Phillips v. Jordon , 3 Stew. 38 ( 1830 )

By JUDGE CRENSHAW.

This action was brought under the act of 1828, defining the liability of indorsers, and which requires‘‘that in order to charge an indorser, suit must be instituted against the maker and indorser, in the same action, at the first Court to which suit can be brought; but if the plaintiff fail to join the maker and in-dorser, in the same action, he shall not have an action against'the indorser until he shall have prosecuted the maker to insolvency; and if he fail to sue the maker to the first Court as aforesaid, the indorser shall be discharged from liability.” The object of the law was clearly for the protection of indorsers, and no action can be maintained against the indorser after he has been discharged from liability, by reason of the suit not being commenced and carried on against him and the maker jointly, or by reason of not prosecuting a suit against the maker imthe first instance to insolvency. The manifest object of the Legislature was to subject the property and effects of the maker, in the first instance, to the payment of the debt, befare resort could be had to coerce payment from the indorser.

In the present case the action was commenced against the maker and indorser jointly, but the writ not being served on the maker, as to him the action was discontinued in the declaration. Under the statute, by operation! of law, this was a discontinuance of the entire action, because by the act of discontinuing against the maker, the indorser was discharged from legal liability, and the action could not be further maintained against him. But it is said that the judgment is informal and erroneous, because it is in form a judgment of non-suit, instead of ajudgment of discontinuance. In the case of Smith v. Seaton, in 1822. it was determined by a majority of this Court, that except in cases provided for by statute, the Court could not. order a non-suit against the consent of the plaintiff. Though I dissented from the judgment of the Court in that ease, I deem it not necessary to disturb the rule then set- ■ tied, in order to decide the case before us. Í must however remark, that if a Court can’instructa jury as in case of non-suit, I can see no good reason why the Court should not order the non-suit in the first instance. The record does not shew that the non-suit was ordered against, or without the consent of the plaintiff. To sustain the judgment therefore, it might be presumed that the plaintiff' did assent. But not relying on this ground, wc are of opinion, that the action was discontinued by discontinuing against the maker; and that in effect, the judgment on the discontinuance and the judgmentof non-suit are the same; therefore a majority of us are not inclined to reverse the judgment of the Circuit Court for a mere informality.