1. In all cases of joint obligations, etc., suit may be brought against the whole, or one or more of the persons making 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., ch. 31, secs. 131, 132, relating to judgments against a principal and surety.
2. In such case an indorsement on the execution, according to the provisions of the act, is absurd and unmeaning.
DANIEL, J.
In all cases of joint obligations, assumpsits, or agreements, suits may be brought and presented on the same against the whole, or one or more of the persons making such contracts. Rev. St., ch. 31, sec. 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 indorsed 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., ch. 31, secs. 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 ca. sa. issued on his judgment against Davis; and the county court had no authority, under that (391) act, to indorse on the ca. sa. the direction to the sheriff which they did. Knox had not been a party defendant; there was no judgment 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 indorsed 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.
PER CURIAM. Affirmed.
Cited: Stewart v. Ray, 26 N.C. 271; Gatewood v. Burns, 99 N.C. 360.