delivered the opinion of the 1 court. This case was before os and was remanded, at March term, 1823, Vol. 3, 27!. __ > Judgment was given against Trepagtfler, and tin? mortgaged premises were decreed to be sold. The defendant, Livingston, appealed.

The record shows the plaintiff gave in evidence the records of the following suit:

Williams vs. Weimprender, on which he had judgment.

Ferret and Livingston vs. Weimprender,

Herman deposed, he was well acquainted with A. Trouard, the endorser of the note wind, am! has seen him sign frequently, and believes the signature on the back of the note to be his. He has not, however, seen him write since 181 l.

The defendants introduced the evidence of the suits,

Williams vs. Trouard.

Ferret and Livingston vs. Weimprender.

*343They also introduced an instrument, by .... . . , , , 1 , , . which the plamtifi acknowledged the receipt from Trouard, in deposit, as a collateral security of the note sued on.

The failure of Weimprender was admitted.

The appellant urges that,

I. The suit is wrongfully brought; as it is not an hypothecary one, and the plaintiff had no direct action against the defendant, Trepag-nier.

II. The proof is irregular, illegal, and insufficient.

ML The plaintiff can in no case sue aloné, and maintain an action-against Weimprender, when there is a concurso to which he is a party.

We are of opinion that the appellant cannot complain of a judgment obtained, by the plaintiff against Trepagnier, for a specific sum, io be paid by the latter, while nothing is determined adversely to the appellant.

It may be true that Trepagnier was wrongfully sued ; that the plaintiff failed in his proof; that Weimprender has failed: but still Tre-pagnier does not set up these grounds oí complaint : we cannot, see the appellant’s right to do so. ■ ⅛ •

It is therefore ordered, adjudged, and decreed that the judgment be affirmed, with costs.