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KEARY V. FARMERS' & MERCHANTS' BANK OF MEMPHIS, 41 U. S. 89 (1842)

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U.S. Supreme Court

Keary v. Farmers' & Merchants' Bank of Memphis, 41 U.S. 16 Pet. 89 89 (1842)

Keary v. Farmers' and Merchants' Bank of Memphis

41 U.S. (16 Pet.) 89

Syllabus

A promissory note was drawn by Hugh M. Keary, and Patrick F. Keary, dated at Pinkneyville, Mississippi, in favor of Charles A. Lacoste, payable twelve months after date at the Planters' Bank of Natchez. The note was endorsed by Charles A. Lacoste to the Farmers' Bank of Memphis, Tennessee. The note having been protested for nonpayment, the Farmers' Bank of Memphis instituted a suit in the Circuit Court of Mississippi against the drawers and endorser, alleging that they were citizens of Tennessee and that the defendants were citizens of Mississippi. The action was against the drawers and endorser of the note, they being joined in the suit in pursuance of a statute of Mississippi of 1837 which required that in all actions on bills of exchange and promissory notes, the plaintiff shall be compelled to sue the drawers and endorsers, resident in the state in the county where the drawers live, in a joint action. This statute had been adopted by the judge of the District of Mississippi, in the absence of the judge of the supreme court assigned to that circuit, by a rule of court, and in conformity with the rule, this suit was instituted. The defendants pleaded to the jurisdiction of the court on the ground that the drawers and drawee of the note were, when it was made, citizens of Mississippi, and this plea being overruled on demurrer, the circuit court, on the failure of the drawers to plead over and the failure of Lacoste to appear, gave a judgment for the plaintiff.

This action cannot be sustained in the circuit court jointly against the drawers and endorser of the note. The statute of Mississippi is not in force or effect in the courts of the United States, the sole authority to regulate the practice of the courts of the United States being in Congress.

So far as the acts of Congress have adopted the forms of process and modes of proceeding and pleadings in the state courts or have authorized the courts thereof to adopt them and they have actually adopted them, they are obligatory, and no farther. But no court of the United States is authorized to adopt by rule any provisions of state laws which are repugnant to or incompatible with the positive enactments of Congress upon the jurisdiction or practice or proceedings of such courts.

The law of Mississippi is repugnant to the provisions of the act of Congress giving jurisdiction to the courts of the United States and organizing the courts of the United States.

No suit against the drawers of the note could be maintained in the circuit court. The eleventh section of the Judiciary Act of 1789, allows suits on promissory notes to be brought in the courts of the United States in cases only where the suit could have been brought in such court if no assignment had been made. The makers and payee of the note having been citizens of Mississippi, the circuit court had no jurisdiction of a suit against the makers. Between Lacoste, the endorser, and the plaintiffs below it was different, for on his endorsement to citizens of another state chanroblesvirtualawlibrary

Page 41 U. S. 90

he was liable to a suit by them in the circuit court. But the joining of those who could not be sued in the circuit court with the endorser made the whole action erroneous. The action was founded on distinct and independent contracts.

In the District Court for the Southern District of Mississippi an action was instituted by the President, Directors and Company of the Farmers' and Merchants' Bank of Memphis, citizens of Tennessee, against the plaintiffs in error, Hugh M. Keary, Patrick F. Keary and Charles A. Lacoste, citizens of the State of Mississippi, on a promissory note made by Hugh M. Keary and Patrick F. Keary in favor of and endorsed to the bank by Charles A. Lacoste. The action was afterwards transferred to the Circuit Court of the United States for the District of Mississippi.

By a statute of Mississippi, suits on promissory notes are prohibited to be brought in any other form than against all the parties, drawers and endorsers in a joint action, and the action must be prosecuted in the county in which the drawers reside. By a rule of the circuit court adopted by the district judge, sitting in the circuit court and in the absence of the judge of the supreme court assigned to sit in that circuit, the practice of the courts of Mississippi in conformity with the statute was adopted as the practice of the circuit court.

Process was served on all the defendants, and two of the defendants, Hugh M. and Patrick F. Keary, entered a plea to the jurisdiction of the court, averring that the cause of action, if any, accrued to the plaintiffs by virtue of the promissory note, made payable to the order of Charles A. Lacoste and by him, Lacoste, endorsed to the plaintiffs, and that at the time of making the aforesaid note and at the time of the commencement of the plaintiffs' action, the said defendants and Charles A. Lacoste were citizens and residents of the said State of Mississippi. The plaintiffs below, the defendants in error, demurred to this plea, and the circuit court sustained the demurrer. The defendant, Lacoste, having made default and no further plea having been entered by the other defendants, the court rendered a joint judgment against all the defendants. The defendants prosecuted this writ of error. chanroblesvirtualawlibrary

Page 41 U. S. 93





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