#### CRANDALL *v.*CUYLER.

Negotiable note — guaranty—party filling up a blank endorsement must abide the contract he makes.

A promissory note not negotiable is within the law merchant.

If there is an endorsement in blank on a note, and the holder write over the signature a special guarantee, he will not be permitted to abandon that while it is subsisting and recover on the common counts — he must abide by the contract he has chosen to make.

Where evidence goes to the jury which is competent at the time, it is not error, if in a subsequent change of case the Court instruct the jury to disregard it instead of withdrawing it from them.

A court of error will only look at the errors appearing, and *not*notice those merely *probable.*

Error to the Court of Common Pleas. Cuyler declared below in assumpsit, in four counts — the three first, special, on a note drawn by one Sheldon, payable to Crandall or *bearer,*and endorsed by Crandall to the plaintiff; and the fourth the common money counts. Plea non assumpsit.

At the trial the note was offered *endorsed*in blank, and the attorney for the plaintiff at the bar, without the knowledge or consent of Crandall, wrote over his name these words: *41guaranty the payment of the within noted*The note and endorsement, though objected to, was admitted by the court. The plaintiff then offered to prove that in 1827, the note was given to him in payment of a pair of horses, and when it fell due the maker was notoriously insolvent, but he offered no evidence of a demand of the maker, or excuse for the omission, or that he had tried to collect the money of him. Pie then proved that Sheldon died insolvent after the note fell due, and that after his death the defendant promised to pay it, and in 1830 offered *379to work for the horses — but he offered no evidence that at these times the defendant knew of the neglect to demand payment of the maker, or of any other guarantee on the note, than that of a common endorser. At this stage of the trial the plaintiff abandoned his special counts, and rested. The defendant then prayed the court to withdraw the note from the jury, but the court *ref used,*and insti’ucted the jury to disregard it, to lay it out of view as the basis of the plaintiff’s recovery, but if the note was delivered to the plaintiff for horses, they ought to find for the defendant. There was a verdict and judgment for the plaintiff, and a motion for a new trial which was overruled.

*Wilder,*for the plaintiff in error,

claims to reverse this judgment, because the court erred in permitting the note to go to the jury, and instructing them as it did. He cited 10 *John. R.*418.

Wright, J.

The case cited from the 10th *John. R.*418, decided merely a question of variance, the declaration in that case described the note as containing thé words for value received while the note offered did not contain the words. We do not see its application to the case before us. If the note was not negotiable, it is not within the law merchant, and if there be a special endorsement of a guarantee upon it, the party having so elected to make it, must abide by the contract, as he-has made it. He cannot abandon a *subsisting*contract, and resort to the common counts. When the note was-admitted to thé jury,-it was competent evidence, applicable to some of the counts. That it was not afterwards withdrawn, is not as we perceive, injurious to the defendant, as the jury were instructed not to regard it as a ground of the plaintiff’s recovery. What other evidence was given to warrant the jury in finding on the money counts,'for the plaintiff, is not shown by the record, nor is it complained of that the court refused a new trial. It is not our province now to inquire whether the jury found right. If there was error, as *there. probably*was, yet on the case disclosed in this record the error is not before us.

The judgment is affirmed with costs.