
    Whiting against King.
    DECEMBER, 1823.
    Debt will not Ke indorse vs. indorser.
    
      EDWARD KING declared against Nathan Whiling “ of plea that he render unto him f426TW> which to him he “ owes, and from him unjustly detains.” The declaration then proceeds in the usual form of assumpsit, on a bill single of Abraham Philips to Whiting for that sum,-assigned to King, and at the conclusion states an indebitatus assumpsit for the specific sum. Whiting demurred specially, the demurrer was overruled: he then filed several pleas denying that he indorsed the note or that he made it, averring that Philips had paid the amount, &e. The Circuit Court, taking no notice of the pleas, rendered final.judgment against him; as by default; on which he prosecuted a writ of Error.
    
      Ruffin for plaintiff.
    
      Crawford and Hitchcock for defendant in Error.
   Judge Crenshaw

delivered the opinion of the Court.

In this case there are nine assignments of Errors. It will only be necessary to take notice of the second, viz. “ That “ the plaintiff in the Court below pi'oceeded in an action of “ debt, when the defendant was liable only in assumpsit.”

The undertaking of the indorsee is collateral, not absolute. He is liable only in the event of the maker’s failing: to pay. The remedy against him is by action of assumpsit and not debt. This Error is not cured by our Statute of amendments. In this opinion the Court are unanimous, Judgment reversed.  