Daves v. Mahorner , 41 Miss. 552 ( 1867 )

Ellett, J.,

delivered the opinion of the court.

This action was brought against Haves individually, and as executor of Hatch, on a joint note given by Daves and Hatch. Judgment by default was taken against “ the said defendant,”-'merely; and it is assigned for error that no judgment was entered, to be levied de bonis testatoris.

The judgment was properly taken against Daves individually, for he was a joint-maker of the note, and liable to a judgment de bonis jorojoriis. It was no prejudice to him that judgment was not also rendered against him as executor, to be levied de bonis testatoris. By not taking such judgment, the plaintiff discontinued his suit against the estate of Hatch, as he had a right to do. No execution can issue on the judgment as taken, except against Daves individually. The estate of the deceased maker of the note is not at all affected by it.

Let the judgment be affirmed.