
    * Elisha Josselyn versus Oliver Ames.
    An endorsee, for a 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 upon such promise against the endorser.
    The declaration was in case, and set forth a promissory note from one John Ames, payable to the defendant, for 118 dollars with interest; after which the declaration proceeds:—“And the said Oliver there afterwards, on the same day, by his writing under his hand on the back of said note, in consideration that the plaintiff had loaned to the said John, brother to said Oliver, and with whom the said Oliver then had a subsisting connection, 118 dollars, the said Oliver then and there promised the said Elisha to guaranty to him the payment of the contents of said note on demand, and then and there, in consideration of the premises, promised the plaintiff to pay him the contents of said note, agreeably to the tenor of the same; yet, though requested,” &c.
    Upon the general issue pleaded, the cause was tried before Parker, J., at the last May term, when a verdict was given for the plaintiff, subject to the opinion of the Court, upon a report of the evidence to be made by the judge who sat in the trial.
    By that report it appeared that John Ames, being indebted to the plaintiff upon a promissory note of an anterior date to that of the note described in the declaration, the plaintiff demanded security. John offered his brother Oliver as surety, whom the plaintiff agreed to accept. The present note was accordingly made by John; payable to Oliver (but not to his order), who endorsed it in blank. The plaintiff received it, and delivered up the former note to be cancelled.
    The plaintiff wrote over the defendant’s name on the back of the note, as follows:—“In consideration of the subsisting connection between me and my brother John Ames, and in consideration of receiving from Elisha Josselyn a note of the said John of the same amount, I promise and engage to guaranty the payment of the contents of the within note to the said Elisha Josselyn, on demand.”
    There was evidence of the defendant’s confession that he was answerable to the plaintiff for the debt, and that he expected to pay it. No demand on John, or notice to the defendant, was proved.
    
      *Thomas, in support of the verdict,
    contended that the [ * 275 ] defendant having given to the plaintiff an endorsement in blank, the plaintiff had a right to fill it up in any manner he thought best; and he cited the case of Russel vs. Langstaffe 
      , and a case reported in a book called American Precedents of Declarations (page 113 in the notes'), there said to have been decided in this Court, on the Eastern Circuit, 1801.
    
      
      
        Doug. 514.
    
   Per Curiam.

The guarantor in that case was not the promisee, but a stranger, who warranted the payment to him. He cannot himself warrant to a third person payment of a note made payable to himself, and not negotiable. The plaintiff cannot recover in this action; but according to the facts reported, he may cancel what he has endorsed on the note, and instead thereof may write, “ For value received, I undertake to pay the money within mentioned to E. J.” And upon such an endorsement he may maintain an action on the facts reported.

Bay lies, for the defendant.

The parties afterwards agreed that judgment should be entered for the plaintiff for the damages found by the verdict, without costs .

Memorandum. Nahum Mitchel, Esq., was. at this term, appointed one of the examiners of counsellors and attorneys within this county. 
      
      
        [Moies vs. Bird, 11 Mass. 436.—While vs. Howland, 9 Mass. 314.—Carver vs. Warren, 5 Mass. 545.—Sed vide Tenny vs. Prince, 4 Pick. 385.—S. C. 7 Pick. 243.— Burchard vs. Bartlett, 14 Mass. 279.—Brush vs. Reeve, Admr., 3 Johns. 439.—Jackson vs. Richards, 2 Caines’s Rep. 389.—Tilman vs. Wheeler, 17 Johns. 326.—Huntingdon vs. Harvey, 4 Con. R. 124.—Hill vs. Lewis, 1 Salk. 132.—Gov. &c. Bank of England vs. Newman, 1 Ld. R. 442—Bailey on Bills, ch. 5. § 1.—Chitty on Bills, 142.—Thomson on Bills, 101. 285.—Waynam vs. Bend, 1 Camp. 175 ; and see the notes to the three cases first cited.—Ed.]
     