25 Miss. 242 | Miss. | 1852
delivered the opinion of the court.
A judgment by default was rendered in this case against the plaintiff in error.
The declaration states, that J. W. Eldridge made his promissory note, payable to Ezell; that Ezell transferred the note by delivery to Haynes, who transferred the same by indorsement to Conner, who afterwards transferred the same by writing to Walker, the usee, and that Conner guaranteed the payment of the note to Walker. Conner and Haynes are both sued.
This declaration is manifestly defective, and we do not think, that even by the statute of jeofails, the judgment by default can be sustained.
The case presents the curious anomaly of a suit in the name of the payee of a note, against subsequent holders, for the purpose of making them liable upon a contract of guaranty made to another and a different person. The declaration shows on its face, that Ezell has no right or title, by virtue of which he could maintain this suit. It is true he is the payee of the note, and did not indorse it; and in a suit against the maker, the holder of it would have had to use his name to recover. But this is not a suit on the note or against the maker, but against two parties who were at one time holders of it, and is brought upon a subsequent contract of guaranty made by them, not to or with Ezell, but to and with Walker. Although the statute of jeofails is very broad, we cannot extend it to a case, where the declaration shows on its face, that the right of action is not in the party suing, but in another.
Judgment reversed, and cause remanded.
