Morgan Afee, Plaintiff In Error v. Thomas Doremus, James Suydam, Cornelius Suydam, and John Nixon
Citation | 5 How. 53,46 U.S. 53,12 L.Ed. 46 |
Parties | MORGAN McAFEE, PLAINTIFF IN ERROR, v. THOMAS C. DOREMUS, JAMES SUYDAM, CORNELIUS R. SUYDAM, AND JOHN NIXON |
Decision Date | 01 January 1847 |
Court | United States Supreme Court |
46 U.S. 53
5 How. 53
12 L.Ed. 46
MORGAN McAFEE, PLAINTIFF IN ERROR, v. THOMAS C. DOREMUS, JAMES SUYDAM, CORNELIUS R.
SUYDAM, AND JOHN NIXON.
January Term, 1847
THIS case was brought up, by writ of error, from the District Court of the United States for the Northern, District of Mississippi.
On the 8th of December, 1839, the following bill of exchange was drawn.
$4,000.
Locopolis, Miss., Dec. 8th, 1839.
Ninety days after date of this my first of exchange (second of same tenor and date unpaid), pay to the order of Morgan McAfee, four thousand dollars, value received, and charge the same to account of your obd't servants.
CLYMER, POLK, & CO.
Messrs. KEYS & ROBERTS, New Orleans.
The firm of Clymer, Polk, & Co., consisted of Isaac Clymer, Benjamin C. Polk, William C. Ivins, and Hiram Clymer.
McAfee indorsed it, and it came to the hands of the defendants in error, merchants and partners in New York, trading under the firm of Doremus, Suydams, and Nixon.
When the bill became due it was not paid, and was protested under the circumstances set forth in the first bill of exception.
In May, 1842, Doremus, Suydams, and Nixon brought a suit against the four makers and also against McAfee, the indorser. The action was a joint one, as required by a statute of Mississippi, passed on the 13th of May, 1837, which was as follows.
'Section 1. Be it enacted by the legislature of the State of Mississippi, that in all actions founded upon bills of exchange and promissory notes, the plaintiff shall be compelled to sue the drawers and indorsers living and resident in this State in a joint action; and such suit shall be commenced in the county where the drawer or drawers reside, if living in the State; and if the drawer or drawers be dead, or reside out of the State, the suit shall be brought in the county where the first indorser resides.
'Sec. 2. Be it further enacted, that in all cases where any drawer, acceptor, or indorser shall have died before the commencement of
the suit, a separate action may be brought against the representatives of such drawers, indorsers, and acceptors.
'Sec. 3. Be it further enacted, that the court shall receive the plea of non-assumpsit and no other, as a defence to the merits, in all suits brought in pursuance of this act; and all matters of defence may be given in evidence under the said plea. And it shall be lawful for the jury to render a verdict againts part of the defendants, and in favor of the others, if the evidence before them require such a verdict, and the court shall enter up the proper judgment in such verdicts against the defendants; which judgments and verdicts shall not be reversed, annulled, or set aside for want of form.
'Sec. 4. Be it further enacted, that new trials shall alone be granted to such defendants as the verdicts may have been wrongfully rendered against; and judgments shall be entered against all the other defendants in pursuance of the verdict.
'Sec. 5. Be it further enacted, that the clerk shall issue duplicate writs to the several counties where the various defendants may reside, and shall indorse on all executions the names of the drawers and indorsers, particularly specifying the first, second, and third indorsers.
'Sec. 6. Be it further enacted, that it shall be the duty of the sheriff, in all cases, to make the money on the executions, out of the drawer or drawers, acceptor or acceptors; and in no case shall a levy be made on the property of any security or securities, indorser or indorsers, unless an affidavit from some credible person be made and filed among the papers in the case, setting forth that the principal or principals have no property in this State, out of which the plaintiff's money and costs can be made; and in such event the plaintiff may proceed with the executions against the defendants next liable, and so on until his executions be satisfied.
'Sec. 7. Be it further enacted, that no sheriff, or other officer, shall take more than one forthcoming bond, in any case, for the same cause of action.
'Sec. 8. Be it further enacted, that any plaintiff shall have the right to discontinue his suit against any one or more of the indorsers or securities, that he may sue in any joint action, before verdict, on payment of the costs that may have accrued by joining said defendant in such suit.
'Sec. 9. Be it further enacted, that in all suits brought under the provisions of this act, the defendants shall not be allowed to sever in their pleas to the merits of the action, and no plea of abatement shall be allowed to be filed in any cause, unless affidavit be made of the truths of the facts pleaded in the plea of abatement.
'Sec. 10. Be it further enacted, that if any plaintiff or plaintiffs shall cause to be levied an execution on any security, or their indorsers or their property, when the principal has sufficient property in this State to satisfy such execution, the party so offending shall
be deemed a trespasser, and shall be liable to an action from the party aggrieved, and exemplary damages shall, in all such cases, be awarded by the jury trying the same. Approved, May 13, 1837.'
This Statute was, in part, adopted by a rule of court in 1839, as follows:——
'Rule XXX. The practice and proceedings in action at law, by the laws of this State, and the rules of practice for the government of the courts of law, made by the late Supreme Court, where not incompatible with the laws of the United States, the rules which may be prescribed by the Supreme Court of the United States for the government of this court, or with the existing rules of this court, shall be considered the rules and practice of this court: provided, however, and it is hereby expressly understood, that this rule does not adopt the whole of the act entitled 'An act to amend the laws respecting suits to be brought against indorsers of promissory notes,' approved May 13th, 1837; but that all of said act, except the tenth section thereof, is, and it is intended to be, adopted.'
At June term, 1842, McAfee pleaded the general issue.
In June, 1843, three of the four drawers of the bill having been served with process and the remaining one not, the suit was discontinued as to the drawers, and continued against McAfee alone.
In December, 1843, the cause came on for trial, when a verdict was found for the plaintiffs. During the trial, however, the two following bills of exception were taken.
First Exception.
Be it remembered, that on the trial of this cause, on this 8th day of June, 1844, the plaintiffs in this case offered in evidence a bill of exchange in these words:——
$4,000
Locopolis, Miss., Dec. 8th, 1839.
Ninety days after date of this my first of exchange (second of same tenor and date unpaid), pay to the order of Morgan McAfee, four thousand dollars, value received, and charge the same to account of your ob't servants.
CLYMER, POLK, & CO.
Messrs. KEYS & ROBERTS, New Orleans.
Having indorsed thereon the following names, three of which were erased:——
'Pay to Doremus, Suydams & Nixon, or order. Morgan McAfee, Charleston P. O., Miss.'
'A. H. Davidson, Charleston P. O., Miss.; G. Davidson, Charleston P. O., Miss.; M. L. Cooper & Co.'
The plaintiff then proved that the names of A. H. Davidson and G. Davidson had been erased before the maturity of the bill. The plaintiff then offered in evidence the copy of the original
protest, accompanied by the deposition of the notary public, in these words:——
United States of America, Eastern District of Louisiana, City of New Orleans, ss:——
Be it remembered, that on this thirteenth day of May, in the year of our Lord one thousand eight hundred and forty-four, before me, M. M. Cohen, a commissioner duly appointed on the 19th of April, 1842, by the Circuit Court of the United States in and for the Eastern District of Louisiana, under and by virtue of the acts of Congress, entitled, 'An act for the more convenient taking of affidavits and bail in civil causes depending in the courts of the United States,' passed Feb. 20, 1842, and the act of Congress, entitled 'An act in addition to an act...
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