Clampitt v. Newport

Slidell, J. The plaintiff, in his individual name, brought suit against Newport on the 6th January, 1851, upon an instrument of the following tenor: $1120. Woodville, January 6, 1844. Twelve months after date we, or either of us, promise to pay Biehard Olampitt, administrator de lords non, with the will annexed, of Jacol Elslerry, dec’d, eleven hundred and twenty dollars, for value received. A. R. BROWN, A. 0. NEWPORT, M. C. GAULDEN. The defendant excepted to the right of Olampitt to sue upon this instrument in his individual name. The exception was disregarded by the District Judge. His opinion is sustained by the cases of Urquhart et al v. Taylor, 5 Martin, 202, and Gilman v. Horsley, 5 New Series, 662. It is proper to add, that no set off is proved against Olampitt, either individually or officially. Underour law this instrument, not being negotiable in its form, is subject to the prescription of ten years. The law of Mississippi is not shown, and, therefore, no foundation is laid for any discussion of it. The defendant pleaded that he was entitled to a credit for an amount made by plaintiff, under process in Mississippi. He has not averred or proved any specific amount so made. [125] Brown was cited in warranty as the principal of Neioport, in the debt in question. He did not deny the existence of the relation of principal and surety. He relied upon an exception to the plaintiff’s right to sue, which we have already noticed. Ho also contended the suit codld not be maintained, in consequence of the attachment proceeding in Mississippi. There is no evidence that any thing was made in that suit, and the mere existence of such proceedings in that State, is not, in our opinion, a bar to a personal action here by the plaintiff - against Newport, nor a defence against Newport's recourse to his principal. Judgment affirmed, with costs.