McGrath v. Hoopes

Mr. Justice Fisheu delivered the'opinion of-the court. This was an action of assumpsit in the circuit court of Claiborne county, by thé payee of a bill of exchange, against the acceptors. The question for decision arises upon the plaintiffs’ demurrer to the defendants’ plea in abatement,.which sets forth that the drawers of the bill were residents of the county of Carroll in this State, and not being sued in the action, it was prayed that the same might be abated. The court overruled the demurrer, and the suit was accordingly abated. The statute of 1837 (Hutch. Code, 852) does not in expre'ss language require the acceptor of a bill of exchange to be sued jointly with the drawer and indorsers on the bill. But, from the object of the law, we entertain no doubt as to the legislative intention on this subject. It is only necessary to apply the familiar rules of construction to relieve the statute from all doubt or ambiguity. It was intended to operate as a remedial statute, to relieve against the mischief at the time felt by the community, by providing another remedy for the holder of commercial paper, more in accordance with justice and equity. It was intended mainly for the relief of drawers and indorsers of bills of exchange and promissory notes, by requiring the holder to bring his suit against all parties bound thereon, resident in the State, for the double purpose of taxing the party primarily liable with the entire costs 'of the litigation, and of compelling him, if possible, to pay the judgment when recovered. It may be the right of a drawer or indorser, if sued at all, to be sued jointly with the accepter of the bill or maker of the note. We can readily see how he can be benefited by being thus joined, in the protection which he receives against the payment of the costs of the suit. But while we readily see [499] this benefit to the drawer or indorser, we see at the same time a corresponding burden imposed upon the acceptor, who is charged with the costs occasioned by the increase of parties to the suit. How, then, can he complain that the suit has not been brought in a manner to tax him with this additional tax ? The plea, if it amounts to any thing, shows that the acceptors are benefited by the nonjoinder of the drawers in the action; and it is therefore no defence for them. It may be true, that if the plaintiffs should ever sue the drawers, that they may be allowed to make the defence which is now set up by the present defendants; This question, however, is not involved ; and we do not feel called upon to go out of our way to decide it. Judgment reversed, demurrer to the plea in abatement sustained, and cause remanded.