
    John M. Maury and Joseph W. Sessions vs. The Commercial Bank of Natchez.
    In a suit against makers and indorsers of a note, under the statute requiring such suits to be brought jointly, if process is not served on all, at the return term of the writ, and an alias is ordered, which is executed on the other defendants, to the next term, it is error to force the parties to a trial of the suit at that term, if those served to that term claim a continuance, under the statute of 1840, entitled an “Act to regulate the practice of the circuit courts.”
    Each defendant, in a joint,action under the act of 1840, regulating the practice of the circuit courts, is entitled to a continuance of the'cause to the term succeeding that to which he is brought into court, even though the other parties appeared and plead at a prior term.
    A continuance of a cause, under the act of 1840, regulating the practice in the circuit courts, to the term after the party defendant is-brought into court, is a matter of right, which such party defendant, may demand ; the circuit court has no discretion.
    In error from the Adams circuit court.
    This was an action of assumpsit, brought by the Commercial Bank of Natchez, against John M. Maury and Joseph W. Sessions,' makers, and Frederic Stanton, indorser, of two promissory notes. The declaration was filed on the 13th day of May, A. D. 1842, and writs of capias ad respondendum issued the same day, and were served upon Sessions and Stanton to the May term of the circuit court of Adams county for that year; the writ was not executed on Maury; whereupon an alias was ordered for him to the December term, 1842 ; which was executed to that term. At the May term, Sessions plead non as-sumpsit; Stanton filed no plea, and the cause was regularly continued.
    Maury appeared at the December term, and plead non assumpsit; the plaintiffs below discontinued their suit as to Stanton, .and submitted the cause to a jury as to Maury and Sessions, who brought in a verdict for the full amount .sued for.
    
      At the time of the trial, Maury applied for a continuance until the next term, because the capias was served upon 'him since the last term of the court; the court below overruled the application, and he excepted, and prosecuted this writ of error jointly with Sessions.
    
      Montgomery and Boyd, for plaintiffs in error.
    The only point in this case is, whether the appearance term is to be considered the term to which the writ is returned served on the first or last of the plaintiffs in error. The statute is express, as we think, that every defendant has the first term after process is served on him, to plead. It makes no difference that there are several defendants served witji process at different terms. The privilege is personal to all defendants, and whether sued separately or together the right is the same.
    
      Quitman and McMurran, for defendant in error.
   Mr. Justice ThacheR

delivered the opinion of the court.

In this action of assumpsit against makers and indorsers of a promissory note, process was returned executed as to all the defendants but one, at the term to which the suit was instituted. An alias summons was issued to the next succeeding term, for the defendant remaining unserved, which was then returned executed. Upon the case being called for trial at this last term, the defendant summoned to appear at that term, prayed a continuance by virtue of the act of 1840, regulating the practice of the circuit court. The motion was overruled, and verdict and judgment were had against all the defendants.

This statute proceeds upon the supposition, that all the parties defendant are in court, and its design seems to be twofold. First, to separate in every case, by a lapse of one term, the determination of legal questions growing purely out of the pleadings, and the trial of such issues as require the intervention of a jury ; and secondly, to afford all parties, having then made up the issues on which the case is finally to be tried, the delay of a term to prepare for trial. In cases where all the defendants are not served to the terra of the suit’s institution, the very objects of the statute, in using the phrases, the return term of the writ and the return term of the action,” show its meaning to point to that term wherein the writs in the action are all returned served, or at which all the parties have entered an appearance. The issues on which the case is finally to be put to a jury cannot be made up until all the parties defendant are in court, and the act provides, that when so made up, the cause shall stand for trial at the succeeding term. In this case, the action is joint, and one in which the defendants could not sever in their pleas to its merits, though each might have a distinct ground of defence, nor could any judgment be had until either all were served with process, or a dismissal entered as to any not served. Each defendant is therefore entitled to the postponement afforded by the statute to prepare a defence which, in his particular case, may differ from that of his co-defendants. We must consider this a personal privilege of each defendant, or limit the construction of the statute to a degree that will take from it its chief utility. The continuance in this case having been a matter of right by law, the court had no discretion over it, and erred in refusmg the application.

Judgment reversed, and a new trial awarded.  