Black, the plaintiff below, had a right to discontinue his action as to Charles N. Horne, a non-resident, who was sued, but not served with process. He was the assignor of the note. The plaintiff below had set forth against him a cause of action, as endorser, in the petition. So had the defendant below, in his plea of reconvention. Neither plaintiff nor defendant had made the proper affidavit, or taken any other steps to make Charles N. Horne, a party. Thus the matter stood, when the plaintiff dismissed his suit as to him. The defendant had not placed himself in a situation to prosecute his cause of action against said Charles N., and therefore he could not resist the motion to dismiss. He was not prevented, by this action of the court, from establishing his defence to the note, as set up in his plea. Had he made the necessary affidavit, in connexion with his plea or cross-action, and applied to the court for a continuance, in order to procure service by publication, he would have occupied a much more favorable position; and it might then have been quite immaterial to him, whether the plaintiff below dismissed his suit against Charles N. Horne, or not. Judgment affirmed with damages.
Affirmed with damages.