#### WILLIAM H. DAVIS vs. WILLIAM W. SANDERLIN & al.

In all cases of joint obligations, &c. suit may be brought against the whole,"or one or more of the personsjnaking, such contract. Therefore, where one was sued alone on a joint obligation, and the Jury found upon the plea of the defendant that he was' only a surety, this was an immaterial plea, and of course an immaterial finding, and the defendant could not avail himself of the provisions of the act of Assembly, Rev. Stat. c. 31, s. 131,*132, relating to judgments against a principal and surety.

In such a case, an indorsement on the execution, according to the provisions of that act, is jabsurd and unmeaning.

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. Judgment was rendered upon the note against Davis, and the present defendants caused a ca. sa. to be issued thereon, with the following indorsement made by order of the Court on the back of the writ, to-wit, “ It appears to the Court, that William H. Davis, the defendant, is the surety of Ambrose Knox, and the Sheriff will levy this execution upon the goods and chattels, lands and tenements of the principal, or so much thereof as shall be necessary to satisfy this execution ; and for want of such property of the principal, or so much thereof as shall be necessary to satisfy said execution, also on the goods and chattels, lands and tenements of the defendant, and first sell the property of the principal.” The present defendants gave the Sheriff a bond to indemnify him for disobeying the endorsement on the execution of capias ad satisfaciendum, and he collected the whole amount out of the surety, William H. Davis, by arrest of his person. It also appeared, that *390Knox, the principal, had removed from this State, but that he returned to the County of Pasquotank every year; and that he'was not in the County at the time the writ was isjie j,a(j qeft the County a fetv days before, and might have been sued at the same term to which the surety was sued. It further appeared, that Knox had more than sufficient property in the County to satisfy the debt, on which an attachment might have been levied. To this latter evidence, plaintiff objected,.but it was admitted by the Court. On these facts, his Honor was of opinion the plaintiff could not recover, and directed a non suit, from which judgment the plaintiff appealed to the Supreme Court.

Kinney for the plaintiff.

A. Moore for the defendant.

Daniel, J.

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.— *391Knox 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.

The judgment must be affirmed.

Per Curiam, Judgment accordingly.