
    Watson and Gibson vs. Hoge, Kelly and Rawlings.
    A joint action against the maker and endorser of a promisory note, cannot be maintained either* at common law or by Virtue of the act of 1820, ch. 25, sec. 1.
    This is an action of debt brought in the Davidson county court by the plaintiffs against Hoge and Kelly as drawers, and Rawlings as endorser of a promisory note not under seal. Neither of the defendants was a resident of this county at the commencement of this suit, and neither of them has been a resident at any time since;! but the original writ was personally served on one of the' defendants, (Kelly,) and counterparts were sent out and’ served upon the other defendants, in the' counties where’ they respectively reside.
    
      S. Watson, for plaintiffs in error.
    1st. Can an action of debt be brought jointly against the drawers and endorsers of a promisory note not under seal?
    2d. Where all the defendants are non residents of the' county in which the suit is brought, but one of them has been personally served with process in said county, can counterparts be sent out and served upon the other defendants in the counties where they respectively reside?
    The first question depends entirely upon the construction to be given to the words “writing obligatory,” in the act of 1820, ch. 25, sec.' 1, which provides, that endorsers of bills of exchange, promisory notes and writings obligatory may be jointly sued, and that an action of debt may be prosecuted jointly, against the maker and endorsers of any such writing obligatory.
    Although the words “writing obligatory” are technical words, embracing in their technical sense only written contracts under seal, they have also a popular signification, embracing all written contracts, as well those not under seal as those under seal. This popular signification must prevail in the construction, if such be the in-1 tention of the legislature. Packard vs. Richardson, 17 Mass. Rep. 122. And that such was the intention of the legislature, is inferrible from the words of the act itsell, from its reason and spirit, and from the provisions of another statute of 1820, ch. 151, sec. 6, passed two days subsequent to the one under consideration, which enacts, that where a judgment has been obtained against the maker and endorsers of a promissory note, as well as a bond, the sheriff shall first satisfy the execution out of the property of the maker. Vid. Stat.4of 1820, ch. 25, sec.l, and ch. 151, sec. 6; Crockett vs. Anderson, 6 Yerg. 330.
    The second question is one depending entirely upon the construction to be given to the various acts passed upon the subject of counterpart writs. The act of 1789, ch. 57, sec. 2, gives the right to issue process into different counties, in all cases where the original writ was personally served on one of the defendants in the county where the suit was brought. The subsequent acts of 1813, 1820 and 1827, are less limited in their extent. They provide for a special class of cases, and are not inconsistent with the act of 1789, and as they use no express words of repeal, the act of 1789 must still exist in full force. 1 Black. 89 a: acts 1813, ch. 67, sec. 2: 1820, ch. 25, sec. 3: 1827, ch. 74, sec. 2:1 Play, and Cobbs, 274.
    
      Edwin II- Ewing, for defendant in error.
    The first and main point in this case is, can an action of debt be maintained jointly against the drawer and endorser of a promissory note? The stat. 1820, ch. 5, speaks only of joint actions against endorsers, and joint actions of debt against the maker and endorser of writings obligatory. Now if the words “writings obligatory,” in their connection in said statute, mean promisory notes, i. e. are nomen generalissum for bills of exchange, &c., then the action can be maintaine'd, otherwise not. At the common law there were, in reference to their dignity, but two ^'nc^s contracts, parol contracts and specialties; all writings not under seal were parol, those under seal were writings ' obligatory, bonds or specialties. The words “writing obligatory” were nomen generalissum for all contracts of the latter class. “Writing obligatory” included an award, which “specialty” and “bond” did not, and was themost rightful name of this class of contracts. These were technical words, or words of art, and such exclusively; they never had any other acceptation than the one above mentioned; they have never gone into vulgar use, and changed their meaning. They are then to be construed as words of art. See the rule of construction as to such words, 6 Bacon’s Abr. Statute. It is contended, that though these are technical words, yet, that in the present instance, they mean more than they did at the common law; that the expression, “any such,” &c., makes them refer to all the instruments previously spoken of. This might be true had the law-givers used the word bond or speciality above, or in any other way, left us a possibility of supposing that they did not understand the technical meaning of these words; but see how clearly they distinguish, &c. See statute all through: Scott, 687. But again, another rule of construction compels us to look at the mischief to be remedied, and to see if promissory notes are not as completely included within that as the others. As to that see 6 Bacon. What then is the true rule about the construction of statutes with a view to the correction of the mischief at which the legislature is aiming? (I mean where words are ambiguous, otherwise there is no room for construction, as is in fact the present case.) It is, I conceive, to give the words such a construction as will effect the object intended, if not inconsistent with their common acceptation; or should they be technical words, their legal meaning. Now disregard this rule here, and we draw in bills of exchange,, and also, a new set of persons, the acceptors, for they too are within the mischief. Another rule of construetion is, that all statutes in pari materia, and especially those passed at the same session, are to be construed together. The statute of 1820, ch. 151, is in pari materia, and recognizes the power of bringing joint actions against the drawers and endorsers of promissory notes. This may be. true, yet the supposition, even, by a legislature in a subsequent statute, that certain provisions had been made in a previous one, will not have the effect to place them there; nor will not supply a casus omissus, even supposing them to have been drawn by the same hand, a thing by no means probable in the present instance. Such a supposition, where the words are ambiguous, would, howeyer, have a strong tendency to explain the intention. This second statute, however, is not a necessary consequent upon the first; it only provides against an evil which existed as much before as after the passage of the first statute; and the general words used in it are only to provide against every possible case. It is certain, however, if promisory notes were not mentioned in the first statute, that this second one would not introduce them. The court may, however, upon looking into some of the older English-books, find as great latitude of construction upon statutes, as it would be in the present case to include promissory notes. This latitude was, I think, how-evér, entirely owing to the small number of laws, compared with the multitude of relations, offences, &c. to be provided against and about. The judges had in some measure to exercise legislative as well as judicial functions: no such instances can be found in the late books, nor will be followed by this court. The art of printing, increase of civilization, superior accuracy in speaking and writing, &c.j have taken away that necessity. Indeed, in regard to many of these older instances of construction, there is not the shadow of a reason to suppose that the legislature meant any such thing as their law was applied to; but the times excused and justified the judges. But the intention, what is it? Why I suppose, at least,7 it is neither more nor less than the meaning of the legislature, And how is this to be got at? By the words used in reference to their connection, together with attendant circumstances. Suppose we do not know the attendant circumstances, then the words in their connection are our only sources of information; well, the meaning or intention is then the meaning of the words written. How much do we know of the circumstances under which this statute was passed? O! a great deal; it is only fifteen years old. In 1819 the country was oppressed by a multitude of suits on a single instrument; this evil was to be remedied, &c. Well, but do we know what sort of men composed this legislature? Do we know whether they were pressed with business, or had time to do every thing well? Do we know whether the author of this statute intended to cut off litigation or increase it! Finally, have we such a view of the whole matter as to say, no matter what this legislature has said, we know what they meant, and this too in the entire absence of extemporaneous exposition. But my Lord Coke says quí hceret in litera hceret in cortice, and he is high authority. This short expression has been made the occasion of much nonsensical jargon, and has been frequently quoted as one of the most sage remarks of that great man. But if my Lord Coke meant by this to put the words of a man and his meaning at variance, I conceive that he has given place to a most pernicious dogma, and that the distinction hinted at is altogether unphilosophical.
    I think that the letter of a law and the spirit of a law are always the same, if the law-giver understands his own meaning and object. I agrée though, that a law-giver may omit something that he intended to insert, that he had previously thought of, that may have passed through his head but a moment before he sat down to write out his conceptions, and that after the power has passed out of his hands, he would be very glad had been inserted; but this will, however, be a casus omissus, and cannot come in as pan of the meaning of that which is inserted; and n 1 were bound to account ior the .omission ot promissory notes in thepresent case, I should say it was- inadvertently done; however this may be, in constructing book® both of law and miscellany, unless the writer intended a pun or double entendre, I have always proceeded upon the idea that there was but one meaning, and that the words expressed that. Words, it is true, independent of the convention of society, are nothing; by this convention they become signs of ideas, which themselves could not exist without archetypes. The meaning of words is assuredly to be reached by means of their context, through the object of the speaker; their sense in other places, &c. But at last they would be no better than inarticulate sounds, without their meaning, of which they are only the dress, and from which they are insep-erable; as inseperable as the form of a hat, is from a hat itself, or the length of an article from the article itself. If Coke had said he who takes a word or sentence to mean always the same thing independent of its connection and circumstances, is ignorant of the conventions of language, he would have been nearer the truth. The letter of the Bologna law, about drawing blood in the street, is explained by the context', the drawing of blood spoken of is something criminal. But after all, what is the meaning of these words, technical words, and how is it .possible to suppose the. legislature did not include promissory notes. Let us see the statute. The action of debt is given in the second clause because it is a peculiar remedy on bonds &c. Hay. and Cobbs 231, sec. 1, and 232, sec. 3.
    If the act of 1741 is relied on, that is repealed. See Hay. and Cobbs 231. The act of 1741 plainly refers only to foreign bills any how, so that the action there given jointly, does not extend to promissory notes, which are to be sued on as inland bills of exchange in -England. The action given too, is on the case as aPProP^ate only to bills of exchange. The liberty of suing jointly on notes does not give the liberty of change jng the nature of the action. Wain vs, Walters, 5 East 1,
   GREEN, J.

delivered the opinion of the court.

It is admitted by the counsel for the plaintiffs, that at the common law this action could riot be sustained; but it is insisted, that by the act of 1820, ch. 25, sec. 1, this remedy is given.

This brings us to consider of the construction which should be placed upon that act. It pro-vides, that “It shall be lawful for any person or persons who are the endorsee or endorsees of any foreign or inland bill of exchange, promissory note, or writing obligatory, to commence and prosecute an action, for principal, interest and charges of protest, if any there be, against all, or any two or more of the endorsors jointly; or at his election, prosecute an action of debt, jointly, against the maker or makers of any such writing obligatory; and any one or more of the endorsers thereof, and judgment shall and may be given accordingly, and whenever a suit may or shall be brought jointly against all, or any two or more of the endorsers of a bill of exchange, promissory note, or writing obligatory, and the plaintiff shall be entitled to recover against one or more, but not against all who are thus jointly sued, the discharge of one or more, shall not prevent a verdict and judgment from being rendered against him, her or them, who may be liable.’'’

In the section above quoted, the joint action of debt is expressly given against the makers and endorsers of a “writing obligatory;” and the plaintiffs insist that this provision was intended to extend also to the drawer and endorsers of a bill of exchange, and to the maker and endorsers of a promissory note. This will depend upon the sense in which the words “writing obligatory” are 'here used. The words “writing obligatory,” techni«ally, mean a written contract, under seal. But it is in- . i , , , , , .... sisted, that these words have a popular sense, m which they moan any contract in writing by which a party is bound to pay money; that in this sense are included bills of exchange and promissory notes, as well as sealed instruments; and that in this sense the legislature used them in the act under consideration.

It is true, that a technical expression does sometimes come into common use, in a different sense from its technical meaning; and if such expression be used by a legislature, and it is apparent that it was used in the popular sense, the courts, in construing the act, must give it that sense. 17 Mass. Rep. 122.

But the first question is, has the phrase “writing obligatory,” come into common use, in a sense different from its technical one? The truth is, the expression is rarely used, even by the profession, except in pleading, and then always as signifying a writing under seal. Lawyers themselves, in their common conversation, and in their speeches at the bar, are much more frequently heard, in reference to a writing under seal for the payment of money, to call it a “note,” than to say “writing obligatory.” So far, therefore, from the phrase “writing obligatory” having acquired a popular sense, as contended for, it is scarcely ever us,ed, except in pleading and in legislation, when the writers intend the utmost precision of language. As, therefore, the phrase “writing obligatory” must be understood, as here used, to mean a written contract, under seal, the next inquiry is, whether, as bills of exchange and promissory notes are not included within the letter, are they within the spirit of the enactment? It is the business of the court to ascertain the intention of the legislature, and to carry that intention into effect. But we are to derive our knowledge of that intention from the words they have used to express it. It is true, if the language is ambiguous, and capable of different meanings, then we must resort to extraneous considerations. In such case, a knowledge of the old saw, “the mischief, and the remedy proposed,” will be a pretty sure guide. But when the legislature use plain and precise expressions, capable of only one sensible meaning, their language must be understood in its obvious sense. To supply a provision which we may suppose, from other considerations, the legislature had in view, and which would have been inserted, if the mind of the draftsman had been directed to it when penning the statute, but which he has not used words in the statute to express, would be to make, and not to expound, the law.

In this statute, the legislature has used precise and well-defined expressions to convey its ideas. Technical words are used manifestly in a technical sense, and in a manner which evinces they were well understood. The words “writing obligatory” cannot, therefore, be understood as including bills of exchange and promissory notes; and consequently, a joint action cannot be prosecuted against and endorsers of such a note or bill of exchange.

It may be questioned too, whether this provision was not omitted in relation to bills of exchange and promissory notes, by design. The latter clause of this section again enumerates all these description of instruments which had been mentioned in the first part, and against the endorsers of which, a joint action had been given, and provides, that the discharge of one shall not be a discharge of the others. It is hereby evinced, that there is no careless use of one general expression to include all these instruments, but that each is designated by its appropriate technical word.

The counsel for the plaintiif in error attempts to support his 'construction by a reference to chapter 151, section 6, of the same session, where it is provided, that where judgment shall be obtained on any bill, bond or promissory note, by an endorsee against the maker and endorsers lointly, the sheriff in whose hands the execu-J , ,, , , , ,. tion may come shall make the money out 01 the property of the maker. It is true this provision seems to CON template that a joint action could be prosecuted against the maker and endorsers of a promissory note, but the opinion of the Legislature, that they had made a law, which in fact had not been enacted, would not have the effect of making it law; nor is a legislative construction of a former act of much weight. It is the business of the legislature to declare what shall be law; it is the province of the court, and not the legislature, to say what is the law. Let the judgment be affirmed.

Judgment affirmed.  