
    Daniel Stevenson vs. Mary S. Walton.
    The act of 1837, requiring all the drawers and indorsers of notes and bills, living and resident in this state, to be sued in one joint action, embraces all parties who signed the note or bill, as makers.
    If the maker of a note be sued separately, he may plead in abatement the non-joinder of an indorser, living and resident in this state.
    If the defendant plead in abatement the nonjoinder of one indorser only, and there be also other indorsers not sued, the presumption is, they are not liable to suit.
    ERROR from the circuit court of Adams county.
    A statement of the pleadings is made in the opinion of the court.
    Winchester, for plaintiff in error.
    This cause comes up on the decision of the court below, in overruling the plaintiff’s demurrer to the plea in abatement of defendant.
    This was an action in assumpsit, brought by plaintiff, as the holder of a promissory note against the defendant, Walton, as the maker. To this suit the defendant pleaded in abatement for the nonjoinder of Allwine, who is alleged to be one of the indorsers. To this plea the plaintiff demurred.
    Since this cause came into this court the court has, I understand, decided the principal point involved in this cause, in a suit between Johnson v. Patterson & Wiswall, viz. i Whether the maker can require all of the indorsers of a note to be sued with him upon a note 1 That the statute of 1837 is compulsory upon the holder of a note to sue all the parties to a note or bill; and he cannot, if he wishes, discharge the indorser, and proceed against the maker. I will but briefly remark upon this point, and upon the construction of the statute of 1837. In the first section of that act no mention is made of makers of notes, or acceptors of bills, persons who are primarily liable upon such paper. But that act does compel the holder to proceed against drawers and indorsers, persons who are secondarily liable, in a joint action. Is it not the plain intention of the act to protect such persons, and not makers and acceptors, from the whole tenor of the act?
    And are not the maker and acceptor intentionally left out in the first clause of the act, as it can be no injury to them that their securities are not sued 1 The very purpose of the act, it appears to me, will be defeated, which was to protect securities upon notes and bills.
    If the maker can plead a discharge of his indorser by the holder as a bar (for such will be the operation of the decision in this case) to a suit against him, will it not defeat the very object of the law 1
    
    But, independent of this, the demurrer should have been sustained. Courts will require the greatest accuracy in pleadings of this nature. This plea is merely dilatory, and serves to delay the trial of the merits. And courts will, for the slightest defect in pleading upon general demurrer, disallow such pleas. 1 Chitty on Pleading, 446 and 457.
    1. The plea should give the plaintiff a better writ. No mention is made of John Ford, the payee and indorser of said note, in the plea of the defendant. He has taken notice of but one of the indorsers, who, he says, is liable, and should be joined with him; but says nothing of Ford, the other indorser.
    The same objection might lie to a suit against Walton & All-wine, for the reason that Ford is not joined. For this defect the demurrer should have been sustained. See Wilson v. Never s, 20 Pick. R. 20, and case there cited.
    But again, the plea does not aver that the defendant lives and resides in this state, and has a right, for that reason, to have joined with him in this suit, All wine, who is a resident, under the act of 1837.
    
      Dubuisson and Van Hoesen, for defendant in error.
    The error assigned is that the court below erred in overruling plaintiff’s demurrer to the plea in abatement. The demurrer is general and goes to the substance of the plea.
    The plea in abatement is predicated on the act of 1837, which requires that all the drawers and indorsers shall be sued in a joint action. H. & H. 595, sec. 33. - ,
    Nonjoinder of the proper parties to a suit can be taken advantage of by such plea. This is fully recognized in the case in 3 Howard, 78. Neither the statute, nor any of the cases make any distinction between makers and indorsers, as regards the right to plea for the nonjoinder. The act was made to prevent multiplicity of suits, and more especiclly for the benefit of defendants.
    The plaintiff may dismiss, as to indorsers, or any of them, and proceed to take judgment against the rest. 4 H. 293.
    The constitutionality and wisdom of the act are sustained by all the cases above referred to, and also in 4 Howard, 295.
    If the maker cannot plead the nonjoinder, then the statute may be defeated. The maker may be sued alone in an action, and after-proceedings had against the indorsers, and a multiplicity of suits would not be prevented. '
   Mr. Chief Justice ShaReey

delivered the opinion of the court.

This action was founded on a promissory note made by the defendant to one John Ford, who indorsed it to Charles Allwine, who indorsed it to the plaintiff. The defendant pleaded in abatement that All wine was at the time of bringing the suit, and still is, a citizen and resident of thi§ state, which plea was verified by affidavit. To this plea the plaintiff demurred, and the court overruled the demurrer.

It is made a question whether such a defence can be made available by the maker of a note under the act of1837. It seems singular that it 'should be, and yet the language of the act leaves no room for a different construction. It is peremptory that in actions on bills or notes, “ the plaintiff shall be compelled to sue the drawers and indorsers, living and resident in this state in a joint action.” However unreasonable it may seem that the maker of a note should be permitted to make this defence, in view of the liability of the parties, yet it is not altogether without reason. The maker is liable to the indorsers, and if the holder were permitted to proceed against him separately, it might lead to a multiplicity of suits and an accumulation of-costs. We entertain no doubt but what the makers of notes are within the statute, although not mentioned as makers. The word “drawers,” must have been designed to embrace all parties who had signed a note or bill as maker.

But it is said the plea was bad, because Ford was also an indorser, and is not noticed in the plea. The holder is bound to sue all parties resident in the state. If he leaves out any who reside in the state, the nonjoinder of such defendants can only be taken advantage of by plea in abatement. If such a plea is not filed, then the presumption may well be indulged that all who reside in the state have been sued. So when a defendant pleads in abatement the nonjoinder of parties, the presumption is that he has given the names of all who reside in the state, and he would be estopped from again pleading that other parties should be made defendants, because in such a plea he must state who are liable to be sued. We do not think that it was incumbent on the defendant to plead that Ford, the other indorser, was a nonresident. If it had turned out on issue that he was a resident, then the plea would have been disproved; or, if on bringing in Allwine, he had pleaded the nonjoinder of Ford, then the plaintiff might have discontinued as to all but the original defendant, as was done in the case cited from 20 Pick. But wo are trying this plea^ on a demurrer; and though Ford indorsed the note, yet when the plaintiff left him out of the action, the presumption is that he was not liable to be sued. So when the defendant pleaded the nonjoinder of Allwine; the presumption still is that Ford is not liable to be sued, and if he is, the plaintiff should have taken issue on the plea, and on proof that Ford was liable, the plea would have been disproved, but it is not on its face defective.

Judgment affirmed.  