Thomas Coffee, Plaintiff In Error v. the Planters Bank of Tennessee

• Decision Date: 01 December 1851
• Citation: 13 How. 183,54 U.S. 183,14 L.Ed. 105
• Parties: THOMAS J. COFFEE, PLAINTIFF IN ERROR, v. THE PLANTERS BANK OF TENNESSEE
• Court: U.S. Supreme Court

54 U.S. 183 13 How. 183 14 L.Ed. 105 THOMAS J. COFFEE, PLAINTIFF IN ERROR, v. THE PLANTERS BANK OF TENNESSEE. December Term, 1851

THIS case was brought up, by writ of error, from the Circuit Court of the United States for the Southern District of Mississippi.

Page 184

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.

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.

Page 185

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...