
    *Raine v. Rice et al.
    January Term, 1857,
    Richmond.
    (Absent, Nash, J.)
    1. Pleading — Plea to Jurisdiction — What It Must Show —A plea in abatement to the jurisdiction of the court, on the ground that the defendants did not reside in the county -where the action was brought, nor did the cause of action arise there, must not only show where the defendants do reside, hut also where the cause of action arose.
    2. Action of Debt  —Negotiable Note—Demurrer to Evidence  —Judgements  —In an action of debt, under the statute, against the drawer and endorser of a protested negotiable note, upon a demurrer by both defendants to the evidence offered by the plaintiff, in which the plaintiff joins, the court may give judgment’ against one defendant and in favor of the other.
    5. Demurrer to Evidence—Inference by Court—Post» Office of Indorser to Negotiable Note.  —On a demurrer to evidence, the court will not infer, in the absence of any evidence on the subj ect, that the post-offlce of the endorser of a negotiable note was at the place to which the protest states notice of the dishonor of the note was sent.
    This was an action of debt, broug-ht by Rice & Dawson, co-partners, in the Circuit Court of Appomattox county, on the 2nd July, 1850, on a protested negotiable note against Charles A. Raine, the maker, and R. K. Raine, an endorser. The writ was returned “executed.” The declaration was filed and the defendants pleaded in abatement to the jurisdiction of the court as follows: “That they, nor either of them, reside in the county of Appomattox, and that this cause of action, or no part thereof, arose in the said county; and that they and each of them resided in the county of Cumberland when- the' process in this cause was issued and served upon them, and have ever since resided in the said county of Cumberland, and this the said defendants are ready to verify. Wherefore they pray judgment, whether this court can or will take further cognizance of the action aforesaid.” The plea was supported *by the affidavit of both defendants. To this plea the plaintiffs demurred, and the court" sustained the demurrer. The defendants thereupon pleaded nil debet, upon which the plaintiffs took issue. The plaintiffs gave in evidence a negotiable note, signed by Charles A. Raine and endorsed by R. K. Raine, together with a notarial protest, with the affidavit of the notary. The protest stated, that notice was sent on the day the note was dishonored to R. K. Raine at ffarmville, Va., but there was no proof in the cause that the post office of R. K. Raine was at ffarmville.
    This being all the evidence offered, the defendants demurred thereto, and the jury found a verdict for the plaintiff, subject to the opinion of the court, on the demurrer to evidence. The court, upon consideration of the demurrer, gave judgment for the plaintiffs against the defendant Charles A. Raine, for the debt, interest, charges of protest, and for the defendant R. K. Raine against the plaintiffs for his costs.
    To this judgment Charles A. Raine obtained a supersedeas from the Court of Appeals.
    Johnson, for the appellant:
    The plea in abatement was sufficient, and the demurrer thereto should have been overruled. It showed that the court could not take cognizance of the cause, and it furnished the plaintiffs with a good writ in another court, where the justice of the case might be effectually administered. It is true, that it did not show where the cause of action arose, but the defendants were not bound to show two courts where the plaintiffs might bring their action. In Bradley v. Welch, 1 Munf. 284, the plea was rejected, not because it was bad, but because it was offered too late.
    The demurrer to the evidence should have been sustained. It was a demurrer to the whole evidence, as being insufficient to sustain a joint action against joint defendants. The plaintiffs, by joining in the demurrer, ^risked their cause upon the sufficiency of the evidence to sustain the action against both defendants.
    Garland, for the appellees:
    
      The plea to the jurisdiction was fatally defective, in not showing where the cause of action arose. Middleton v. Pinnell, 2 Grat. 202. The demurrer to the plea operated as a special demurrer. Horton et al. v. Townes et al., 6 Heigh, 47. By the statute, a joint action is given against the drawer and endorser of a negotiable note. In a joint action ex contractu, the jury may lind the issue for one defendant and against the other; and, if so, why may not the court upon a demurrer to the evidence? If there was any doubt upon that question, it is removed by the Code of 1850, chap. 172, 1 49, p. 653; chap. 177, § 19, p. 674. The evidence against C. A. Raine was complete when the note was offered. It required the protest and proof of legal notice of it against R. K. Raine, so that the evidence in the joint action was just the same and as distinct as to each as if there had been separate actions. The demurrer only transferred the trial of the issue from the jury to the court. If there was any error, it was in sustaining the demurrer as to R. K. Raine. As there was no conflicting testimony offered, it might reasonably have been inferred that E'armville, Va., was the post office of R. K. Raine.
    
      
      Plea to Jurisdiction — What It Must Show. — In accord with the proposition laid down in the principal case, see Middleton v. Pinnell, 2 Gratt. 202. The principal case was distinguished in Warren v. Saunders, 27 Gratt. 267. See what is said in this case concerning the principal case and Middleton v. Pinnell, 2 Gratt. 202. See principal case also cited in Guarantee Co. v. National Bank, 95 Va. 486, 28 S. E. Rep. 909; Vinal v. Core, 18 W. Va. 23.
      See further, monographic note on “Abatement, Pleas in” appended to Warren v. Saunders, 27 Gratt. 259.
    
    
      
       Action of Debt.—See monographic note on “Debt, The Action of” appended to Davis v. Mead, 13 Gratt. 118.
    
    
      
       Demurrer to Evidence.—See monographic note on "Demurrer to the Evidence” appended to Tutt v. Slaughter, 5 Gratt. 364.
    
    
      
       Judgments.— See monographic note on “Judgments” appended to Smith v. Charlton, 7 Gratt. 425.
    
    
      
       Demurrer to Evidence—Inference by Court—Post-Office of Indorser of Negotiable Note.—Linkous v. Hale, 27 Gratt. 668, was an action of debt against the endorsers of a protested note. The protest of the notary stated that he “placed in the post-offlce of this place four written notices, one directed to the payer, and one directed toH. &L. atB., Va., endorsers, informing them,” etc. On demurrer to the evidence it was held that the jury would have been warranted to infer from this evidence that the residence of the defendants was in B., and, that, upon a demurrer to the evidence, the court must make the same inference. In delivering the opinion of the court, Judge Monoure (p. 673-74) said: “The case of Raine v. Rice, etc., 2 Patton & Heath 529, was referred to in the argument, and has been considered as a decision of the former special court of appeals of the state to the contrary. Such, however, will be found on examination not to be the fact. It is true the reporters state, in the syllabus of the case, that ‘on a demurrer to evidence, the court will not infer, in the absence of any evidence on the subject, that the post-offlce of the endorser of a negotiable note was at the place to which the protest states notice of the dishonor of the note was sent.’ But the case itself shows that it decided no such question, and no such question was involved in it. It involved the question of the liability of the maker, under the circumstances of that case, and not of the endorser.”
      On matters pertaining to negotiable paper, see generally, monographic note on "Bills, Notes and Checks” appended to Archer v. Ward, 9 Gratt. 622.
    
   Per curiam.

The judgment of the court below is affirmed.  