A rehearing was ordered.
Lindsay, J.L. B. Tayler, as assignee of a joint and several note for $450, executed by the plaintiff in error and C. 0. Benham to P. L. Herron, and by him assigned to the defendant in error, brought suit in the district court against both obligors in the note and the assignor or endorser, alleging that the obligors were both residents or citizens of the county of Gonzales, and the assignor or indorser was a citizen or resident of Guadaloupe county, where the suit was brought. Citations were issued accordingly, and the writ to Gonzales returned by the sheriff “ executed ” as to W. L. Barnett, and “ not found” as to C. C. Benham. The writ to Guadaloupe county was returned “executed” on P. L. Herron. At the trial, the plaintiff discontinued his suit as to C. C. Benham, who was not served with process, and judgment was rendered against the defendants, Barnett and Herron.
This cause was decided in this court at the fall term, 1866, and a judgment rendered, reversing the cáse, upon the ground that the writ directed to Gonzales only called upon the defendant, Benham, to answer; and the sheriff, not being able to find Benham, executed it on the plaintiff in error, W. L. Barnett, who was not mentioned in the writ.
*456Upon motion of the attorney for- the defendant in error in this court a rehearing was granted; and upon the suggestion of a diminution of the record, a certiorari was issued to the clerk of the district court for a more perfect record. The response was made to the writ, which simply verified the record first sent up, showing the state of facts already indicated as to the service of the process. This was a void judgment against the plaintiff in error, and was properly reversed by this court at the former term, because of the want of service of the writ; and as the case must still be reversed and sent back for re-trial, it may not be improper to point out another defect in the proceeding in the court below, which might serve to protract-the litigation, if it be not attended to. It will be observed that Barnett and Benham are joint and several makers of the note sued on. Benham not being served with process, the cause was discontinued as to him. These makers of- the note were both principals. The statute, (Paschal’s Dig., Art. 1448,) among other things, provides, “that this section shall not be so construed as to allow a plaintiff to discontinue as to the principal, and take judgment against the endorser or surety, who- is jointly sued, unless there be an allegation of “non-residence or insolvency in the petition.” (Paschal’s Dig., Art. 1449.) In addition to the plain import of this language, this court, in the case of Look and Cornelius v. Henderson, (4 Tex., 303,) has already given a judicial interpretation to this act as here suggested. It will be well therefore, before a re-trial, that this suggestion should be heeded, to avoid the expense and delay of bringing the case again before this court. The judgment of the district court is reversed, and the cause
Remanded.