
    William Boush vs. John P. Smith.
    In an action against the makers and indorsers of a promissory note, under the act of 1837, it is error to discontinue the suit against the makers, and take a judgment by default, against the indorsers.
    In error from the Carroll circuit court.
    The facts of the case are stated at sufficient length in the brief of counsel.
    
      Baine, for plaintiff in error.
    This was an action instituted against William P. Bryan, George K. Morton, and A. C. Baine, as makers, and the plaintiff in error, (Boush) as indorser, of a promissory note, under the McNutt statute. Process was executed on all the defendants. At the trial the suit was discontinued, as to all of the defendants, save the indorser, (Boush) against whom judgment by default was taken, and who brings this writ of error.
    This is the only error complained of, and is sufficient to reverse the judgment. See the order of dismission at page 7, of the Record. It is laid down, in 5 Howard’s Reports, in the case of Wilkinson, et al. v. Tiffanny, et al., page 411, that it is error to dismiss as to the drawers, and to proceed against the indorser.
   Mr. Justice Clayton

delivered the opinion of the court.

The defendant in error instituted an action against four persons in the court below, as the makers and indorser of a promissory note, the plaintiff in error alone being an indorser. The writ was executed on all the parties, but the plaintiff dismissed the action as to the makers of the note, and took judgment against the indorser only, who brought the cause by writ of error to this court.

This mode of proceeding is obviously against the statute, and has heretofore been decided to be erroneous. Wilkinson, et al. v. Tiffanny, Duvall & Co., 5 Howard, 411.

The judgment was rendered against Boush, by default; all we can do is to reverse it,, and remand it to the court below.  