#### *George M. Stoney vs. D. R. Beaubien.*

1. Where a party wiites his name on the back of a promissory note, payable to a third person, not yet due, without express words to show the nature of his contract, he will be held as an original promissor.

2. It seems the undertaking will be regarded as original, and not collateral.

*Before*O’Neall, J., *Beaufort District, Spring*Term, 1841, *whose report of the case is as follows:*

“ This was an action of assumpsit, brought on the following note : “ $700 — (seven hundred dollars.) On or before the first of I to to George *314M. Stoney, or order, the sum of seven hundred dollars, for value received. John M. Zealy. Beaufort, December 13th, 1838.” On the hack, the defendant wrote his name, “ D. R. Beaubien.” The plaintiff's declaration counted, 1 st, vs. defendant as maker; 2d, as a guaranty; and 3d, on the money count. It appeared that Zealy was engaged in building a house for the plaintiff. To obtain the sum of seven hundred dollars, to enable him to purchase lumber, he asked, as he said, Beaubien to endorse this note, which he had previously drawn, which he did. The object was, he said, to make it good to Dr. Stoney, the plaintiff. On presenting the note thus secured, he obtained the money from the plaintiff. There seemed to be no doubt, from the proof, that Mr. Zealy was unable to pay his debts; although it was equally clear, that he was an honest, trustworthy, and enterprising mechanic. To secure the defendant, he had confessed a judgment to him for this debt. The following letters of the plaintiff were given in evidence by the defendant ;

“ *Hilton*Head, *14th*December, 1838.

“Dear Sir — By man Prophet, I have, in accordance to your request, enclosed in a separate package, sealed, $700 —(seven hundred dollars,) which I hope will reach you in safety. I have received your obligation, with Mr. Beau-bien’s *endorsement,*for the amount remitted.

“ Yours, <fec. GEORGE M. STONEY.

“ To Capt. John M. Zealy, *BeaufortP*

STATE OF SOUTH CAROLINA, *)*Beaufort District. $

*In the Common Pleas.*

D. R. Beaubien was attached to answer to George M. Stoney, in a plea of *trespass*on the case, and so forth, to his damage, fourteen hundred dollars.

Whereupon the plaintiff complains: For that the defendant did, on thirteenth day of December, Anno Domini, 1838, together with one John M. Zealy, make their certain promissory note, their own proper hands being thereunto written, by which said note, tire defendant did jointly and severally with the said John M. Zealy, promise to pay or cause to be paid unto the plaintiff or his order, the full and just sum of seven hundred dollars, on or before the first day of May, then next ensuing, for value received. By reason whereof, and by force of the statute in such case made and provided, and made of force in this State, the defendant became liable to pay to the plaintiff the said sum of money, in said note contained, according to the tenor and effect of said note. And being so liable, the said defendant afterwards, to wit: on tíre same day and year aforesaid, *315at Beaufort aforesaid, and •within the jurisdiction of this Court,, in consideration thereof, upon him did assume, and to the plaintiff the said sum of money then and there faithfully promised, that he, the said defendant, would well and truly pay, according to the tenor and effect of the said note. And for that the defendant, on the day and year aforesaid, in consideration that the plaintiff would lend and advance to the said John M. Zealy, a certain large sum of money, to wit: seven hundred dollars, which he the plaintiff had occasion for, on a credit from that time to the first day of May, then next ensuing, and take the note of him the said John M. Zealv, payable at that time, he, the defendant, undertook and promised -to guaranty to the plaintiff the payment of the said note ; and that the plaintiff, confiding in the said promise and undertaking of the defendant, did, on the day and year aforesaid, lend and advance to the said John M. Zealy, the sum of seven hundred dollars, on a credit from that time to the first day of May, then next ensuing, and took his note therefor, payable to the plaintiff or his order, on the day last mentioned; to which said note the defendant became a party, his own proper hand being thereunto written as guaranty for tire payment thereof, and then and there faithfully promised and undertook to pay the same, if payment thereof was not made by him the said John M. Zealy, on the day last mentioned as aforesaid; and that the said John M. Zealy did not, on the first day of May last mentioned, pay the said sum of money in said note contained, but the same, and every part thereof, did then, and from thenceforward hath continually refused and neglected to pay, and still doth refuse; whereof he the defendant had notice; — by reason whereof, the defendant hath become liable to pay to the plaintiff the said sum of money in said note contained, according to the tenor and effect of said note.

“ *Beaufort, 3d May,*1839,

“ B. R. Beaubien, Esq.—

“ Dear Sir — In conformity to the usage and custom of business, I merely notify you, that the note given in my favor against Capt. John M. Zealy, foi seven hundred dollars, and for which you'are *endorser,*came due on the 1st inst.

“ Respectfully, your ob’t. serv’t. . '

GEORGE M-. STQNEY.”

On the closing of the plaintiff’s case, the defendant moved for a nonsuit, on two grounds: 1st, that the proof did not sustain' any one of the counts in the declaration: 2d, that the note of Zealy, with Beaubien’s name on the back of it, could not be a promissory note. The motion for a nonsuit was overruled; the. base went to the jury, who were instructed, the plaintiff could not recover, on the counts treating the defendant’s liability as arising as endorser or guarantor; that (if he was liable at all) I thought it was as drawer of the note. This, I told them, was, I thought, the true view of his liability. For looking to the instrument, and reading it- in connexion with the names upon it, it was an unconditional several promise on the part *316of Zealy and Beaubien, to pay according to the tenor of the note. The case of *Nelson vs. Dubois,*13 J. R. 175, seems to me to be this case. The note in that case was made by Brunbridge, payable to the plain tiff; and on the back of it, the defendant wrote his name. The note was made by Brunbridge for the price of a horse, which Nelson would not agree to sell him without security. This note was written by Dubois, who, after Brunbridge signed it, wrote his name on the back of it, and delivered it to the plaintiff, and said he considered himself bound to pay the note, and guaranteed the payment of it. The analogy of that case to this will be perceived, by remembering that the note here was made to procure money, — and that the object of Beaubien.’s signature was to make it good to the plaintiff; and that when the note, thus signed, was delivered to the plaintiff, he sent to Zealy the' money.

In the case of *Nelson vs. Dubois, 13 J.*R. 175, Spencer, J., said, “ I confess I do not perceive that this case is at alí within the statute (of frauds and perjuries; ) the defendant’s promise is not to pay on the default of Brunbridge, but is an original undertaking as surety; and the defendant *317is as much holden, as if he had signed the body of the note.” This view of the case was concurred in by all the Court, (except Van Ness,) and I thought it presented the true rule by which this case was to be decided. It was supported by *Frampton vs.*Dudley, 1st N. *&*M’C. 128; *Eccles vs.*Ballard, 2d M’C. 388.

*316And for the defendant, on the day and year aforesaid, at Beaufort aforesaid, was indebted to the plaintiff in another sum of seven hundred dollars, for money by the plaintiff, before that time, laid out, expended and paid for the said defendant at his special instance and request; and for other money by the plaintiff, before that time, lent and advanced to the use of the defendant, and at his special instance and request; — and for other money by the defendant, before that time, had and received to the use of the plaintiff ; and being so indebted, he the defendant, in consideration thereof, assumed upon him, and the said several sums of money to him the plaintiff, then and there as aforesaid promised and undertook to pay. Yet the defendant, his said several promises and undertakings in manner and form aforesaid made, in no wise regarding, but contriving and fraudulently intending the plaintiff in this behalf to deceive and defraud, the said several sums of money above mentioned, or any part thereof, to the plaintiff hath not paid, although oftentimes required so to do; but the same to the plaintiff to pay, or any part thereof to pay, hath hitherto wholly neglected and refused, to the damage of the plaintiff, fourteen hundred dollars, and therefore he brings his suit, and so forth.

E. *&*A. RHETT, *Plamiiff’s Attorneys.*

[copy of note.]

“ $700 — (Seven Hundred Dollars,)

On or before the first.day of May next, I promise to pay to George M. *Stoney,*or order, the sum of *seven Iwmdred daUars,*for value received.

*Becmcfort, December iWi,*1838. JOHN M. ZEALY.”

*Endorsed*D. R. BEAUBIEN.

*317The jury found for the plaintiff, and the defendant appealed on the subjoined grounds, for a non-suit—

1. Because the proof offered by the plaintiff, did not sustain any one of the counts in the declaration. ,

2. Because a note of hand simply endorsed by one who is not a party to it, does not of itself amount to a note within the stat. 3 and 4 Ann, upon which he can be sued as drawer; and His Honor erred in ruling, that the defendant’s name on the back of the note sued on, was equivalent to his signature at the bottom of the said note.

And failing therein, for a new trial, on the grounds:

1. Because the jury ought to have been charged, that a note like the one sued on, and endorsed by a person not a party, raises the presumption that the endorser intended to bind himself as second endorser only, and not as drawer ; and that that presumption should prevail, until the contrary was shewn.

2d. Because the testimony showed clearly that the defendant, in putting his name on the back of the note, intended merely to bind himself as an endorser; and that the plaintiff understood his obligation or undertaking to be merely as an endorser, according to the custom of merchants.

3. Because His Honor erred in charging, that inasmuch as the said D. R. Beaubien was not chargeable as an endorser or guarantor, he was answerable only as a drawer; whereas, it is respectfully submitted, that the said D. R. Beaubien might be charged as a party to the original contract, (though not as drawer of the note,) if sufficient evidence of his intention, and of a consideration, had been produced.

*3184. Because the construction put *by*His Honor upon the effect of the defendants signature on the back of the said note, is to alter the nature of the obligation which he intended to assume, and believed he had assumed, and which the plaintiff understood he had assumed, and to make him a party to a contract of a character essentially different.

5. Because the verdict of the jury was contrary to the , weight of the evidence.

6. Because the sense in which the said Dr. George M. Stoney understood and used the words “ endorsement” and *“*endorser,” was a question entirely for the jury, and ought 'to have been submitted to them as such.

DeTreville, for the motion,

on the ground for a non-suit, said there was a difference between the *Allegata*and *Pro-bata.*He cited 12 J. R., 159; 17 ib. 326 ; Chitty on Bills, 195.; Bail, on do. 456. Moise’s case is more analagous to this case, 11 Mass. Rep. 436; Chitty on Bills sustains this view. In Mass, the statutes 3 *&*4 of Ann are not of force. Chitty on Bills, 64 ; 3 Rent Com. 90 ; 7 Com. Rep. 48.

On the 6th ground,' he contended there was error in the instructions given to the jury.

E. *&*A. Rhett, contra,

said the word “ endorser,” in common parlance, is a *surety.*What did Beaubien mean by writing his name *‘l*The 2d endorsement imposes no obligation.

1st. He contended that the defendant was hable as guarantor ; cited 2 Selwyn N. P. 63: 2 Bail. 5.

2d. Can the defendant be charged as drawer *7*cited 2 Bail. 611 ; 1 Ld. Ray. 744 ; 5 Byles on Bills, in 14 vol. L. Lib. 16; E. 14; 1 vol. Law Lib. 25. He said 12 <& 17 J. R. contained no count against a drawer. Hunt *&*Adams treat the liability as drawer.

The instrument declared on in the case of *Moise vs. Bird,*was not negotiable. 4 Pick. 311; Bail, on Bills, 44. *Mint vs. Day,*9 Vermont Rep. 345. When the party writes his name on the back of the instrument, without expressing *the*nature of the contract, he is considered as a joint promis-sor.

*319*Hill vs. Lewis,*Skin. 410. A bill payable to J, S. or bearer, is not endorsable; yet if it be endorsed, the endorser shall be charged, for every endorsement is as a new bill. 1 Salk. 125; 1 Ld. Ray. 181, 743.

*Curia, per*

O’Neall, J.

This Court concurs in the instructions given below-. It is, however, *now*necessary to go more at large into the discussion of the point involved, than was done in the report.

The defendant’s liability cannot be considered as arising under an endorsement. For, although he wrote his name on the back of the note, yet he had no right to direct the payment of the money to the plaintiff, to whom the maker had already promised to pay. Neither can it be regarded as a guarantee. For there was nothing in the fact of writing his name on the note, with its attending circumstances, to make it necessary to consider the case in that point of view.

The true view of this contract, is to consider it as the general undertaking of the defendant, until something is shewn by him which will prevent it from being so considered. There is nothing in the words of the contract inconsistent with this view. For the words “ I promise to pay” apply to every name on the paper, and I take it, that it is perfectly immaterial *where*one intending to be bound by a contract, places his name upon the paper on which it is written. His signature is merely the evidence of his assent to be bound by the contract, and when it is found written on the paper containing the terms, it is sufficient.

In *Flint vs. Day,*9 Vermont, 195, the doctrine on this subject was very well declared by the Judges, when they held that he who writes his name on the back of a note payable to a third person, not yet due, without express words to show the nature of his contract, is an original promissor.

In *Moise vs. Bird,*11 Mass. Rep. 436, the note was made by Benjamin Bird to the plaintiff or his order. Before it was due, and before it was handed to the plaintiff, the defendant wrote his name on the back of it. In that case, the Court held that the defend ant could not be made liable, as endorser of the note, as it was. not payable to him. J, *320Parker said, “ what then was the effect of his signature *1*It was to make him absolutely liable to pay the contents of the note.” And it was ruled, by the whole Court, that he was liable as an original promissor.

In vs. , 4 Pick’g., 311, the same point was decided. *Baker vs. Briggs,*8 Pick’g., 122 was on a similar note — on the Circuit and on the appeal to the Supreme Court, it was held, that the defendant was liable as an original promissor, and was rightly declared against as such.

In Massachusetts it is considered now as settled law, that when a defendant writes his name on the back of a note not yét due, payable to a third person, he will be treated as an original promissor, unless he can show that his contract was not intended to have that effect. I think the same rule must be deduced from some of the New York cases, when they come to be fully analyzed and considered.

In *Herrick vs. Carman,*12 J. R. 159, the action was against the defendant as endorser. The circumstances material to be noted were, Ryan applied to L. Carman *&*Co. for credit, which they refused. ' He made his note payable to L. Carman Co,, or order,which the defendant endorsed.— Ryan presented the note to L. Carman <feCo., and obtained the goods he wanted. They sold the note to the plaintiff, at a discount, disclosing all the circumstances, but endorsing the note. The defendant was held not liable. Spencer, J., however, remarked, “had it appeared that the plaintiff endorsed the note for the purpose of giving Ryan credit with L. Carman *&*Co., then I should have considered him liable to them or any subsequent endorsee, and. the defendant’s endorsement might have been converted *into*a guaranty to pay the note if Ryan did not, according to the decision of the Supreme Court in Massachusetts, 3 Mass. Rep. 274. *Joscelyn vs. Adams, is*the case referred to by Mr. J. Spencer. In that case, it was held that an endorsee for valuable consideration of a note not negotiable, may write over the name of the endorser a promise to pay the contents of the note to the endorsee, who may maintain an action on such promise. Taking the two cases together, it may be fairly inferred, that the doctrine intended to be maintained by that able Judge, Mr. J. Spencer, was that when the defen-*321Want’s act, by his knowledge and with his assent, gave credit to the maker, then that he might be treated as originally liable for the payment of the contents of the note.

In *Tilman vs. Wheeler,*17 J. R. 326, the count was on the defendant’s endorsement of a similar note, as a guarantee — it was held that the plaintiff could not recover.

In *Nelson vs. Dubois,*13 J. R. 175, the recovery was sustained on the third count in the declaration, which considered the plaintiff’s undertaking as a guarantee. It is true that the first count was against him as maker. It does not appear to be noticed by Spencer, J., who ruled that the evidence offered to charge the defendant, and ex-eluded on the circuit, was admissible under the third count. This reasoning, however, throughout, proves that the defendant’s undertaking was original, and not collateral, and that his liability arose from the act of writing his name on the note, intending to make it good to the plaintiff. The words, “ the defendant is as much holden as if he had signed the body of the note,” are far from being equivocal; they plainly import that the defendant might be liable as maker.

I am aware that there are other cases in New York, which may seem to have a contrary tendency. They, however, do not, so far as I have been able to examine them, touch on the doctrine which I deduce from the cases cited.

In *Frampton vs. Dudley,*1 N. & M’C. 129, the Court of this State first directed its attention to this subject. The note there was payable to the plaintiff or bearer. The defendant wrote his name on the back of the note; the declaration counted against him — first, as endorser; second, specially, that the defendant agreed to become security for the drawer, and therefore endorsed it; third, for money had and received. Under these counts, the Court ruled the plaintiff could not recover — holding that under the second count no s ufficient consideration was stated. But th e Court intimated a strong opinion, that if the defendant intended to become a party “ *to the original*contract,” he might in some other form be made liable. The reporters suggested the inquiry, whether he might not be made liable, as drawer. In *Eccles vs. Ballard,*2d M’C. 388, the Court responded to that ruling that the endorser of a note *322payable to bearer shall be considered as the drawer of a new bill. If I was compelled to rest this case *here,*I should think I had done enough to vindicate the decision below. For certainly the weight of authority is altogether in favor of it. Indeed the case of *Eccles vs. Ballard*touches the very point. For when it ruled that the endorser of a note, payable to bearer, must be regarded as the drawer of a new bill, it was upon the ground that his contract was otherwise legally inoperative. In the case before us the same result would follow, if we could not come to a similar conclusion. For to endorse a note payable to another can have no effect, if it does not make the defendant liable as the maker of the note.

The English cases will, I think, lead us to the same conclusion.

In *Hill vs. Lewis,*Skinner, 410, C. J. Holt, before a jury of merchants, and with their assent, ruled that a bill payable to bearer was not endorsable; yet if it be endorsed, * the endorser shall be charged — for every such endorsement . is as a new bill. Why, it may be asked, was this ruling •made'? It was because the endorsement of such a bill could not have effect in its legal and technical character, and was therefore not subject to the rules governing that class of contracts, and hence the Court was obliged to regard it as a new bill, directing the payment to the endorser of the contents of the note according to its tenor and effect.

In *Hodges vs. Steward,*1st Salk. 125, the second point ruled was, “ though apt assignment of a bill payable to J. S. or bearer, be no gobd assignment to charge the drawer with in an action on the bill, yet it is a good bill between the endorser and endorsee, and the endorser is liable *to an action for the*money; for the endorsement is as a new bill.” "To the same effect was the ruling of the Judges in *Nicholson vs. Segewick,*1st Ld. Ray’d., 171; *Tassel & Lee vs. Servis,*1st Ld. Ray’d., 743-4. These cases abundantly prove that one who writes his name on the back of a note, payable to bearer, becomes originally liable for the contents. The reason why that is the law — because otherwise no legal effect would result from the endorsement — applies forcibly to the case now in hand. A promises to pay B, or order, money, and C, in order to give him credit and to *323make the note good, writes his name on the hack of it— unless this he regarded as a several undertaking to pay the note, it can have no legal effect from the paper itself. The object and duty of Courts is to enforce contracts, not to set them aside; and hence, unless there is something which renders it legally inoperative, it should have effect according to a fair construction. Looking to the note before us, and construing the words in connexion with the names of Zealy on the face and Beaubien on the back, it is no strained or unreasonable construction to say that on the 13th of December, 1838, each of them promised to pay to George M. Stoney, or order, on or before the 1st of May next ensuing, the sum of seven hundred dollars, for value received.

The motion is dismissed.

Richardson, Evans, Butler, and Wardlaw, JJ., concurred.