
    Metcalfe v. Battaile.
    February, 1821.
    Negotiable Note — Endorsement—Note tor Payment ot Money.-- — A negotiable note is not as to the in-dorser. a note J or the payment of money within the meaning- of the act of 1804.
    Same- -Judgment — Jury Necessary. — Judgment cannot consequently lie rendered in such case, without the intervention of a jury.
    
    Same — Same—lights of Defendant on Reversal. — On reversing such judgment, where there has not been a jury, the defendant will be allowed to object on the merits, in the court below.
    The writ issued from the county court office of Caroline, in the name of Metcalfe against Lawrence Battaile, in debt, for $1500, due on a negotiable note, indorsed by the defendant; damage S200.
    The declaration was in debt, against Thomas R. Rootes jr. maker; and Thomas Rootes, and Lawrence Battaile, successive indorsers of a negotiable note, for $1500, and $3 70, notarial charge of protest.
    The defendant not appearing to defend the suit, the court gave judgment for $1500 and $3 70, with interest from the time the money was due on the face of the note.
    *On appeal to the Superior court of the county, the judgment was reversed, and the cause remanded for farther proceedings. The plaintiff’s counsel objected, that the judgment should be entered for the principal due; the defendant’s counsel, insisted on the liberty of pleading to the action.
    Stanard for the appellant.
    The objection that the declaration contains parties not found in the writ cannot be sustained, () And in this case justice having been done by the judgment of the county court, it should not be disturbed, ()
    It was proper to give judgment for interest as well as principal; for the statute directs execution in such cases, to be issued, for interest, and principal, () Indorsers of negotiable notes, are to every intent, principal debtors; and judgment should be for interest, as well against the indorser as the maker.
    As to the notice of non-payment, or protest ; there is no law requiring it. The in-dorser is bound for the debt, with or without notice.
    Wickham and Robinson, contra.
    The variance between the writ and declaration, in joining persons in the latter, not parties to the former, is error. The cases cited to shew the contrary, are where there is an appearance, which waives the objection. There can be no office judgment without a declaration, which is founded on the writ, and they must agree.
    The variance in giving judgment for a larger sum than is claimed in the writ, is equally fatal. The writ demands but $1500; the judgment is for $1503 70.
    *The Superior court could not correct the error, for the clerk of the county court, did wrong to enter an office judgment; the variance precluded it; every thing done after the declaration was filed is erroneous; and the cause must be sent back to the rules.
    It must appear from the declaration, that the plaintiff has used due diligence, before he can charge the indorser, () This necessarily results, from the statute placing negotiable notes on the same footing with bills of exchange ;() for that is undoubtedly the law as to bills. There must be the most speedy notice of the protest, ()
    Stanard, said the protest was but one of the remedies of the holder; it was not a duty but a right; and no law required it to be done, to entitle him to recover of the in-dorser.
    
      
      Negotiable Note —Indorsement—Note for Payment of. Money .--The proposition of the principal case, that an indorsement of a note is not a note in writing for the payment of money within the meaning of the act of 1804. was approved in Hatcher v. .Lewis, 4 Rand. 156.
      And in Commercial union Assurance Co. v. Ever-hart. 88 fa. 956, H S. E. Rep. 836, it was said: "It was held before the statute was changed to its present form, that a negotiable note was not, as to the indorser, a writing for the payment of money, although so as to the drawer, because the undertaking of the indorser is not for the payment of money absolutely, but is a collateral contract to pay it under certain circumstances. Hatcher v. Lewis, 4 Rand. 152, Metcalfe n. Battaile, (Him. 181 See also, Rees y. ConococheagueBank, 5 Hand. 836; Shelton v. welsh, 7 Leigh 175.”
    
    
      
      fjame — Action- against Indorser — Office Judgment-Writ of Inquiry Necessary. — where a joint action is brought against the drawer and indorsers of a negotiable note, an oiiice judgment cannot be continued against all or either of the defendants without a writ of inquiry. Hatcher v. Lewis, 4 Rand. 152,151, citing the principal case as decisive of the point. See, to this same effect, the principal case cited in Hickman v. B. & O. R. Co.. 30 W. Va. 301, 4 S. B. Rep. 657.
      In James River, etc., Co. v. Lee. 16 Gratt. 427, 439. after setting forth th’e facts and decisions in the principal case. Hunt v. McRea, 6 Munf. 454, Hatcher v. Lewis, 4 Rand. 15.3, Rees v. Conoco-cheague Rank, 5 Rand. 326, and Shelton v. Welsh, 7 Leigh 175, Judge Mojtcubu, delivering the opinion of the court, said: "These cases clearly show that under the Code of 1819. the award of a writ of en-quiry was necessary in every case of an oiiice judgment against a defendant, except the case of an action of debt upon an instrument of writing for the payment of an ascertained sum of money, absolutely and unconditionally. The present Code. ch. 171, sec. 43. seems to have made no other change in this respect than to extend the exception to an action of debt against endorsers, as well as the drawer, of a bill of exchange or negotiable note; ami to an action of debt or scire facias upon a judgment or recognizance; in which cases it had been held, as we have seen, that a writ of enquiry was necessary, under the Code of 1819.” See Va. Code 1887, § 3285.
      See further, monographic note on “Judgments” appended to Smith v. Charlton. 7 Gratt. 425, and monographic note on "Bills, Notes and Checks” appended to Archer v. Ward, 9 Gratt. 6‘22.
    
    
      
      (a) Spencer y. Scott, 1 Bos. and Pul. 19; Stables y. Ashley, i Bos. and Pul. 49.
    
    
      
      (b) Cox v. Kitchen, 1 Bos. and Pul. 838.
    
    
      
      (c) 1 Rev. 508.
    
    
      
      (d) Rushton v. Aspinall, Doug-1. 679.
    
    
      
      (e) 3 Rev. 78.
    
    
      
      (f) Tindall v. Brown. 1 T. Rep. 167; (loodall v. Dolley, 1 T. Rep. 712.
    
   ROANE, Judge.

The court is of opinion, that if the writing on which the action in this case was founded, could be considered as a note or writing for the payment of money within the meaning of the Act of 1804, c. 8, () no objection would lie to the judgment before us, on the ground that it included interest when none is demanded in the declaration, (as was decided by this court in the cases of Wallace v. Baker, () and Baird v. Peter, () since if the judgment were rightly entered, the clerk, under the act, would have included interest also in the execution, which therefore would produce the same result.

But the court is, at the same time, of opinion, that this writing is not of that character, and that, therefore, ^neither the interest, nor a final judgment for the principal sum could be given upon it, without the intervention of a jury. It is not a writing for the payment of money absolutely, but a collateral contract to pay it under certain circumstances. The opinion of this court discriminating between these two classes of contracts has been heretofore given, and particularly in the cases of Ruffin v. Call, () and Henderson v. Hebburn, () and by that opinion, this writing falls within the latter class of contracts.

The court is therefore of opinion, that the judgment of the Superior court be affirmed, by which the interest and damages will be hereafter assessed under a writ of enquiry. It is the right of the appellee to reverse this erroneous proceeding altogether, and thus be let into his objections on the merits, instead of being subjected to pay the principal sum, under the consent of the appellant. 
      
      Brooke absent.
     
      
      (g) See 1 New Code, 508, § 79.
     
      
      (h) 2 Munf. 834.
     
      
      (i) 4 Munf. 76.
     
      
      (k) 2 Wash. 181.
     
      
      (l) 2 Call 232.
     