Beckwith v. Carleton & Co.

By the Court. Lumpkin, J., delivering the opinion. A “ complaint” was filed under the Short Forms Act, in Muscogee Superior Court, at the instance of Oarleton & Co. on two promissory notes, against Samuel Beckwith, as maker, and Edward Taylor as indorser, amounting, together, to eleven hundred and fourteen dollars and four cents. The notes were to be paid at the agency of the Mechanic’s Bank at Columbus. On the trial, when the declaration was read, it was demurred to, on the ground of the mis-joinder of improper defendants. The Court over-ruled the objection, and the defendants’ counsel excepted. When the notes were tendered in evidence, the defendants, severally, objected to their being read to the Jury. I am notable to comprehend, very clearly, on what ground the maker objected; but the objection, on the part of the indorser, was, that this being bankable paper, in contemplation of our Law, a demand on the maker and notice to the indorser, were necessary, in order to charge the indorser ; and that there was no averment in the writ, which authorized this proof to be admitted. The Court over-ruled the objection and allowed the notes to [693] be read, and proof also to be made, of the presentation of the notes to the maker — his refusal to pay, and notice thereof to the indorser; and to this ruling, defendants’ counsel excepted. When the Jury came into Court to deliver their verdict, defendants’ counsel objected to its being received and recorded, on account of its uncertainty. It found eleven hundred and fourteen dollars and four cents for the plaintiff, with interest and cost. This objection was over-ruled' and thereupon, defendant’s counsel excepted. For the sake of convenience, I shall reverse the order in which the exceptions stand upon the record, and dispose of the last first. [1.] Was the defect in the verdict fatal ? We think not. It has received the sanction of all the Courts in the State, for more than fifty years, and we are not aware of any inconvenience it has occasioned. Instead of returning an aggregate amount of damages, including both principal and interest, our Statute requires that these items should be kept separate; and hence, 'no doubt, the origin of this form of verdict: That is certain which can be made so. And the Court could, without any difficulty, award a judgment upon this verdict. The Jury have found the exact sum of the two notes, with interest thereon ; meaning, thereby, of course, from the time when they respectively became due. We must decline to over-turn this time-honored practice. [2.] This being bank paper, although payable at an agency, we agree with counsel for the defendants, that demand and notice are necessary. We hold, however, in conformity with the construction put upon the Act of 1847, in Cameron vs. Moore and Wife, (10 Ga. R. 368); and Hotchkiss vs. Newton, (Ib. 560,) that this proof could be made, notwithstanding the omission of any allegation to that effect, in the complaint. [3.] But could the maker and indorser of these bankable notes, be sued together in the same writ ? It is conceded that this could not be done at Common Law. We are aware of no State Statute which would authorize it to be done. Upon ordinary promissory notes, the maker and indorser may be joined [694] in the same action, under the Act of 1826. But this description of contract is expressly excepted from the operation of this Act; and there is nothing in the Act of 1847, which affords any warrant for such a proceeding. Indeed, whenever demand and notice are necessary to charge the indorser, it would be rather anomalous to include him in the same declaration with the maker of the note. At any rate, we feel no disposition to anticipate the Legislature, by the establishment of such a practice. Consequently, upon this ground, the judgment below- must be reversed, and a non-suit ordered, provided there be no power given, under any of the English Statutes of Jeofails, or of our own, which are much broader, to amend the complaint, by striking out either one of the defendants, and allowing it to stand, as to the other.