Martin v. Townsend , 2 Stew. 329 ( 1830 )

By JUDGE CRENSHAW.

The error insisted on, is, that the discontinuance as to one defendant operated as a discontinuance of the entire action, and that the demurrer should have been sustained. At the common law it would be error to discontinue as to one defendant, in an action brought on a joint contract against the parties bound by the contract. But the common law is materially altered in this respect by the act of 1818. By that act it is in substance declared, that every joint bond, covenant, bill, promissory note or judgment of a court of record, shall be deemed in law to be joint and several, and that when a writ shall issue against two or more of such joint parties, it shall be lawful to discontinue such action against any of the parties on whom the writ has not been served, and proceed to judgment against the others.

The contract declared on, is a promissory note under seal, and technically speaking, is a bill single, and though the liability of the parties arises from their indorsement, yet they are clearly joint promissors, and conditionally liable to pay the debt according to the legal effect of the bill, and will be considered as parties thereto within the meaning of the statute. But a much stronger ground on. which to sustain the judgment of the Circuit Court is, that by virtue of the act of 1812, every indorsement of a promissory note or bill single, creates a bill of exchange, as belween the indorser and the indorsee, and that the last, indorsers by their indorsement dre\y a bill of exchange in favor of Townsend, on the makers of the instrument, and the prior indorser, and in contemplation of law, the writ was sued out against them as the joint drawers of a bill of exchange, and that consequently the case comes within the provisions of the act of 1818.

For these reasons, a majority of the Court are of opinion the judgment should be affirmed.

Judge White, disseniing.