J. S. Hamilton & Co. v. Catchings & Co.

Chalmers, C. J., 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 [95] accommodation acceptors of the bill sued on, as was well known to defendants in error (plaintiffs below), the suit should have been instituted in the county of the residence of the drawers of the bill, — to wit, in the county of Warren, — and that said drawers should have been jointly sued with them. 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 [96] plain that the secondary>one is not joined. McGrath v. Hoops, 26 Miss. 496; Duncan v. McNeill, 31 Miss. 704; Crump v. Wooten, 41 Miss. 611. Judgment affirmed.