The judgment of the Court is manifestly erroneous. That the plaintiff had no cause of action, was no reason to refuse to give judgment in favor of the defendant Griffin, upon the admitted cause of action, set up in his answer in reconvention. His right to a recovery against the plaintiff, was fully made out and admitted, by the plaintiff’s own averments. He was brought into Court by the plaintiff, and invited- to litigate his rights in that action. The necessity of Ms instituting a distinct suit was thereby dispensed with. If is immaterial that the note which he held against the plaintiff, was not due at the time of instituting suit by the latter. It was overdue when he answered to the action. Having been brought into Court by the plaintiff, upon that identical cause of action, it cannot be questioned, that he had the right to have judgment upon it, against the plaintiff upon his own admissions.
It was objected to his right to have judgment against the plaintiff, as indorser, that he had not brought suit against Mm to the first or second Term of the Court after the maturity of the note. The statute does not require that suit be brought against the indorser to the first or second Term of the Court. It requires the use of due diligence to collect the note of the maker, not of the indorser : it is the maker, and not the indorser who is to be sued to the first or second Term of. the Court, in order to fix the liability of the latter. (Hart. Dig. Art. 2520, 2528.) Besides, both the holder and maker of the note were brought into Court by the plaintiff before the first Term of the Court. Of course, it was competent for the holder to assert his right of action against both maker and indorser in that suit. There was no necessity of another suit, for that purpose, when all the parties in interest were then before the Court.
Because the Court erred in not giving judgment for the defendant Griffin, in accordance with the prayer of his answer, and the pleadings and evidence in the case, the judgment is *222reversed; and such judgment will be here rendered as the Court below ought to have rendered.
Reversed and reformed.