
    The President, Directors and Company of The Agricultural Bank vs. William Harris, et al.
    The act of 1837 requires all the parties to a note, living and resident in this state, to be sued jointly, in a single action; after the passage of the act, the holder of an indorsed notesued the maker, separately, and obtained a judgment at law against him, and afterwards sued the indorsers jointly, alleging as an excuse for not suing the maker, that he had already obtained judgment against him f Held, upon plea in abatement to this last suit, because the maker of the note was not a party defendant and demurrer to that plea, that the demurrer must be overruled, and judgment rendered in favor of the indorsers.
    In error from the Adams circuit court.
    This was an action of assumpsit, on a note made by W. J. Ferguson, indorsed by Brander, McKenna, and Wright, William Harris, A. L. Gaines & Co., and R. M. Gaines, for #6180.
    The declaration was in the common form, except an averment, that at the November term, 1840, the plaintiffs recovered judgment against Ferguson, the maker, for $7576 y^-, in an action founded on the same note; and also that Brander, McKenna & Wright, are nonresidents.
    To this the defendants plead, in abatement, that Ferguson and themselves were living and resident in this state, when suit was instituted, and should have been joined. The plaintiffs filed a general demurrer to this plea; the demurrer was overruled, and judgment was entered for the defendants, which is assigned for error in this court.
    
      Montgomery and Boyd, for plaintiffs in error.
    This case involves the construction of the act, requiring the holder to sue the maker and indorsers of a promissory note, in a joint action. This act says, the “ plaintiff shall be compelled to sue drawers and indorsers, living and resident in this state, in a joint action.” How. & Hutch. 595.
    
      A literal construction of the act would embrace the case, but we conceive the averment in the declaration, that plaintiff has already obtained judgment against the maker, is sufficient to take the case out of the reason of the statute; and it seems a settled rule, that although a thing be within the letter of the statute, if it is not within the intention of the maker of the statute, it is not within the statute ; that is, it is not governed by the rule prescribed by the statute. 6 Bac. Abr. 384, 385. 15 John. R. 358. 2 Inst. 64. 3 Cowen R. 95. Plowden, 18. 4 Barn. & Alder. 212. 3 Barn. & Alder. 266. 5 Durnf. & East, 449.
    ■ The object of the legislature was, surely, to prevent multiplicity of suits, accumulation of costs, and to force a resort to the, party primarily liable, in the first instance. The averment in the declaration shows, that the plaintiff had no existing right of action on the note, against Ferguson. Why then sue him ? It would not save cost; and if sued, he could plead the former recovery in bar, which would entitle him to a judgment, and leave his co-defendants precisely where they now stand. This would be a vain and useless act, which the law can never be presumed to require.
    The judgment having been obtained against Ferguson, shows the effort, on the behalf of plaintiff, to obtain satisfaction, according to the order of liability."
    The authorities above cited show many stronger cases than this, in which courts have decided that the legislature never could have intended to embrace cases peculiarly circumstanced, and therefore ruled that they should not be governed by the act. It may be objected, that the plea in abatement was not demur--rabie, notwithstanding the case does not come within the statute ; but that the matter in avoidance should have been the subject of a replication; but we conceive it was competent in our declaration, to show cause for not joining a defendant who, under ordinary circumstances, should have been joined, as that one was dead; and if the defendant who was sued alone, wished to deny the facts of the excuse offered in the declaration, he must deny it by plea ; and it is not sufficient to plead a matter admitted by the declaration. The defendants should have demurred to the declaration, -because the matter they rely upon for a defence is apparent; and if the excuse offered for nonrejoinder is insufficient, a demurrer would have been sustained to that part of the declaration.
    . EusUs, on the same side.
    The sole question is whether the abatement is not saved, by the special matter averred in excuse for not joining the maker in the suit. If joined in the suit, he could have pleaded the former recovery in bar effectually. To join him in the suit, would be a certain increase of costs upon the plaintiffs, to no profitable end. Yet a material object of the statute is to relieve from costs, and surely this object should be kept in view, as well for the plaintiff as for the defendant.
    The special averment apprizes the indorsers that the condition precedent, intended to be secured to them by the statute, viz.: ajudgment against their principal, already exists. Their plea in no wise traverses this averment. By special enactment it is a plea in abatement, but unlike the old pleas in abatement at common law, which were mostly for matter why the defendant should not answer to the action; such as misnomer, defect in the writ, &c., or in other words, objections preliminary to any answer to the declaration, this plea is in fact based upon the allegations in the declaration. The defendant must look into the declaration before he can ascertain the objection which he sets up in the plea of abatement; and in that investigation, he must encounter the matter set up in excuse. The case therefore stands (and if anything more favorably) as if there were no such averment in the declaration, and the plea of abatement was filed, and to this plea the plaintiff had replied the former recovery. Would this be a sufficient replication 1 if so, and we think it would, then the plea is bad, inasmuch as it sets up matter, to which there is already a sufficient answer in the record. In fact, the court must decide, either that the plaintiff in such cases, is bound to create for himself useless costs, or that no action will lie against indorsers, where a separate suit has been once prosecuted against the maker. In the case at bar, it is probable that the suit against the maker was instituted prior to the passage of the joint action law, and he is not to be supposed to have intentionally discharged the indorsers, by his omission to join them in this suit.
    
      Quitman and McMurran, for defendant, R. M. Gaines.
    The only question here is, whether, under the provisions of our statute giving rise to this class of suits, consolidating the maker and indorsers in the same action, the plaintiff can omit joining the maker of the note with the indorsers, where the maker is living and residos in the state? "We think not. The remedy is given entirely by the statute, and the statute must be pursued or the remedy must fail. The statute peremptorily requires that all the parties to the note sued on, living and residing in the state, shall be joined, and authorizes a verdict for some, and against others. Statutes 1824 ■— 1838, pages 717, 718.
    No exception is made in the statute, except in the case of the maker’s death, and of his nonresidence. And none can be made by the counsel or court. If the legislature had intended to make other exceptions, they would have done so. The circumstance of the legislature excepting in case of death, and nonresidence, and making no farther exceptions, shows that no other exceptions were intended. If a separate judgment against the maker can be set up in the declaration, as a legal cause for not joining him in the suit against the indorsers, so the bankruptcy, infancy, &c. of the maker, might be equally alleged as a valid ground for not joining him in the suit. If the court could once depart from the rule laid down in the law, there is no limit to the departure that may be indulged in.
    We think, then, that this court will have no hesitancy in affirming the judgment of the court below.
    
      R. M. Gaines, for the other defendants.
    No question arises in this case as to the effect upon the rights of the parties, of the separate judgment against Ferguson, the maker of the note. The single and simple question is, whether since the act of 1837, the holder of an indorsed promissory note is not obliged to sue the maker and indorsers, living and resident in the state, in a joint action, and whether he will be allowed to maintain any other than, a joint action against the parties so “ living and resident.” In the ca-se of McMillan v. Sprague, et al. 4 Howard, 647, this court affirmed the validity of this act, in strong terms, and quoted with approbation the language of the supreme court of the U. S., in reference to the Ohio statute, “ that it was conceived in the true spirit of distributive justice, and that it violated no principle.”
    The court say, on page 648, “ Since the statute, the action must be joint instead of several, and the execution is accordingly.” And again, “ The effect of the act is to destroy the common law right of election as to which party shall be sued, and now if suit be brought, it must be against the whole.” On page 649, the court say, “ The character of the remedy may fix the character of the contract,' and so. we conceive it to be in this case. When the legislature declared that but one action should be brought against all the parties, this as much made the contract joint as though it had been expressly so declared, at least for the purposes of the remedy given.” The case of Rappleye v. Hill, same book, page 295, is also a strong authority on this question. On page 302,' after quoting the language of the act, the court say, “ It will thus be seen that the only effect of this law is to change the common law rule of pleading. The operation of the new rule thus established, cannot, without a palpable violation of established principles, be limited by the origin or date of the contract.” As little can its operation be limited by the arbitrary act of the plaintiff in trying the experiment of a separate suit against one only of the parties. To justify the construction contended for on the other side, these words ought to be added after the words, “in a joint action,” namely, “ unless the plaintiff choose first to try his luck against the maker in a separate suit.” These decisions of this court seem to me to settle the question beyond all controversy, and in accordance with sound reason and established principles. “ It is the duty of judges to put such a construction upon a statute as may redress the mischief; guard against all subtile innovations and evasions for the continuance of the mischief, pro prívalo commodo; and give life and strength to the remedy pro bono publico, according to the intent of the makers of the law.” 7 Bac. 462. Can any one doubt what was the mischief intended to be remedied by this act, or what was the intent of the law-makers ? In 15 Johns. 389, Chief Justice Spencer lays it down, as the true rule, that the clear and positive words of the enacting part of a law, cannot be controlled by the preamble. How much less can the “clear and positive” words of this law be controlled by the act of one of the parties to a contract, which comes within its provisions.
    It is admitted, in the brief of one of the opposing counsel, that a literal construction of the act would embrace the case, but it is contended, that the existence of a separate judgment against the maker, takes the case out of the reason of the statute. If this position were well founded, every holder of a promissory note in the state might, by his own act, or in combination with one only of several joint parties on the other side, take his case out of the reason of the act, and it would, so far, be a dead letter. This act authorizes the jury to find for some, and against other defendants, and gives the court a similar power, in granting and refusing new trials ; but it peremptorily enjoins that all the parties, “ living and resident ” in the state, shall be sued in a joint action. We wish to be brought into court, according to this provision, in company with all who are jointly liable with us, (if we are liable,) in order that we may see for ourselves the actual position of things; and we deny the right of the plaintiffs to decide for us, that this will do us no good.
    There is nothing in the suggestion, that the defendants should have demurred to the declaration, because it was not incumbent on the plaintiffs to join Ferguson (the maker) in the suit, unless he was “ living and resident ” in the state, which fact not appearing in the declaration, such a demurrer must have been overruled, and the excuse alleged in the declaration would have been regarded as mere surplusage. The truth is, that this averment- should have been reserved, and made the subject of a replication, and as a replication it would be bad. The maker might not choose to avail himself of the fact, as a defence in a joint action, and what right has the plaintiff to make the de-fence for him 1 For this he does virtually, by seeking to excuse him in advance.
   Mr. Justice Clayton

delivered the opinion of the court.

This was an action brought in the circuit court of Adams county, against several persons as indorsers of a promissory note. The declaration, besides the usual averments, alleges that theretofore, at the November term, 1840, of the said court, the plaintiffs recovered judgment against Ferguson, the maker of said note, for the amount thereof. This averment was intended to excuse the failure to join the maker in this action with the indorsers. The defendants in this case, the indorsers, pleaded in abatement that the maker and all the indorsers were at the time the suit was brought and the plea filed, living and resident in the county of Adams; to which plea a demurrer was filed. The court below overruled the demurrer, and judgment was rendered for the defendants, from which the cause comes, by writ of error, to this court.

This action is in direct conflict with the statute, regulating suits of this character. It may be very true that after the judgment against Ferguson, the maker, in the first suit omitting the indorsers, that he could not afterwards be sued in assumpsit upon the note jointly with the indorsers. But it was the fault of the plaintiffs, or of their counsel, thus to have proceeded in the first instance, and this step in breach of the statute, affords no reason for another violation in the second action. H. & H. 595.

It is said, in argument, that the record does not show but that the first judgment was obtained before the passage of the act in question. The act was passed in 1837. The time of bringing the suit does not appear from the record, but the note did not fall due till January, 1838, and the judgment was rendered in November, 1840. We think, therefore, it may fairly be inferred, that the suit was brought after the statute went into operation. And if the plaintiffs desired to exempt themselves from its provisions, it would devolve on them to establish the facts which would have that effect.

Judgment affirmed.  