. This is a judgment that can only be given for a plaintiff. The remedy for a defendant is to have the judgment arrested ; he can go no further. Smith v. Smith, 4 Wend. 468; Schermerhorn v. Schermerhorn, 5 Wend. 513. But the question to which counsel have called our attention, is, whether, from the record, the plaintiff had a right to judgment on the verdict against McCracken. The suit in this ease was brought, and *issought. to be maintained, under the statute of 1844 (42 Ohio Stat. 72), providing for a joint action against all the makers and indorsers of a note or bill, and authorizing a judgment against one or more of the defendants, although one or more of them might make a successful defense.

The defendant in error contends that the present case does not come within the purview of this statute; that the statute only applies to paper where there are both makers and indorsers. Little, who indorsed the bill, was a maker, and can not be considered as. an indorser within the meaning of the law. It is true, Little was a maker. He was also the payee of the bill. He transferred his title by indorsement to the plaintiff. Ilis indorsement was necessary to convey such title. The plaintiff had no right to sue, except as indorsee. The bill was indorsed paper, and comes, as we think, clearly within the provisions of the statute of 1844. It is true, there was no recovery had in this case against any defendant as indorser. This we do not, however, consider material. The object-of the statute clearly is, so far as the action is concerned, to do away with all distinction between the makers and indorsers. They are to bo sued jointly in an action for money had and received. The judgment and its effects are to bo the same without any reference to whether they are makers or indorsers. One object of the statute was, to enable a party to join the makers and indorsers of' a note or bill in the same suit. Another was, to enable a plaintiff to recover against one or more of the defendants when he failed as to part of them; neither of which could be done at common law. It is said, however, that the court did not obtain jurisdiction overMcCracken, the defendant, he being served in Guernsey county by a summons issued from Muskingum county; judgment being rendered in favor of McCall, the only defendant living in Muskingum county, where the suit was brought. What remedy the defendant, might have had, if judgment had boon taken against him by default, or if he had, in the first instance, interposed a plea to the jurisdiction, it is not necessary now to determine. He has waived all objection *to the process by appearing and pleading issuably to the action, without any objection. We are of opinion that the action was properly conceived; that the court obtained jurisdiction over the person of the defendant, McCracken; and that, for any thing appearing on the record, the court should have entered judgment on the verdict, and consequently that the judgment of the court, non obstante veredicto, is erroneous. The judgment of the-court of common pleas will therefore be reversed, and the cause remanded.  