Assumpsit brought by Herald as indorsee against Scott and Wise as indorsers of certain promissory notes. The declaration contains several counts, the fifth and sixth of which allege, inter alia, that the plaintiff had sued the makers of the notes, and had been defeated on the ground that the notes were made without consideration; that when ■said suits on the notes were commenced, the now defendants, Scott and Wise, had notice thereof; that they employed counsel to advise with the plaintiff’s counsel in the management of those suits; and that their counsel advised with the plaintiff’s counsel in every stage of the suits, and approved of all the proceedings therein on the plaintiff’s part, &c.
At the first term after the declaration was filed, the cause was continued. At the next term, the defendants showed to the Court by affidavits, that, since the last continuance, writs of error to the judgments relied on in the fifth and sixth counts of the declaration had been issued, and were then pending in the Supreme Court; that errors had been assigned, and appearances entered, &c. Upon these affidavits, accompanied by the transcripts of the suits in error, the now defendants, Scott and Wise, moved the Court to stay further proceedings in this cause against them, until the determination of the suits in error. The motion was overruled.
We think this motion should have been sustained. The *130plaintiff could not recover on the fifth and sixth counts, whilst suits in error on the judgments described in those counts were pending. If those judgments should be affirmed, the plaintiff may introduce them in evidence on the trial, acdording to what is said in Howell v. Wilson, 2 Blackf. 418. And see Blasdale v. Babcock, 1 Johns. 517. — Barney v. Dewey, 13 Johns. 224. But it would, of course, be otherwise, should the judgments be reversed.
J. Law and /. Whitcomb, for the plaintiffs. S. Judah, for the defendant. Per Curiam.The judgment is reversed with costs. Cause remanded, &c.