#### Mann v. Sutton.

May, 1826.

Specialty — What Constitutes — Joint Suit against Drawer and Endorsers.† — A single bill. Tinder seal, is not a note, but a specialty; and therefore, the drawer and endorsers of such a note, made negotiable and payable at the Farmers’ Bank, cannot be sued jointly.

William Mann brought an action of debt In the Superior Court of Uaw for Caroline county, against Francis V. Sutton, maker, and William Sutton, John Sutton, jun. James T. Sutton, and Anderson Barrett, endorsers, of a negotiable note under seal, for $3000, drawn and endorsed by the defendants, as aforesaid.

The defendants pleaded payment, and also demurred generally. The Court gave judgment for the defendants, and the plaintiff obtained a supersedeas.

Wickham, for the appellant,

said that by our law, negotiable notes at the Virginia and Farmers’ Banks are put upon the footing of foreign bills of exchange; and that a bill of exchange would not lose its character, by being under seal. If so, a joint action is given in both cases, by force of our Acts of Assembly.

*Stanard, for the appellees,

denied that any case could be found, which supported Mr. Wickham’s assertion, that a bill of exchange can be made under seal. By the fixed principles of law, the contracts of the maker and endorsers of an instrument under seal, are of different natures and dignity. The first is a specialty; the ■others are simple contracts. The form of action, the pleadings, and the verdicts are different in the two cases. But the law only places notes negotiable and payable, &c. on the footing of bills of exchange. Can a specialty be called a note, without confounding the legal definitions of the tvto things? The law, in giving a joint action against the drawer and endorsers of a promissory note, committed some violence on the principles of the common law. Shall we extend this violence still further, by giving a joint action on a specialty?

†

See generally, monographic *note,*on "Bonds” appended to Ward v. Churn, 18 Gratt. 801.

The principal case is cited in Laidley v. Bright, 17 W. Va. 795, 797.

May 25.

JUDGE CARR

delivered his opinion.

The instrument, which is the foundation of this action, is a single bill under seal, by which F. V. Sutton promises to pay to W. Sutton, or order, six months after date, negotiable and payable at the Farmers’ Bank of Virginia, the sum of $3000. There are several endorsers, and a joint action of debt is brought against the obligor and endorsers. A demurrer to the declaration was put in, and sustained by the Court below. The simple question presented is, can this action be sustained?

Upon general principles, there could not be the doubt of a moment. The contracts of the obligor, and the different endorsers, are several, distinct, and of different grades. The obligor has bound himself by a sealed instrument; the endorsers, by their hands merely. The defence cannot be the same.

But, we have an Act of Assembly, which authorises the holder of a foreign bill of exchange protested, to commence and prosecute an action of debt, for principal, damages, interest, *and charges of protest, against the drawers and endorsers, jointly, or against either of them separately; and we have another Act, saying that notes made negotiable and payable at the Virginia and Farmers’ Banks, shall be placed on the footing of foreign bills of exchange; and as this obligation is made negotiable and payable at the Farmers’ Bank, it has been supposed, I presume, that this authorised the joint action. The conclusion to which I have come in this matter, differs toto coelo from this. The Act says, that notes made negotiable, &c. shall be on the footing of bills of exchange. This is not a note, but a specialty; differing in dignity,- in the mode of defence, indeed, in all the legal consequences, flowing from it. It is a general rule, that these new remedies, innovating upon the settled doctrines of the common law, shall be taken strictly. But, the most liberal and latitudinous construction, it seems to me, could not extend the Act of Assembly to the case before us. I am clear that the judgment be affirmed.

JUDGES GREEN and COAUTER concurred, and judgment was affirmed.*