President of the Agricultural Bank v. Harris , 10 Miss. 463 ( 1844 )

Mr. Justice Clayton

delivered the opinion of the court.

This was an action brought in the circuit court of Adams county, against several persons as indorsers of a promissory note. The declaration, besides the usual averments, alleges that theretofore, at the November term, 1840, of the said court, the plaintiffs recovered judgment against Ferguson, the maker of said note, for the amount thereof. This averment was intended to excuse the failure to join the maker in this action with the indorsers. The defendants in this case, the indorsers, pleaded in abatement that the maker and all the indorsers were at the time the suit was brought and the plea filed, living and resident in the county of Adams; to which plea a demurrer was filed. The court below overruled the demurrer, and judgment was rendered for the defendants, from which the cause comes, by writ of error, to this court.

This action is in direct conflict with the statute, regulating suits of this character. It may be very true that after the judgment against Ferguson, the maker, in the first suit omitting the indorsers, that he could not afterwards be sued in assumpsit upon the note jointly with the indorsers. But it was the fault of the plaintiffs, or of their counsel, thus to have proceeded in the first instance, and this step in breach of the statute, affords no reason for another violation in the second action. H. & H. 595.

It is said, in argument, that the record does not show but that the first judgment was obtained before the passage of the act in question. The act was passed in 1837. The time of bringing the suit does not appear from the record, but the note did not fall due till January, 1838, and the judgment was rendered in November, 1840. We think, therefore, it may fairly be inferred, that the suit was brought after the statute went into operation. And if the plaintiffs desired to exempt themselves from its provisions, it would devolve on them to establish the facts which would have that effect.

Judgment affirmed.