
    No. XXVII.
    Wm. H. Binge and Jas. Blair v. Sampson Smith.
    (See .)
    
      Appeal from Bed River County.
    
    
      
      .—Binge v. Smith, p. 616.
      1 The rule against multiplicity of suits has special favor in our system of procedure, and a party who can enforce his right in one suit will not be permitted to resort to many. Holdeman v. Knight, Dal., 566; Chevalier v. Rusk, Dal., 611; Pitts v. Ennis, 1 T., 604; Smith v. Power, 2 T., 57; Francis v. Northcote, 6 T., 185, 188; Moore v. Minerva, 17 T., 20, 23; Clegg v. Varnell, 18 T., 294; Blair v. Gay, 33 T., 157; Lyles v. Murphy, 38 T., 75; Bond v. Dillard, 50 T., 302; Goldman v. Blum, 58 T., 630; Rush v. Bishop, 60 T., 177; G. H. & S. A. Ry. v. Dowe, 70 T., 5; Moody v. Smoot, 78 T., 119; Middlebrook v. Bradley, 86 T., 706; Mathonican v. Scott, 87 T., 396; Mathis v. Pridham, 1 T. C. A., 58; St. L. S. W. Ry. v. Moss, 9 T. C. A., 6; Mateer v. Cockrill, 18 T. C. A., 391; S. A. & A. P. Ry. v. Griffin, 20 T. C. A., 91; Wilson v. P. & N. Ry., 23 T. C. A., 706; Cox v. Lloyd, 1 App. C., sec. 123; Vogelsang v. Mensing, 1 App. C., sec. 1165; H. & T. C. Ry. v. Stewart, 1 App. C., sec. 1246; I. & G. N. Ry. v. Donalson, 2 App. C., sec. 238. A second suit may be maintained upon a judgment when a second judgment will be more advantageous than the first. Stephens v. Stone, 94 T., 415.
      2 Surety can not be sued, unless the principal has been or is sued simultaneously with him, except when the principal is a nonresident, or can not be reached by ordinary process of law, or his residence is unknown and qan not be ascertained by use of reasonable diligence, or is dead or insolvent. The same rule applies to indorsers, guarantors and drawers of accepted bills. Plaintiff can not dismiss as to principal and take judgment against surety, etc., without showing one of the statutory grounds. Rev. Stats., 1895, arts. 1204, 3818, 3819. Campbell v. Beckwith, 17 T., 439; Crawford v. Jones, 24 T., 382; Burden v. Cross, 33 T., 685; Farris v. Berry, 33 T., 701; Under v. Anderson, 37 T., 550; Muenster v. National Bank, 92 T., 422; Weldert v. Durst, 15 T. C. A., 81; Douthit v. Martin, 15 T. C. A., 559. 'Where there are several principals, can not dismiss as to one of them and take judgment against surety. Look v. Cornelius, 4 T., 303; Moore v. Jones, 6 T., 227; Barnett v. Taylor, 30 T., 453; Welch v. Phelps & Bigelow Windmill Co. (T. C. A.), U. R. C., 1896. The above rule applies only to cases where plaintiff alleges suretyship, or where it appears from the face of the instrument sued on. In other cases, plaintiff may sue all or a part, and dismiss as to a part. Ritter v. Hamilton, 4 T., 325; Ennis v. Crump, 6 T., 85; Terrill v. Townsend, 6 T., 149; Lewis v. Riggs, 9 T., 164; Keesey v. Old, 82 T., 22; Bute v. Brainerd, 93 T., 137; Jameson v. Officer, 15 T. C. A., 212; Hooks v. Bramlette, 1 App. C., secs. 867, 868 (overruling Unger v. Anderson, 37 T., 550); McDonald v. Holt, 1 App. C., sec. 1014; Head v. Cleburne B. & L. Assn. (T. C. A.), U. R. C., 1893. If one of the principals is a married woman, may dismiss as to her. Shipman v. Allen, 29 T., 17. Right of surety not to be sued unless principal has been or is simultaneously sued, is a personal privilege, and must be taken advantage of by plea in abatement. He can not object for the first time on appeal, that principal was not sued or that suit was dismissed as to principal. Petty v. Cleveland, 2 T., 404; Ritter v. Hamilton, 4 T., 325; Wiley v. Pinson, 23 T., 486; Shipman v. Allee, 29 T., 17; Yale v. Ward, 30 T., 17, 22; Hooks v. Bramlette, 1 App. C., sec. 863; Gamble v. Talbot, 2 App. C., sec. 730; Sherwood v. Jordan, 2 U. C., 610; Head v. Cleburne B. & L. Assn. (T. C. A.), U. R. C., 1893. Where principal is dead, insolvent or beyond court’s jurisdiction, the debt becomes an original liability of surety and he may be sued alone. Within jurisdiction, means within reach of process. If principal is dead, surety may be sued before claim is presented to executor. If principal dies while shit is pending, judgment may be rendered against surety alone. Scott v. Dewees, 2 T., 153; Merriwether v. Lewis, 2 T., 340; Ennis v. Crump, 6 T., 85; Walker v. Collins, 22 T., 189; Rutherford v. Harris, 22 T., 166; Foster v. Champlin, 29 T., 22; Aldridge v. Mardoff, 32 T., 204; Scantlin v. Kemp, 34 T., 388; Houghton v. Ledbetter, 37 T., 161; Toland v. Swearingen, 39 T., 447; Boggs v. State, 46 T., 10; Willis v. Chowning, 90 T., 617; First Nat. Bank v. De Morse (T. C. A.), U. R. C., 1894. While executor of .principal may be sued with surety, he is not entitled to make nonresident heirs of deceased, principal parties. Henderson v. Kissam, 8 T., 46; Walker v. Collins, 22 T., 189. Judgment against principal merges cause of action, and separate suit can not be maintained afterwards against surety. Wooters v. Smith, 56 T., 198; Bute v. Brainerd, 93 T., 137.
    
   JONES (William J.), Justice.

—This case is brought up by writ of error from the District Court of Red River County, upon a judgment rendered therein at the spring term of 1844, and the record presents the following facts: Suit was instituted by Sampson Smith against William H. Binge as the maker, and James Blair as indorser of a promissory note, made by said Binge to said Blair and indorsed by him to the defendant in error, for the sum of $300, payable on or before the 1st day of January, 1843. The defendants, after being duly cited, failing to appear and answer the plaintiff’s petition, judgment by default nisi was rendered against them.

Upon an inspection of the record by the plaintiffs in error several grounds are assigned as causes of reversal of the judgment rendered in the district court. We will only examine the first and second assignments of error.

1. The cause of action being a joint contract made by Binge and Titus, the said Titus, or in case of his decease, his legal representative should have been sued; or the plaintiff’s petition should have averred that some legal steps had been taken against the said Titus, or in case of death, against his representative.

2. That the maker and indorser, although sued, could not be properly joined in the same action.

The first ground of error is not sustained either by the common law or by out statutes relating to successions. At common law it is clear, in case of a joint contract, if one of the parties die the survivor alone can be sued. In equity the principal and the legal representative of the deceased security may be joined; but as the plaintiff had his option, and he alone can be injured by the failure to join the principal and the representative of the deceased security in his action, it can not be considered error in the plaintiff to sue the principal alone. The security being sued and the principal omitted, might be cause of error, without an averment sufficient in law to excuse such omission. But the seventeenth and eighteenth sections of the act of Congress regulating the settlement of successions, require that every claimant against a succession shall present his claim to the executor or administrator before suit is commenced, and if accepted by him, shall be ranked among the acknowledged debts against the estate. If so accepted and placed among the acknowledged debts of the succession, the plaintiff could not have sued the representative of Titus.

Upon the second assignment of error, that the maker and indorser could not be properly joined in the same action, the common law authorities, although well settled, are not applicable to this case; and the court hére would not feel itself authorized to vary a practice established by such high authority, if it were not that the spirit and intent of our own local legislation justify us in making the departure.

The acts of Congress of December 22, 1836, and January 25, 1840, although they do not require the maker and indorser of a promissory note to be sued together, yet they clearly indicate, from their peculiar phraseology, that they may be joined in one and the same action, if sued simultaneously. The language of the first statute is, that “no person shall be sued as indorser or security, unless suit has been first or simultaneously commenced against the principal; provided the principal is within the jurisdiction of the courts of the Republic.”

IndorseTs and securities seem, by this statute, to have been placed upon the same footing. It can not be doubted that the principal and security must be joined in the same action, if both be living. May we not then fairly raise the presumption that the statute, in coupling security and indorser, intended to give the same remedy against maker and indorser as against principal and security, if both were sued simultaneously ?

But the statute was not considered by Congress a sufficient protection to securities and indorsers, and the act of January 25, 1840, dispensing with the necessity of protest, after referring to drawers, indorsers and assignors, enacts, that “every such party (meaning drawers, indorsers' and assignors) shall be held responsible as security for the final payment of a promissory note, check, draft,” etc. This statute, so obviously intended to guard securities and indorsers against the delays and frauds of the holders of negotiable or assignable paper, recognizes the indorser as a security in express terms; and to that extent makes the! law appertaining to principal and security equally applicable to drawer and indorser.

The statute of 1840 does not imperatively require, as it does not expressly exclude, the joinder of the maker and indorser. Under its provisions, the maker may be sued at the first term of the district court (or at the second term for good cause of failure shown), after the obligation falls due, and the latter may be cited at any subsequent term; but under the provisions of the act of 1836, still in force, if the maker and indorser be sued simultaneously, they may and should be joined in the same action.

This practice would prevent a multiplicity of suits and an accumulation of costs, which courts of justice should ever seek to avoid.

The joinder of the maker and indorser does not preclude each party from setting up his own defense; and the court will render such judgment against each as the facts and the law of the case may require.

The court here settles it as a matter of practice, under the provisions of our statutes, that the drawer and indorser of a promissory note, bill of exchange, check, draft or other mercantile negotiable instrument, may and should be joined in the same action, if both be sued simultaneously.

And where separate actions are brought at different terms in the same court, the plaintiff may be required to consolidate, in order to save costs; unless in the opinion of the presiding judge manifest injustice will thereby be done to one or other of the defendants.

It is therefore considered here, that there is no sufficient error apparent upon the face of the record from the court below to reverse, but that the judgment of the said court should be affirmed.

Affirmed.

Judges Morris and Baylor say: “Upon the first point decided in this opinion we concur with our brother judges. On the second, wq totally dissent; and are of opinion that the parties defendant were improperly joined, which would be sufficient cause for reversal.”  