
    Planters’ Bank vs. Tappan, et als.
    
    An action of debt by an endorsee, will He against the maker and endorsers of a promissory note, jointty.
    The Planters’ Bank instituted an action of debt in the circuit court of Williamson county, on the 28th day of = November, 1838, against B. S. Tappan, M. P. White W. O. Perkins and C. D. Parrish. At the March term, 1839, the plaintiff filed its declaration, in which it was avered that Charles D» Parrish and Moses P. White, on the 25th day of May, 1838, executed a promissory note of that date, binding themselves to pay Benjamin S. Tappan or order, the sum of $2,250, four months after date, at the Planters’ Bank of Tennessee, that said promissory note was delivered to Tappan, who endorsed it and delivered it to Charles D. Parrish and William O. Perkins, that said Parrish & Perkins endorsed the note and delivered it so endorsed to Douglass, Wood & Co., and that Douglass, Wood & Co. endorsed and delivered the note so endorsed to S. Bell, who endorsed and delivered it to the Planters’ Bank, the plaintiff in this action; that on, the 28th day of September, 1838, the said note was presented at the Planters’ Bank for payment, and payment demanded, and was then and there duly protested, of which defendants, on the same day, had due notice.
    The defendants, by their attorney Alexander, filed a general demurrer to this declaration, and the plain tiff joined in demurrer.
    The cause came on for argument at the July term, 1839, and being argued, the court being of the opinion that the matters al-ledged in the plaintiff’s declaration were insufficient in law to enable the plaintiff to maintain the action, sustained the demurrer, and ordered that defendants go hence, &c.
    The plaintiff appealed in error to the supreme court.
    
      Trimble, for plaintiff in error,
    cited the act of 1837, ch. 5.
    
      Alexander, for defendants in error.
    An action of debt will not lie against a guarantor or endorser. 1 Chit. Pi. 129; 2 B. & Pul. 78: Tappan vs. Campbell, 9 Yer. Rev. 436.
    The reason, why debt will not lie against an endorser is, that an endorsement is “an indirect, collateral or contingent liability, created, not by the terms of the instrument, but by operation of law.” Mitchel vs. Miller, Meigs’ Rep. 510: and debt will not lie on such an agreement, as was decided by this court in 9th Yer. 440.
    A joint action would not lie against the maker and endorser of a promissory note previous to the act of 1837, ch. 5, as was decided in the case of Watson vs. Hoge, 7 Yer. Rep. 344. That statute does not authorise debt to be brought jointly against the maker and endorser of a note; it only gives a joint action, and leaves the particular kind of action to be brought according to the law as it stood before the passage of that statute.
   Tuemey, J..

delivered the opinion of the court.

This is an action of debt brought' by the plaintiff in- error vs. White & Parrish, as the makers of a promissory nóte, and'Tap-pan1 & Perkins as endorsers thereof. The declaration is demurred to, andfheflemurrer' was sustained by the circuit court', upon which a writ of error is prosecuted to this court. It is now contended in'support of the judgment of the court below, that an action of debt1 will not lie against the endorser of a" promissory note or bill of exchange, and, therefore, a joint action of debt cannot b;e maintained against'the maker or drawer, and ah endorser. The act of 1837, ch. 5; gives a joint action against the maker’s of inland bills of exchange, promissory notes, and writings obligatory, and the endorsers thereof.

' It is true, this statute does not specify the form of the action, and it becomes necessary for the court to‘determine, whether debt can be maintained. We think it can; because debt'wiM'un'qéstionably lie against the makers, or drawers of promissory note's, or bills' of exchange;, and when a statute authorises others to be joined with them without exempting them from the same form of action, or specifying a different one, there can be no' reason for forcing the plaintiff to resort to another. We do not mean to determine in this case, whether debt will lie against an endorser sued alone or' not; but for argument sake, suppose it would not, and that an action on'the 'case','is the proper remedy. Yet, upon what principle is it; that 'where endorsers and makers are united in 'the' same' suit; the character, in which the endorsers'stand, shall 'dictate'' the form of’action, in preference to that of the makers? None, that we can sefeV Oheform- of action being proper'fór thb makers, and another for the'‘endorsers, we think, gives the plaintiff a right to select that form; which he supposes will best advance his interest. In this' case he'has selected the action of debt, and in so doing, we think' he has committed no error.

Wé, therefore, reverse the judgment of the circuit court,'and proceeding to render such judgment; as the court'below'should-have- pronounced, overrule the demurrer, and give judgment for the plaintiff, for the debt, interest and costs.  