In April, 1840, Joshua G. Jones brought his action against Washington Jenkins, as endorser of a protested draft, of which he alleges himself to be the holder, and he asked for judgment for the amount, to-wit, $2476 27.

At the December term of the same year, the defendant put in his answer, denying his indebtedness as endorser, but setting up in reconvention, a judgment which he alleged had been recovered against the plaintiff by Ilillyer, Bush & Co., of New York, for a larger amount, which judgment he asserts to be his property; and, if the court should be of opinion that he is liable as endorser on the draft sued on, then he pleads the judgment in compensation, for that amount, and asks for judgment in reconvention against the plaintiff for the balance.

At the June term, 1841, a power of attorney was exhibited to ■ the court, given on the 3d of February, 1841, by John Eubanks to Morse & Roysdon, the plaintiff’s attorneys, authorizing them to collect the protested draft on his account. Thereupon Eu-banks, alleging that the protested draft had been transferred to him pendente lite, moved the' court to substitute him as plaintiff in the case, in the place of Jones, the original plaintiff. On this *181motion, which we regard as quite irregular in practice, especially after a plea in compensation and a reconventional demand have been filed, a trial took place as it has been called, which resulted in allowing the motion. Eubanks was admitted as sole plaintiff, and Jones entirely dismissed from the cause. To this proceeding a formal bill of exceptions was taken, setting forth the ground that Eubanks could only make himself a party by intervention, and not by substituting 'himself altogether as plaintiff, without regard to the defendant’s plea in compensation and his reconventional demand. We repeat that, in our opinion, the court erred in these proceedings.

After the substitution of Eubanks as plaintiff, the defendant filed an additional plea in the shape of an amended answer, in which he avers that Jones was insolvent at the time of his pretended transfer to Eubanks. That said transfer was made fraudulently and collusively, and that, in truth, Jones is now the owner of the draft. Upon a trial between the new plaintiff and the defendant, there was a verdict and judgment against the latter, and he appealed.

We cannot, without sanctioning the greatest irregularity, which might end in great injustice, examine this decision upon the merits, according to the evidence adduced on the trial. The defendant is entitled, in our opinion, to have his. original adversary reinstated in the cause, saving to Eubanks his right to intervene for the protection of his alleged rights.

It is, therefore, ordered and decreed, that the judgment of the District Court be reversed and annulled; that the motion to substitute Eubanks as plaintiff in the cause, in lieu of Jones, be overruled, and the said Jones reinstated as plaintiff, without prejudice to the right of Eubanks to intervene, if he sees fit, according to law; and that the case be remanded for further proceedings ; the appellee paying the costs of this appeal.