
    *Holman and Wilson v. Gilliam.
    October, 1827.
    Demurrer to Evidence — Judgment on — What Considered. — A demurrer to the Declaration is filed, and also a demurrer to the evidence and the Court decide against the demurrer to the Declaration: whereupon the Jury find a verdict for the Plaintiff, subject to the opinion of the Court on the demurrer to evidence. The Court render final Judgment for the Plaintiff. This shall be considered as a Judgment on the demurrer to evidence, in favor ot the Plaintiff.
    Sealed instrument — When Joint and Several. — A sealed instrument in the singular number, but signed and sealed b; two persons, is joint and several.
    Gilliam, assignee, &c. brought an action of debt in the County Court of Cumberland, against Holman and Wilson, on a bill penal. The bill begins, “I promise to pay,’' &c. and concludes, “I bind myself, my heirs,” &c. ; without mentioning any name in the body of it. It is signed and sealed by both the Defendants.
    The Defendants demurred to the Declaration, anil filed a plea, on which issue was joined. At the trial, the Defendants filed a demurrer to the. evidence; and the Jury found a verdict for the Plaintiff, subject to the opinion of the Court on the demurrer to evidence. The Court gave Judgment that the demurrer to the Declaration was insufficient, &c. and “therefore it is considered by the Court, that the Plaintiff recover against the said Defendants,” &c.
    From this Judgment, the Defendants appealed to the Superior Court of Cumberland, where the Judgment of the County Court was affirmed ; and the Defendants appealed to this Court.
    Leigh, for the Appellants,
    contended, 1. That the County Court have never disposed of the demurrer to evidence. They simply decide against the demurrer to the Declaration, and conclude, “and therefore,” &c. 2. The bond purports to be given by one person only, and is signed by two.
    S. Taylor, for the Appellee,
    said that the bond was, in effect, joint and several. As to its being in the singular *number, the cases of Marsh v. Ward, Peake’s N. P. Rep. 130; Clarke v. Blackstock, Bayley on Bills, 37, are conclusive authorities. But, ii it be a joint and not a joint and several obligation, it is not bad on a general demurrer. As to the other objection, the Court will intend that both demurrers were overruled.
    
      
      Demurrer to Evidence. — See monographic note on "Demurrer to the Evidence” appended to Tutt v. Slaughter, 5 Gratt. 364.
    
    
      
      Sealéd Instrument — When Joint and Several, — A sealed instrument in the singular number, but signed and sealed by two persons, is joint and several. As for instance the writing begins, "I promise to pay,” etc., and concludes. "I bind myself, my liens,” etc , without mentioning any name in it, and is signed and sealed by both defendants. Keller v. McHuffman, 15 W. Va. 67, citing the principal case as its authority. A promissory note commencing “I promise to pay” and signed by two persons is several and joint. Keller v. McHuffman, 15 W. Va. 80. citing the principal case as authority.
      when one signs a note or bond saying, "I promise to pay,” it binds any member who signs. Morgan v. Snodgrass, 49 W. Va., 887, 38 S. E. Rep. 697. citing the principal case as its authority.
      See further, monographic note on "Bonds” appended to Ward v. Churn, 18 Gratt. 801; monographic note on "Bills. Notes and Checks" appended to Archer v. Ward, 9 Gratt. 622.
    
   October 26.

JUDGE CABBED

delivered the opinion of the Court.

Both the demurrers were argued before the County Court. That Court expressly pronounced Judgment on the demurrer to the Declaration ; and the rendition of final Judgment in favor of the Plaintiff in the action, upon the verdict of the Jury, necessarily involved a 'Judgment upon the demurrer to the evidence, to which the verdict had been made subject.

The only question in the cause, is, as to. the character of the bill penal, on which the suit was brought. No person is bound in it by name. The bill, in its terms, is in the singular number throughout; “I bind myself, &c.;” as if executed by one person only. But, it is signed and sealed by both of the Defendants. The question is, whether it be joint and several.

A promissory note, executed in the self same terms, and signed by two persons, would unquestionably be considered the joint and several note of both and of each of them. Bayley on Bills, 37. New edition. The case of Marsh v. Ward, Peake’s Rep. 130; Clarke v. Blackstock, Holt’s Rep. 474, and 3 Common Law Rep. 159.

A particular form of expression which will make an unsealed contract joint and several, will not cease to make it so, merely because seals are added to it. The effect of the seals is not to change the meaning of the parties, but merely to add to the solemnity and dignity of the Instrument. The Judgment is affirmed. 
      
       Absent, Judges Green, and Coalter.
     