THIS case was brought up, by writ of error, from the Circuit Court of the United States for the Southern District of Mississippi. The facts are stated in the opinion of the court. It was argued by Mr. Coxe, for the plaintiff in error, and Mr. Badger, for the defendants in error.
The opinion of the court was delivered by: Mr. Justice Daniel delivered the opinion of the court.
Mr. Coxe. This was an action in the Circuit Court of the United States by the Planters Bank against plaintiff in error and six others, as the drawers and indorsers of several checks, bills, promissory notes, &c. The plaintiff is averred to be a corporation, created by the laws of Tennessee, &c.; and each and every of the defendants is averred to be a citizen of the State of Mississippi, and these averments were necessary to give jurisdiction to the court. The declaration contains numerous special counts, in all of which, however, the instrument which is the subject of it is averred to have been made in the State of Mississippi, between parties, citizens of that state, and which, after several indorsements, finally came to the hands of plaintiff. In no one instance, however, was the defendant the immediate indorser to plaintiff. It is supposed that in such a case the Circuit Court had no jurisdiction. Young v. Bryan, 6 Wheat. 146; Sullivan v. Fulton Steamboat Company, 6 Wheat. 450; Mollan v. Torrance, 9 Wheat. 537; Evans v. Gee, 11 Peters, 80.
The only ground upon which jurisdiction in this case can be sustained is supposed to be presented in the last count in the declaration. This is the common money count.
This action is, as has been stated, brought originally against seven defendants. Every count in the declaration was a joint contract. Three of the defendants were served with the first process; five upon the second or alias summons. It does not appear ever to have been served on the Mississippi and Alabama Railroad Company. Moss, Packett, Coffee, and Sheldon plead non assumpsit jointly; Crozier pleads separately. The death of Washington and Shelton is suggested, and the suit abated as regards them. This is the proper course when defendants are jointly responsible, but not when their liabilities are several and distinct. The plaintiffs then discontinued the action as to all the defendants, except Coffee, plaintiff in error, and forthwith proceeded to have a jury impanelled to try the issue joined. Verdict and judgment for plaintiffs against Coffee.
The record then presents this case: All the defendants are averred to be jointly responsible on a joint contract. Plaintiff in error, with two of his associates, pleads a joint plea. Upon this issue is joined. It is insisted that under these circumstances a discontinuance of the action against one is a discontinuance as against all.
The issue being upon a joint plea, averring that the parties did not, as is alleged in the declaration, jointly promise, the verdict and judgment against Coffee singly, as having made a several promise, is a departure from the issue, and void.
When the narr. consisted of two counts against two individuals, and demurrer because one of the defendants was not named in the last count, plaintiff cannot enter a nol. pros. on that count, and proceed on the other. So if one pleads infancy, plaintiff cannot enter a nol. pros. as to him, and proceed against the other. Tidd's Pr. 630. In assumpsit or other action upon contract, plaintiff cannot enter a nol. pros. as to one, unless it be for some matter operating in his personal discharge, without releasing the others. Tidd, 632.
In the case at bar, the declaration avers a joint contract between the plaintiffs and seven defendants. Three of the defendants being served with process, appear and plead jointly that they did not promise as is alleged against them. The death of some of the defendants is suggested, and consequently all the others are to be considered as living. At this stage of the case the plaintiff discontinued his action against all the defendants except one, and proceeds to take a verdict and judgment against him.
It is admitted upon authority that if one alone is sued upon a joint contract, he must avail himself of the non-joinder of his co-contractor by a plea in abatement. If, however, the plaintiff in his declaration shows the contract to be joint, no plea in abatement is required, if it also appear that the party who ought to have been joined is living. 1 Chitty, Pl. 29; 1 Wms. Saunders, 291. This doctrine is distinctly laid down in Scott v. Godwin, 1 Bos. & Pull. 73; 2 Saund. 422, Wms. Note; United States v. Linn, 1 How. 104; United States v. Gerault, 11 How. 22.
Such omission, apparent on plaintiffs' pleadings, may either be moved in arrest of judgment or in error.
Mr. Badger, for defendants in error.
It is contended, for the defendants in error, that there is no error in the judgment. The jurisdiction of the court below is evident upon the undisputed averments of the declaration.
There was nothing irregular; nothing erroneous in permitting the discontinuance as to the other parties: on the contrary, the regularity and legality of the proceeding have been sanctioned by cases in this court.
In the case of McAfee v. Doremus, 5 How. R. 53, McAfee had been sued in the Circuit Court of Mississippi as indorser of a bill of exchange, jointly, with four persons as the drawers of the bill. McAfee appeared, and pleaded severally the general issue, and three of the four drawers having been served with process, the action was do continued as to the four, carried on against McAfee alone, and upon a judgment rendered against him, a writ of error was brought in this court. Here the judgment was unanimously affirmed, the ...