Smith v. Cobb , 1 Stew. 62 ( 1827 )

JUDGE SAFFOLD

delivered the opinion of the majority of the Court.

The maker and endorser cannot be joined in the same action at law. Smith and Fortner vere compelled to submit to the illegal judgement of the justice, or remove the case to an appellate Court. The appellate tribunal is directed by statute to try an appeal from the judgement oí a justice of the peace, according to the justice and equity of the case, without regarding any defect in the warrant, capias, or summons, or other proceedings of the justice. 1 conceive that the intention of ..his statute was to cure such defects, or irregularities in the proceedings of justices, as do not affect the essential rights of the parties; not to sanction a misjoinder of parties. It is true, the misjoinder here was corrected in the County Court, but it was at an expense to one of the defendants, perhaps equal to the amount in controversy. It is the opinion of the majority of the Court, that the judgement must be reversed.

The Chief Justioe not sitting.