Morris v. Hillery

8 Miss. 61 | Miss. | 1843

Per Curiam.

The plaintiffs, as a mercantile firm, sued on a promissory note made by fifteen persons, only five of whom were sued. James M. Howard was one of the makers of the note, but he was not sued. He was also a member of the firm of Morris, Howard & Co., and of course a plaintiff in the action. The defendants who were sued, pleaded that Howard the plaintiff was also a maker of the note, and the plaintiff demurred; and the question is, can an action at law be sustained on this note against defendants, other than Howard.

If the cause of action was joint only, it is clear that it could not, because a party cannot be plaintiff and defendant, and in joint causes of action all must be joined. But the statute makes all notes, and even the contracts of partners, joint and several, and provides also that any number of the makers may be sued. It is the separate note of each maker; the holder may sue one or more, and if he omit to sue part of the makers, they have no concern in the suit. If Howard had been sued in this suit, that would have been a defect, but he is not, and the others cannot set up his liability as a defence. The action must be well brought.

The case of Stevens and Pettis v. West and Hamilton, 1 Howard, 308, has been cited in support of the defence, but that case was decided on a different principle altogether, which arose out of a feature in the case very different from any thing which is presented by this case. West was a joint maker of a note made by Stevens and Pettis, payable to a third person, who indorsed it to West and Hamilton, West the maker being one of the firm. This was regarded as a payment of the note by West, who was bound to pay it. By receiving his own note, West extinguished it, he being bound to lift it. It was observed that he was only discharging his duty, and that having paid the note he had his recourse for contribution against his co-makers. This was the principle on which that case turned. If this note had been made payable to a third person, and indorsed to the plaintiffs, then the two cases would be alike, but as it is they are not. Howard has not lifted his note as West did.

A case in 18 Eng. Com. Law Rep. is also referred to. That was evidently a joint cause of action, and decided on that ground exclusively, and the rule is so different in relation to joint contracts and those which are several, that it cannot be regarded as authority in this case.

We may also mention the distinction between notes of this kind and the common law rule as to bonds. The right of action being discharged as to one, releases the others, on the ground that there is but one duty, and by destroying the right to contribution, the obligation is gone. But here there never was a legal liability on the part of Howard.

For these reasons we think the demurrers to the pleas should have been sustained, and the judgment is accordingly reversed and the cause remanded to be tried on the issues.