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
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.
Page 41 U. S. 93
STORY, Justice, delivered the opinion of the Court.
This is a writ of error to the Circuit Court of the District of
Mississippi. The original action is assumpsit upon a promissory
note signed by Hugh M. Keary and Patrick F. Keary, dated at
Pinkneyville, in the State of Mississippi, on 18 February 1838,
whereby (as the declaration alleges) the makers promised, twelve
months after date, to pay to Charles A. Lacoste, by the name and
description of Briggs, Lacoste & Company or order $4,863.55,
payable and negotiable at the Planters' Bank in Natchez, and which
note was endorsed by Lacoste by the name and description of Briggs,
Lacoste & Company to the plaintiffs, the Farmers' &
Merchants' Bank of Memphis. The declaration avers that the
plaintiffs are citizens of Tennessee and that the defendants are
citizens of Mississippi, the makers and the endorser being joined
in the suit. This joinder was in pursuance of a statute of
Mississippi of 13 May 1837 (Laws of Mississippi [edit. 1838] 717),
whereby it is enacted
"That in all actions founded upon bills of exchange and
promissory notes, the plaintiffs shall be compelled to sue the
drawers and endorsers, living and resident in this state, in a
joint action, and such suit shall be commenced in the county where
the drawer or drawers reside, if living in the state, and if the
drawer or drawers be dead or reside out of the state, the suit
shall be brought in the county where the first endorser
resides."
It seems that this statute had been adopted by the district
judge of the District of Mississippi in the absence of the judge of
this Court assigned to that circuit by a rule of court, and upon
the footing of that rule, the present suit was brought.
The makers of the note pleaded a plea to the jurisdiction of
the
Page 41 U. S. 94
court, averring that the cause of action accrued to the
plaintiffs by virtue of the promissory note made payable to and
endorsed by Lacoste to them, and that they, the makers, at the time
of making the note and at the time of the commencement of the
action, were citizens and residents of the State of Mississippi. To
this plea there was a demurrer, which, upon the hearing, was
overruled and the makers assigned to plead over, which, having
failed to do, and Lacoste, the other defendant having failed to
appear, judgment was finally rendered against all the defendants,
and from that judgment the present writ of error has been brought
to this Court.
The first and main question presented to us for consideration is
whether the present action is sustainable in the circuit court
jointly against the makers and the endorser under the circumstances
disclosed in the record. In our judgment, it is not. The statute of
Mississippi,
proprio vigore, is of no force or effect in
the courts of the United States, it not being competent for any
state legislature to regulate the forms of suits or modes of
proceeding or pleadings in the courts of the United States; but the
sole authority for this purpose belongs to the Congress of the
United States. 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 been actually adopted, they are obligatory, but no
further. 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
subject of the jurisdiction or practice or proceedings in such
court.
It is obvious that the latter clause of the statute of
Mississippi already cited, which provides for the bringing of suits
upon bills of exchange or promissory notes in the county where the
drawers live, or, under certain circumstances, in the county where
the first endorser lives, is utterly incompatible with and
repugnant to the known organization and jurisdiction of the courts
of the United States. Suits in these courts are, by the Judiciary
Act of 1789, ch. 20, § 11, to be brought in the district
whereof the defendant (being a citizen of the United States) is an
inhabitant or in which he shall be found at the time of serving the
writ, and the
Page 41 U. S. 95
suits are cognizable in no other places than those assigned for
the regular holding of the terms of the courts. There is no
pretense, therefore, to say that the circuit court could by any
rule adopt the state law upon this subject.
As little real ground is there for maintaining that the court
had authority to adopt the other part of the state statute,
requiring that the drawers and endorsers of bills of exchange and
promissory notes should be compellable to be joined by the
plaintiff in a joint action. The Judiciary Act of 1789, ch. 20, in
the 11th section, gives jurisdiction to the circuit court of suits
between a citizen of the state where the suit is brought and a
citizen of another state, and, among other exceptions not
applicable to the present suit, it excepts
"any suit to recover the contents of any promissory note or
other chose in action in favor of an assignee unless the suit might
have been prosecuted in such court to recover the contents if no
assignment had been made, except in cases of foreign bills of
exchange."
It is plain upon the language of this clause that as the makers
and the payee of the promissory note in this case were all citizens
of Mississippi, no suit could have been maintained between them
(the original parties) in the circuit court. But the same objection
does not apply to a suit on the same note by the plaintiffs, as
endorsees, against their immediate endorser, Lacoste, for there is
an immediate privity of contract between them, and they are
citizens of different states. This was long since settled by the
decision of this Court, in
Young v.
Bryan, 6 Wheat. 146. So that it is manifest that as
between the makers and the plaintiffs, the present suit is not
maintainable, and as between the endorser and the plaintiffs as
endorsees it is maintainable, by the laws of the United States. The
result, therefore, of giving effect to the statute of Mississippi
and the rule of the court adopting the same would be either that
the circuit court, in contravention of the express terms of the
Judiciary Act of 1789, ch. 20, would be obliged to maintain
jurisdiction over the makers, which is prohibited by that act, or
else would be compellable to surrender jurisdiction over the
endorser which the same act confers on it. Certainly such a
doctrine cannot be asserted to be well founded in law. If it were
admitted, it would enable the state legislatures, by merely
changing the modes of remedial justice or requiring different
parties, under different and
Page 41 U. S. 96
distinct contracts, to be joined in one and the same suit, to
oust the courts of the United States of all the legitimate
jurisdiction conferred upon them by the Constitution and the acts
of Congress.
For these reasons we are of opinion that the present suit, so
far as it respects the jurisdiction of the circuit court over the
makers of this note, is ill founded, and that the plea of the
makers to the jurisdiction is good in point of law, and that the
suit being a joint action, founded upon distinct and independent
contracts, is incapable of being sustained in the courts of the
United States against any of the defendants. The consequence is
that the judgment must be
Reversed and the cause remanded to the circuit court with
directions that the plaintiffs take nothing by their writ.
Order
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the Southern
District of Mississippi, and was argued by counsel, on
consideration whereof it is now here ordered and adjudged by this
Court that the judgment of the said circuit court in this cause be
and the same is hereby reversed and annulled, and that this cause
be and the same is hereby remanded to the said circuit court with
directions to enter judgment for the defendants in conformity to
the opinion of this Court.
