Lillard v. Planters' Bank , 4 Miss. 78 ( 1838 )

Mr. Justice Trotter

delivered the opinion of the court.

There are two objections made against the validity of the judgment rendered by the court below in this cause.

1. It assigned as error, that the circuit court rejected the plea in abáternent tendered by the plaintiff in error.

2. That the judgment which is final, was rendered upon nil dicit, when there had been no discontinuance of the common-counts in the declaration.

The plea in abatement, which was treated as a nullity by the court below, was not verified by affidavit. This, it is contended by the plaintiff, was not necessary, because the abateable matter appeared upon the face of the pleadings. If this be true, then, according to the provisions of the act of 1838, in relation to pleas in abatement, the plea was good, and it was error in the court below to disregard it. We are then to inquire what are the facts in the plea, and whether the record proves their existence. The action is against Silas Lillard, as the endorser of a promissory note, made by one John S. Smith, payable to the order of Neibest & Gemmell, and endorsed by them to Lillard, by him to Lyle, and by him to Murchison & Doyal, and by them to J. Soria & Co., and by them to defendants in error. The objection to the proceedings in the court below is the non-joinder of the maker, and the several other endorsers of the note in the suit with Lillard. And this objection is made upon the provisions of the act of 1837, which provides “that the plaintiff shall be compelled to sue the drawers and endorsers of promissory notes, and bills of exchange, if living, and resident in this state, in a joint action.” The pleadings of the plaintiffs are silent as to the residence of the several other parties to the note, and do not state that they are living; The plea in substance avers that they were in full life and residents in this state at the date of the institution of the action. The facts then which constitute the gravamen of the plea do not appear

upon the record. But it is insisted that the other parties are presumed in law to be living, and resident in the state, as the pleadings of the plaintiff show that they were parties to the note, and do ‘not allege that they were not living, or not residents in the stale. But it does not appear to us that if we admit the truth of this argument, it will cure the objection to the plea. For if the law be as stated by the counsel for the plaintiff in error, he should have demurred for the insufficiency of the pleadings. According to established rules of pleading in reference to the parties to the action, it is held, “ that if it expressly appears upon the face of the declaration, or some other pleadings of the plaintiff, that the party omitted is still living, as well as that he jointly contracted, the defendant may demur.” 1 Chit. Plead. 53. And when the objection does not appear so of record, it can only be taken advantage of by plea in abatement, verified by affidavit. Ibid-The statute-of the 3 and 4 W. 4, requires the affidavit to state the residence of the omitted defendant in England, &c. From this direction in the act of William, the rule of pleading in England was not understood as stated by the defendant’s counsel. But we feel assured by the general rules which prevail on this subject, that it Was not necessary for the plaintiff below to state the negative facts urged .to be necessary by the defendant. The plaintiff is not bound in any case, to state any more facts than are necessary to present to the court a good cause of action. His right of action against any one of the endorsers, or other parties to the note or bill of exchange, of which he is the holder, is undoubted at common, law. The act of 1837 was adopted to prevent a multiplicity of suits, and to avoid unnecessary costs. Its only object was, therefore, to change the rule of pleading at common law, by making the parties all liable in one suit. It was enacted for the benefit of the parties to the note, or bill of exchange. It was never designed to change the character of the contract, or the rights and liabilities of the several parties to it. It makes the contract a joint one, for the purposes before stated. It alters no other rule of pleading. At common law the action must be brought against all the parties to a joint contract. And yet it has been held, that, in case of defendants, if one of the parties originally bound be dead, it is not necessary to notice him in the declaration, and the survivors need not be declared against, as such, &c. 1 Chit. Plead. 49. 1 B. and Aid. 29. The rule relied upon by the counsel for the plaintiffs in error, which presumes that a party is living until the contrary appears, is not applicable to the pleadings in the cause. But be this as it may, we apprehend that there is no rule of pleading which authorises a court to presume that a party to a joint contract resides in the state, because an action may be instituted upon it in one of our courts. Such was not understood to be the rule in England at the time of the adoption of the act of William 4, before noticed, or the defendant would not have been required to state in his plea the residence in England of the omitted party, and that act required the plea to be verified by affidavit. We are, therefore, of opinion that the court below did not err in treating this plea as a nullity.

In regard to the second error assigned, we have only to remark that, the question raised by it was decided upon by this court at the last term in the case of Gridley v. Brigs, Lacoste & Co., 2 How. Rep. 830. In that case there was no discontinuance of the common counts of the declaration, and the judgment by default was held regular under the provisions of our statute. We are not inclined to disturb that determination at this time.

The judgment below must therefore be affirmed with damages and costs, &c.