delivered the opinion of the court.

The only question in this cause is, whether the act of 1837, (How. & Hutch. 595, sec. 33,) in reference to suits against drawers and indorsers, making it obligatory upon the plaintiff to sue them all jointly, extends to suits against the makers of a note, which has not been indorsed.

The statute does not in terms embrace them. By a previous law, the holder was authorized to sue any number of the makers in the same action; and it was provided that if more than one suit should be brought on the same instrument to the same court, for the purpose of accumulating costs, and without sufficient reason, it should be lawful for the court to order their consolidation, at the costs of the plaintiff. How. & Hutch. 594, sec. 28.

We are of opinion that this law is not affected by the act of 1837, as to instruments which have never been negotiated; and that this suit may be maintained by the plaintiff.

The action in this case was in a different county, from the action first brought on the same instrument against a part of the makers; and it was probably brought because there had been a failure to make the money by the first suit.

The judgment is affirmed.