
    Peasley v. Boatwright.
    June, 1830.
    Promissory Note — Scroll—Effect.—Debt on an instrument, which is in its form a promissory note for money, concluding “witness the hands” of the parties; but scrolls by way of seals are set to their signatures: this instrument is rightly described in the declaration as a promissory note.
    Same — Action of Debt — Declaration—Averment of Consideration. — In debt on promissory note; Hedd, plaintiff need not aver in declaration, or prove, consideration; though defendant may go into evidence touching consideration.
    Joint Action — Judgment.—rn joint action of debt, against two, there is judgment by default against one; the other pleads to the action, and there is trial, and verdict against him: Held, there should be one and the same joint judgment against both.
    Debt by Boatwright against Montague and Peasley, in the county court of Cumberland, on a written instrument, which the declaration described as a promissory note, for x'188 dollars 93 cents. Montague made default, and judgment by default was entered and confirmed against him. Peasley appeared, and pleaded nil debet.
    At the trial, three bills of exceptions were filed to opinions of the court:
    1. The first stated, that the plaintiff to support the issue on his part, exhibited the paper on which the action was brought, which was of the following tenor: “On or before the 25th day of December 1824, we W. Montague and G. B. Peasley promise to pay D. Boatwright, the sum of 188 dollars 93 cents lawful money of Virginia. Witness our hands this 11th September 1822.
    “Wffl. Boatwright [seal]
    “Gabriel Peasley [seal].”
    Upon which the defendant, by his counsel, moved the court to exclude the paper from going in evidence to the jury, which motion the court overruled. The plaintiff then proceeded to prove by two witnesses, who had seen Peasley write, that they believed the signature of his name to the paper, was in his handwriting. And this being all the evidence, the defendant’s counsel moved the court to instruct the jury, that the law was for the defendant, and to instruct the jury, whether the law was for the plaintiff or defendant. The court refused to give the instruction that • the law was for the defendant, and instructed the jury that the law was for the plaintiff. The defendant excepted.
    2. He then moved the court to exclude the instrument above set forth, from the evidence, on the ground, that it was variant from that described in the declaration as a promissory note. The court overruled the motion : and the defendant excepted.
    3. He moved the court to instruct the jury, that as the note itself did not import a valuable consideration, the production of it did not exempt the plaintiff from the duty of proving a consideration ; and that, unless he proved a consideration *by other proof than the exhibition of the note alone, the law was for the defendant. This motion also the court overruled: and the defendant excepted.
    The jury found a verdict for the plaintiff; upon which the county court entered a separate judgment against Peasley, judgment having been previously entered against Montague. Peasley appealed to the circuit court of Cumberland; which reversed the judgment, only because separate judgments were entered against the two defendants in this joint action, but proceeded itself to enter a joint judgment against them both. And then Peasley applied to this court for a supersedeas; which was allowed.
    S. Taylor for the plaintiff in error; Eorbes for the defendant.
    
      
      ^Sealed Instrument — Scroll—Necessity for Recognition in Body of instrument. — In cases of contracts which may be indifferently simple contracts or sealed instruments, the fact that a scroll is affixed, tbe name of the maker does not make it a sealed instrument unless there be a recognition of the seal in the hody of the instrument. Bradley Salt Co. v. Norfolk, etc., Co., 95 Va. 462, 28 S. E. Rep. 567, citing principal case. To the same effect, see principal case cited In Cromwell v. Tate, 7 Leigh 306; Clegg v. Lemessurier, 15 Gratt. 112; Keller v. McHuffman, 15 W. Va. 78.
      For further Information on this subject, see discussion in foot-note to Parks v. Hewlett, 9 Leigh 511; foot-note to Clegg v. Lemessurier, 15 Gratt. 108; monographic note on “Bonds” appended to Ward v. Churn, 18 Gratt. 801; monographic note on “Deeds” appended to Fiott v. Com.. 12 Gratt. 564.
      As to the admission of proof aliunde of the sealing’ of an instrument, see principal case cited in Parks v. Hewlett, 9 Leigh 516; Clegg v. Lemessurier, 15 Gratt. 114, 115.
    
    
      
      promissory Note — Action of Debt — Declaration— Averment of Consideration. — By statute, 1 Roy. Code, p. 484, § 4 (Code 1849, ch. 144. § 10. p. 582; Code 1887. 12852), an action of debt may be brought on a promissory note; and in such action it need not be averred or proved that there was a consideration for the note, though the defendant may g'o into evidence touching consideration. The principal case was. cited in support of this proposition in Hollingsworth v. Milton, 8 Leigh 52; Jackson v. Jackson, 10 Leigh 452, 453; Snead v. Coleman, 7 Gratt. 302; State v. Harmon, 15 W. Va. 121, 122 (quoting with approval, from Judge Garb’s opinion); Cheuvront v. Bee, 44 W. Va. 104, 28 S. E. Rep. 751.
      The drawing and delivery of a check implies the indebtedness of the drawer to the payee to the amount of the check, and, in an action upon the check, ills unnecessary to aver in the declaration any further consideration. McClain v. Lowther, 35 W. Va. 299, 13 S. E. Rep. 1003, citing principal case, Ford v. McClung, 5 W. Va. 156, and Terry v. Ragsdale, 33 Gratt. 342.
      See further, monographic note on “Consideration” appended to Jones v. Obenchain, 10 Gratt. 259; mono-graphic note on “Bills, Notes and Checks” appended to Archer v. Ward, 9 Gratt. 622.
    
    
      
      Joint Action — Jadgment.—To the point that in a joint action upon a contract, the plaintiff must have a joint judgment against all of the defendants, or he can have judgment against none, the principal case was cited In Early v. Clarkson, 7 Leigh 83, 86, 91, and foot-note: foot-note v. Baber v. Cook, 11 Leigh 606; Snyder v. Snyder, 9 W. Va. 421; Hoffman v. Bircher, 22 W. Va. 542. 547, 648; State v. Hays, 30 W. Va. 111, 3 S. E. Rep. 180. See further, monographic note on “Judgments” appended to Smith v. Charlton, 7 Gratt. 425.
      To the point that the release of one joint promissor ’ is a release of all, the principal case is cited in Maslin v. Hiett, 37 W. Va. 35, 16 S. E. Rep. 440.
    
   CARR, J.

It is not easy to perceive, in the first bill of exceptions, what was the exact point of law, on which the defendant’s counsel wished to obtain the opinion of the court. As the attempt to exclude the note, and the motion for an instruction on the law of the case, are blended together, and form the matter of one exception, with the evidence going to prove the handwriting spread out; I conclude, that the defendant intended to ask the court to instruct the jury, whether (taking the evidence for true) the note ought, according to law, to go to the jury in support of the declaration? And understanding the motion thus, I think the court was right: for if the jury believed the evidence, the handwriting was clearly proved, and the note being properly described in the declaration, ought to have gone to the jury. The motion itself was not only awkwardly put, but improper, because it involved fact with law, and demanded the' opinion of the court on the whole mass. Smith v. Carrington, 4 Cranch 71; Brooke v. Young, 3 Rand. 106. There would have been no error in overruling it for that reason alone. Nor did the court, as I understand it, err in the opinion it gave.

' *Of the other exceptions, the third onlj’ need be noticed. We know that at common law, an action of debt could not be maintained on a promissory note, as of itself importing a debt; but the plaintiff must declare upon the contract, as an as-sumpsit, stating and proving the real consideration at large. The note, though it could not be declared on, might be given in evidence in support of the contract stated, as (for instance) on a count for money lent. As commerce advanced in its progress, it was found convenient to resort to a less complicated instrument than bills of exchange ; and this brought promissory notes very much into use. It was attempted to place them on the footing of bills of exchange, and to bring debt upon them, as of themselves importing a consideration : this was opposed by lord Holt, totis viribus, who (as lord Kenyon observes in Brown v. Harraden, 4 T. R. 151,) most pertinaciously adhered to his opinion, that no action could be maintained on promissory notes as instruments, but that they were only to be considered as evidences of debt. He insisted, that actions upon notes as such, were innovations upon the rules of the common law; and that declarations upon them amounted to setting up a new sort of specialty unknown in Westminster. Clerke v. Martin, 2 Ld. Raym. 757; Story v. Atkins, Id. 1430; Trier v. Bridgman, 2 Bast. 359; Pearson v. Garrett, Comb. 227. To put an end to this controversy, the statute 3 & 4 Anne, ch. 9, § 1, enacted, that all notes signed by a person, promising to pay to another, his order or bearer, any sum of money, should be construed to be, by virtue thereof, due and payable to any person, to whom the same is made payable. One effect of this statute was, that an action of debt might be maintained on a promissory note without alleging a consideration, and of consequence, without proving any. Not very long after this change was effected by the statute of Anne, our assembly passed a law resembling that statute very strongly, as respects promissory notes; 4 Hen. Stat. at large, May 1730, ch. 5, p. 273 — 5. It enacts, that “to the end the recovery of money upon promissory notes, and other writings without seal, may *be rendered more easy &c. if any person shall sign any note, or by any other writing shall promise and oblige himself, to pay any sum of money, or quantity of tobacco, to any other person, such person to whom the money &c. is payable, shall and may commence and maintain an action of debt, and recover judgment for what shall appear to be due thereupon, with costs.” By the same act such notes were made assignable, and the assignee enabled to sue in his own name, allowing all discounts against the assignor. These provisions, from that day to this, have continued to be law. It seems to me, that the object and effect of this legislation was to put promissory notes on the same footing here, which they occupied in England, except giving to them the character of bills of exchange, which was prevented by the clause allowing discounts. There can be no doubt,- that our act meant to enable the holder of such notes to bring debt on the note itself, without laying or proving any consideration ; the defendant having it always in his power, from the nature of the instrument, to go into the consideration. If the act did not mean this, it is impossible to conceive what was its object. It expresses the intention of rendering the recovery on such notes more easy: how? not by giving debt on the contract, for that lay at common law; but by giving debt on the note itself, and thus dispensing with the necessity of laying a consideration. That such is the meaning of the law, is further proved by this, that in suits on such notes, no writ of inquiry is necessary, and unless the office judgment be set aside, the clerk is by law directed to issue execution for the full amount of principal and interest due on the note, just as on an instrument under seal. This, then, being the just interpretation of the law, strengthened by the universal practice of the country, the court was perfectly correct in overruling the motion. The judgment is correct throughout.

The other judges concurred, and the judgment was affirmed.  