
    Nathaniel Harrison, et al. vs. The Agricultural Bank.
    Where the process is made returnable to a wrong term of the court, it is a defect that may be amended on motion.
    Such a writ is a sufficient notice of the action, to the defendants served with it; and an appearance by them in a motion to quash the writ, will remove the necessity for amending it.
    The recitals of the record, that “ the defendants moved the court," &c. applies only to those parties to the record, who are served with process.
    Where there is more than one maker of a note sued, and the process is not executed on all of the makers, it is competent for the plaintiff to discontinue his suit, as to the party not served with process, and take judgment against the others.
    It is error to impanel a jury to pass upon an issue, when in fact there was no issue for its determination.
    In error from the Adams circuit court.
    This was an action of assumpsit brought by the defendant in error, against Nicholas J. Basley, Nathaniel Harrison, Anthony M. Dignowitty, and Charles A. Lacoste, upon a joint pomissory note, executed by Nicholas J. Basley and Nathaniel Harrison, payable to the said Anthony M. Dignowitty, and indorsed by him and the said Lacoste, to the plaintiff, for the sum of $500. The writ was issued on the 11th of May, 1841, was returnable on the “ fourth Monday of May instant,” and was returned executed on Nathaniel Harrison and Charles A. Lacoste on the 12th May, 1842. The other defendants were “not found.” At the appearance term, (May term, 1841,) is the following step taken, as recited in the record, to wit ; “ And afterwards to wit, at the May term, 1841, of the court aforesaid, came the said plaintiffs by attorneys, and the defendants by attorneys moved the court to quash the writ in this case, for wrong date of the return term; and the court having heard the argument of counsel, thereon doth order and adjudge, that said motion be overruled and not granted, and thereupon the said defendants being called, came not, but made default. Therefore the court not being advised of the damages sustained by said plaintiffs, doth order that judgment by default, and writ of inquiry be awarded as to defendants, Plarrison and Lacoste, and cause continued. At the November term, the plaintiffs discontinued as to defendants, Basley and Dignowitty, and a jury came, being duly impaneled and sworrr, the issue joined to try upon their oaths, do say, we of the jury, find that the said defendants, Harrison and Lacoste, did assume and promise in manner and form, as said-plaintiffs have alleged, and assess the plaintiff’s damage to the sum of $ 584 cents,” upon which finding, the court rendered judgment against them, from which judgment this writ of error, with supersedeas, is prosecuted.
    The plaintiffs in error assigned the following errors :
    1. The court erred in overruling defendant’s motion to quash writ.
    
      2. The circuit court erred in discontinuing cause, as to the defendants, Basley and Dignowitty.
    3. The circuit court erred in permitting the jury to be sworn to try the issue, when there was no issue.
    4. The circuit court erred in the judgment rendered.
    5. The circuit court erred in dismissing the suit, as to defendants, Basley and Dignowitty, they having appeared in the motion to quash, were before the court, and should have been called, and default entered as to them, either before judgment by default, or swearing the jury to try the “.issue.”
    
      Sanders & Price, for plaintiffs in error.
    The first question presented to the consideration of the court is, whether the circuit court erred in overruling motion to quash the writ for wrong date of the return term. The writ bears test on the fourth Monday in November, 1840, was issued the 11th of May, 1841. The sheriff is by it commanded to have the bodies, &c., “ at a circuit court to be holden at the court house, in and for the county of Adams, on the fourth Monday in May inst.” The statute directing the mode of issuing process, declares that, “ the style of all process shall be ‘ the State of Mississippi,” and shall be tested in the name of the judge assigned to the circuit, within which the same may issue, and bear test on the first day of the term next preceding that to which the same may be made returnable.” Howard & Hutchinson’s Digest, 576. Process should be certain at least to a common intent, if not to every intent; the contraction of words should not be allowed where they are of substance; the scholar may at the first blush understand the meaning of the words inst., the unlearned may not; but what does May inst. apply to? the May of 1840, or the May of 1841? The test is in 1840, the issuing 1841.
    
      2. We contend that the motion here to quash, was an appearance for all the parties, and that the judgment, by default and for writ o,f inquiry, against two, was irregular and erroneous, because Basley is the principal, and the other defendants were interested in having judgment rendered against him ; for, under our consolidating law, the money must be made of the principal defendant’s first. H. & H. 596-7. The default and dismissal were alike matter of surprise, and prevented the defendant from pleading.
    . 3. The court had no right to dismiss as to Basley and Digno-witty, on a return of not found. Had the defendants all been drawers of the note, or fnade jointly, and severally responsible, such right would be unquestioned ; but here Dignowitty stood before Lacoste, and without a return of, no inhabitant, or showing of inability to execute process upon him, it was the depriva-, tion of a right to Lacoste for the plaintiff to dismiss as to Dig-nowitty, and thereby throw the burthen upon him. The record says, “ came the defendants ”; it must mean all. Piad it been “ parties,” none would have béen included save only those served or who had more formerly plead. ,
    4. The finding of the jury was erroneous ; there was no issue, no matter submitted to a jury; for which several causes we insist that the judgment of the circuit court be reversed, and that the case be remanded for further proceedings.
    Eustis, for defendant in error.
    In this case there was a motion to quash the writ, because it called upon the defendant to appear at May instant, instead of 
      May next. The record shows that the May, when the parties made their special appearance, was the next May after the test; therefore the defendants were not misled by anything in the writ; they did not ask time to plead, and the court properly overruled the motion.
    This writ of error is, prosecuted by Harrison, o'ne of the makers of the note sued on. He alone executed the writ of error bond, the name of Lacoste, the indorser, being used only in the petition. It has been heretofore decided, under the joint action law, that it is irregular to dismiss as to a maker, and take judgment against an indorser, if the maker was served with process; but only an indorser can complain of such irregularity. It has also, been decided, that upon a joint note it is not error to dismiss as to one or more of the makers, whether served or not. The indorsement in no way varies the relation of the makers to one another, and we see nothing in the joint action law of which the maker can avail himself, or which should charge the rule fixed by this court, authorizing, so far as one of two joint makers of a note is concerned, the right to discontinue as to the other, whether that other has been served with process or not. But in the present case, the other maker, Bas-ley, was not served with process. The special appearance, for the purposes of the motion, supposing the general term “ defendants ” to include those not served, would not have authorized a judgment. The “defendants” were called, discontinuance entered as to those not served, and judgment by default entered against the others, which might have been made final at that term. A writ of inquiry was ordered, which was useless, but is no ground of reversal.
    As to the verdict, so much of it as purports a trial is sur-plusage, and the remainder is a good execution of the writ of inquiry, and is a proper basis for. the judgment.
   Mr. Justice Thacher

delivered the opinion of the court.

This was error to the circuit court of Adams county.

The action was instituted under the statute regulating the method of bringing suit against the several parties to a promissory note or bill of exchange. The writ was executed upon a maker and an indorser, and another maker and indorser were returned not found.” The writ bore test the fourth Monday in November, 1840, was issued on the eleventh day of May, 1841, and made returnable to the fourth Monday in May, instant. A motion tvas made by the defendants, by their attorneys, to quash the writ for a wrong date in the return term, which was overruled by the court below. The action was dismissed as to the maker and indorser, who were returned not found, and a judgment by default and a writ of inquiry awarded against the defendants served with process. A jury was impaneled, who were sworn to try the issue, and who found for the plaintiffs.

The defect in the process was clearly amendable, but the writ having performed its office, it was therefore not necessary to amend the defect.

-Upon looking through the'entire record and comparing its various parts, we conceive that the appearance upon tne motion had reference only to the parties in court by the process. Its whole language compels such an interpretation.

-The action was dismissed as to a maker of. the note, and who was not served with process. It has been determined by this court, where any of the makers of a note are not joined as defendants, not to be necessary to allege that such are dead, or nonresidents of the state, as a reason for the nonjoinder. 3 How. R. 78. Upon the return of non est inventus as to any such maker, by an obvious parity of reasoning, it is not error to dismiss the action as to him, because of the presumption thus created of his nonresidence, although it would be competent for the other defendants to rebut that presumption by proof of the contrary.

This court has held it to be error to impanel a jury to pass upon an issue, when in fact there is no issue for its determination. 6 How. R. 103. Joseph McAdams v. Mary A. Massey, January term, 1844. There was no issue before the jury in this case, but there was no occasion to have submitted any. The action was founded upon an instrument in writing, ascertaining the sum due, and the judgment should have been final on the last day of the term. H. & H. 616, sec. 9.

The judgment must therefore be reversed, and tins court, giving the judgment which the court below should have given, orders that judgment be entered up against the defendants for the amount of the promissory note sued upon, with interest from the date of the maturity thereof, &c.  