This was an action on the case tried before his Honor Judge Nash, at Spring Term, 1841, of Pasquotank Superi- or Court of Law, upon the following case, agreed: The plaintiff was the surety of one Knox, and suit was commenced against him alone, by the defendants, on the note given by Knox and himself. Davis, the defendant in that suit, and plaintiff in this, pleaded “ that he was the surety of Knox,” and that plea was found in his favor.
Decided 1841-06-05
Daniel, J.
¶1
In all cases of joint obligations, assumpsits or agreements, suits may be brought and prosecuted on the same against the whole, or one or more of the persons making such contracts. Rev.
St. c.
31,
s.
89. Davis, under the aforesaid act, had been sued alone on a bond executed jointly by himself and one Knox. The plea put in by Davis in the County Court, “ that he was a surety for Knox,” was an immaterial plea. For the act of Assembly, of which he wished to take the benefit, applied only to trials at law, where both the principal and surety to the contract were defendants. In such a case, the jury by their verdict, or the justice of the peace in his judgment, (if it appeared by evidence,) should discriminate the principal and surety: which discrimination was to be endorsed on the execution, and the officer, by force of the act, was to satisfy
it first
out of the property of the principal debtor, or, for want of such sufficient property of the principal, then out of the property of the surety.
Rev. St. c.
31,
s.
131, 132. Where the surety was sued alone, as Davis had been, the aforesaid act had no applicability. Sanderlin by law, had a right to have the writ of
cct. sa.
issued on his judgment against Davis ; and the County Court had no authority, under that act, to endorse on the
ca. sa.
the direction to the Sheriff which they did.—
*391
Knox had not been a party defendant; there was no ment against him; his being absent from the State and having no property here, made no difference; and of course the Court could not legally award execution against his property. The whole memorandum or direction endorsed on the
ca, sa.
was therefore absurd and unmeaning, and the Sheriff acted correctly in obeying the legal command to him, contained in the face of the writ. We are of the opinion that Davis has not sustained any injury in consequence of the acts of the Sheriff, whereby he could legally sustain this action.
