J. S. Hamilton & Co. v. Catchings & Co.
J. S. Hamilton & Co. v. Catchings & Co.
Opinion of the Court
delivered the opinion of the court.
Plaintiffs in error (defendants below) insist that, inasmuch as it was shown by their plea in abatement that they were
The argument is based on the provisions of sect. 2237, Code 1871, requiring that in suits upon negotiable instruments the makers, acceptors, drawers, and indorsers shall be sued in a joint action, and that such action shall be brought in the county where the party first liable resides.
It is insisted that, inasmuch as we have declared in Meggett v. Baum, 57 Miss. 22, that the accommodation acceptor of a bill is to be regarded between the parties as the surety of the drawer and secondarily liable, the above cited section governs the bringing of suits against them. The defect in the argument is that the statute does not embrace sureties generally, but applies only to the parties enumerated, —to wit, makers, acceptors, drawers, and indorsers of bills of exchange and promissory notes, — and prescribes the order and method of instituting suits on commercial paper, namely, by suing in the county of his residence the party primarily bound, as shown by the face of the paper.
When the suit has ripened into a judgment it will be competent for the parties to adjust the equities between themselves, and to show that one who appears to be a principal is really a surety ; but, though the holder of the paper may know this, he is not governed by it in bringing his action, because the statute nowhere declares that a surety can compel suit to be brought in the count}' of the residence of the principal debtor. The plaintiff, in instituting proceedings, looks alone to the face of the paper, and sues him who has there written himself down as principal.
Notwithstanding the requirement that all the parties shall be sued in a joint action, it has been several times declared that this provision is intended alone for the benefit of those secondarily liable, and that the primary debtor cannot com
Judgment affirmed.
Reference
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- 1 case
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- Syllabus
- 1. Bill of Exchange. Accommodation acceptor. Suit, where brought. Under sect. 2237 of the Code of 1871, which provides that an action founded on a bill of exchange shall be brought in the count}' where the party first liable thereon resides, the acceptor of such bill should be sued thereon in the county of his residence, notwithstanding he is a mere accommodation acceptor and the drawer of the bill is living and resident in a different county of this State. And the fact that the holder of the bill sued on, being the payee thereof, knew at the time of the acceptance that it was done as an accommodation for the drawer, does not alter the attitude of the acceptor as the party primarily liable for the debt. As to what party is primarily liable on such paper, that is determined by the face of the paper itself. 2. Same. What parties sued. Who can object to omission. Although sect. 2237 of the Code of 1871 requires that, in an action on a bill of exchange, all of the parties liable thereon shall be sued in a join? action, those primarily liable cannot object that this has not been done, the provision being only intended for the benefit of those secondarily liable.