delivered the opinion of the court.
This is an action of assumpsit, instituted against the indor-sers of a promissory note, made on the 11th day of March, 1841. The defendants pleaded a special plea that a recovery at law had been obtained by Meek, the usee in this action, against the maker of the note sued upon in the action at bar, and that in that action against the maker, they, although at the time residents of this state, were not joined as defendants. This special plea in bar was not verified by affidavit. To this plea a demurrer was filed, stating for cause that the said de-fence should have been made by plea in abatement, verified by affidavit. This cause of demurrer seems to have been well taken, under the decision of this court, in Lillard v. The Planters Bank, 3 How. 78; and the plea appears to be in other respects defective in its attempt to bring up the defence that might be made under the statute, (How. & Hutch. 595, § 33,) in the case of a failure to join in the action all the parties to a promissory note resident in the state. The plea seems to relate more to a previous action than to the one at bar. Had the plea not been met by the plaintiff in a demurrer, the court below might have properly stricken it out as a nullity upon his motion. Again, the court below erred in giving a judgment for the defendants while a plea of non assumpsit existed in the case.
Judgment reversed, the demurrer directed to be sustained with judgment of respondeat ouster, and cause remanded.