Under sec. 827 of the Revised Statutes of the United States
relating to the District of Columbia, persons severally liable upon
the same obligation or instrument, including the parties to
promissory notes, may all or any of them, at the option of the
plaintiff, be included in the same action.
This was an action brought by Bartlett, Robbins, & Co.
against Howard, Peugh, Lacey, and Ross, as makers, and Helmick and
Burdette, as endorsers, of a certain joint and several promissory
note for $1,993, dated July 16, 1873, and payable to the order of
said Helmick. The note was duly protested for nonpayment, and the
endorsers served with notice. The defendants, with the exception of
Ross and Helmick, were served
Page 95 U. S. 638
with process; but the action was subsequently dismissed as to
all of them but Burdette. Judgment by default was rendered against
him, which the general term, upon appeal, affirmed. Burdette then
sued out this writ, and here assigns for error:
1. The court below erred in giving judgment for plaintiffs,
because there was misjoinder of parties defendants.
2. Because the makers and endorsers of a promissory note cannot
be joined as defendants in the same action.
Page 95 U. S. 639
MR. JUSTICE HUNT delivered the opinion of the Court.
By sec. 827 of the Revised Statutes of the United States
relating to the District of Columbia, it is enacted as follows,
"Where money is payable by two or more persons jointly or
severally, as by joint obligors, covenantors, makers, drawers, or
endorsers, one action may be sustained and judgment recovered
against all or any of the parties by whom the money is payable, at
the option of the plaintiff. But an action against one or some of
the parties by whom the money is payable may, while the litigation
therein continues, be pleaded in bar of another action against
another or others of the said parties."
14 Stat. 405, � 20.
This is a portion of an act of Congress entitled "An Act to
amend the law of the District of Columbia in relation to judicial
proceedings therein." In the case before us, an action was
commenced and the process served upon two of the several makers of
a promissory note and one of the endorsers thereof, there being
other makers and other endorsers of the note.
The statute is not happily expressed, whatever may have been the
intention of its framers. It is contended, on the one hand, that it
was designed merely to modify the common law rule, that, in case of
a joint and several contract, all the parties must be sued in one
action, or a separate action be brought against each, and to allow
the plaintiff to sue one or more of the parties in one action, and
to omit a portion of them, at his pleasure.
Page 95 U. S. 640
It is insisted, on the other hand, that it is an enactment in
the spirit of the provisions of numerous state statutes, permitting
the holder of a note to join the makers and endorsers, at his
discretion, in the same action. The latter, we are told in the
brief, has been the uniform construction of the statute by the
courts of the District since its passage, more than ten years
since, and we are of the opinion that it is a sound construction.
The words, "as by joint obligors, covenantors, makers, drawers, or
endorsers," are inserted by way of illustration, and, like many
other intended illuminations, serve but to darken the subject.
Omitting these words (as parenthetical), the statute provides that
one action may be sustained against all or any of the parties by
whom payable, where money is payable by two or more persons jointly
In the present case, there is a sum of $1,993 payable upon an
instrument in writing. It is payable by Howard, one of the makers
of the note. It is payable also by Burdette, one of the endorsers
of the note, and it is the same sum of $1,993 that is payable by
each of them. A collection of the money by the holder from one of
the parties would be a bar to further proceedings by him against
the others. So an action simply against Howard alone would, in our
opinion, give Burdette the benefit of the latter clause of the
statute, to-wit, that an action against one of the parties, while
it continued, might be pleaded in bar of another action against
him, as another party to the contract. So far as the present
question is concerned, the act of Congress was intended to produce
the effect of the statutes of several of the states, to-wit,
"Persons severally liable upon the same obligation or
instrument, including the parties to bills of exchange or
promissory notes, may all or any of them be included in the same
action, at the option of the plaintiff."
2 Edm.Stat. of N.Y., p. 32.
The judgment of the Supreme Court of the District of Columbia
was right, and is