
    Ellis v. Park.
    •It is competent under the statute (Hart. Dig., art. 704) to dismiss as to one of several defendants not served and proceed against those served, whether the liability of the defendants be joint and several or joint only.
    The court cannot know judicially that “St. Louis, Mo.,” in the date of a contract means St* Louis in the State of Missouri.
    Where a contract would be a legal one if made in this Stale it will be taken to have been so where it was made, unless it be shown by the party impeaching its validity that by the lcx loci it was illegal and void.
    Error from Smith. The defendant in error sued the plaintiff in error and one Merrill on their joint promissory note, as follows :
    “ $S3S. 10 St. Louis, Mo., April 29,1S46.
    “Sis months after date I promise to pay to Andrew Park, or order, eight hundred and thirty-eight ten one-hnndrodths dollars, with interest at the rate of ten per cent, per annum after maturity until paid, for value received, negotiable and payable without defalcation or discouut.
    (Signed) And. J. Ellis.
    Chas. G-. MeReill.”
    The petition alleged that the defendant Merrill resided in the State of California. He not having been served the plaintiff discontinued as to him, and proceeded to judgment against the defendant Ellis for the principal sum and the interest stipulated in the note, computed up to the time of the rendition of judgment.
    The defendant brought a writ of error, and assigned as error—
    1st. The discontinuance as to the defendant Merrill and proceeding to judgment against his co-defendant Ellis.
    2d. The allowance, of interest, without averment and proof of the legal rate of interest by the laws of Missouri.
    
      Ocliiliree imd Jennings, for plaintiff in error.
    
      Heaves and Cleveland, for defendant in error.
   Wheeleb, J.

The act of 1840 (nart. Dig., 704) expressly authorizes the practice, adopted in this ease, without reference to the distinction between contracts joint and several and those which are joint only. There can be no doubt, wo think, that the statute embraces a case like the present, and consequently that it was competent for the plaintiff to discontinue as to the defendant not served and proceed to judgment against his co-defendant.

The remaining question is free from difficulty. It does not appear that the mote was not made in this State. There is neither averment nor proof that it was made or to bo paid elsewhere. Mor can we judicially know that “St. Louis, Mo..” is in the State of Missouri. (Andrews v. Hoxie, 5 Texas R., 171.) Moreover, we must suppose, until the contrary appear, that it was competent elsewhere, as it is here, for the parties to stipulate for interest at ten per cent. The contract being legal and valid hero must he taken to have been so where made, unless it be shown by the party impeaching its validity that by the lex loci it was illegal and void.

There is no error in the judgment and it is affirmed.

Judgment affirmed.  