Wells v. Patterson , 8 Miss. 32 ( 1843 )

Opinion of the court by

Turner, Justice.

This was an action of assumpsit, brought by the plaintiffs below, Patterson & Wiswall, as indorsees of a promissory note, made by the defendant, Wiley Wells, payable to Joseph George, or order, and by him indorsed.

The defendant pleaded in abatement that J. George, the indorser, was not joined in the suit, he being a resident citizen of this state. The plaintiffs demurred, and the court sustained the demurrer; whereupon the defendant plead to the merits, and' on issues joined there was a verdict and judgment for the plaintiffs. On the trial of the cause, a bill of exceptions was taken to the opinion of the court ruling out a certain receipt.

The act of May, 1837, Hut. & How. Dig. p. 595, sec. 33, provides, “That in all actions founded upon bills of exchange and promissory notes, the plaintiff shall be compelled to sue the drawers and indorsers, living and resident in this state, in a joint action.” The language of this statute is very full, plain and explicit, and was intended to prevent multiplicity of suits, and to save costs. But the defendants in error contend that the intention of the legislature was not only to prevent these consequences, but to compel the holders of such notes, &c. to proceed against the makers or principals, and that in this case the spirit of the law is complied with, as the suit is against the maker of the note.

It is true that one object of the law is thus fulfilled. But, to sustain their demurrer, they must show further that they could not sue the indorser, o'r that the indorser was non-resident. We are therefore of opinion, that the plea in abatement should have been sustained, and. the suit abated.

This view of the case renders it unnecessary to notice the other ground of error relied on. We have no doubt but that the court also erred in ruling out the receipt offered in evidence by the defendant below. It was not of itself full proof of payment, but was a link in the chain of evidence tending to the proof of payment.

Judgment reversed; and this court, proceeding to render such judgment as the court below should have rendered, doth order and adjudge that the demurrer to the plea in abatement be overruled, and that the suit be abated, at the cost of the defendants, Patterson & Wiswall.