
    [MAY TERM, 1823.]
    *Force against Craig.
    IN ERROR.
    1. Where a note or hill contains in the body of it, the words “witness my hand and seal,'1 and has a flourish or scroll under the name, proof of the handwriting of the drawer is sufficient evidence for the jury to presume that the scroll was put to the instrument by way of seal, and that it was sealed and delivered.
    2. There needs no other proof that the scroll was intended for a seal than the instrument itself saying “ witness my hand and seal.”
    3. Proof of a defendant’s signature to an assignment or endorsement on a note or sealed bill is evidence of the assignment as it stands.
    4. The doctrine, that the holder of a note must use due diligence to obtain payment of the drawer, does not extend to holders of sealed bills.
    5. Where a person assigns a sealed bill to another, and agrees to stand security thereon until paid, although the drawer lives three years in good credit after the bill became due, without being called upon by the holder for payment, and afterwards fails, the assignor will be liable upon his special-guaranty.
    
      The declaration contained several counts :
    1st. It set forth, that John Brown, on the 5th of April, 1815, made his bill obligatory, sealed with an ink scroll, as the seal of him, the said John Brown, acknowledged himself indebted to Henry Force, and did thereby promise to pay to Henry Force or order, six months after date, two hundred and fifty dollars, without defalcation or discount, with interest from date, for value received, and to which payment, well and truly to be made, the said John Brown bound himself; that the said Henry Force, before the payment of the said bill, to wit, on the 1st day of April, 1816, for value received, assigned the said bill to David S. Craig, and by such assignment agreed to stand security till paid ; and that John Brown, though requested by him, hath not paid the'.said bill, but' hath refused, and hath become insolvent, by reason whereof the said Henry Force became liable to pay the amount of said bill, according to the tenor thereof, and.of the assignment so made thereon.
    2d Count. Stated that John Brown made his promissory note payable to Henry Force or order, and that before the payment of the money, or any part thereof, to wit, on the 6th of April, 1816,.endorsed the same to David S. Craig, and agreed to stand security thereon till paid, of which endorsement the said David *S. Craig, on the day and year aforesaid, informed the said John Brown, and demauded payment of the said note ; but he refused to pay the same, and has become insolvent and wholly unable to pay the same; by reason whereof, and by force of the statute, and by virtue of the said endorsement, the said Henry Force became liable to pay to the said David S. Craig the money due on the said note.
    3d. A count for money paid.
    4th. A count for money lent.
    Plea. Non assumpsit.
    
    
      The plaintiff produced, in support of his demand, a writing, of which the following is a copy:
    |250.
    “ Six months after date, I promise to pay to Henry Force, or order, two hundred and fifty dollars, value received, without defalcation or discount, with interest from date till paid. Witness my hand and seal, April the fifth, eighteen hundred and fifteen.
    “ John Brown.”
    
      Endorsed. — For value received, I assign all my right, title, and interest to the within note, and stand security for the same until paid.
    Henry Force.
    May 1, 1815.
    And it was proved that the signature to the said bill or note was the signature of the said John Brown, and that the signature to the endorsement was the signature of Henry Force, but that the handwriting of the body of assignment or endorsement was the handwriting of Craig; that the note was endorsed by Force to Craig on the 1st day of May, 1815; that on the 2d day of June, 1818, John Brown failed, and made an assignment of his property for the benefit of his creditors; that about four weeks after Brown had become insolvent, and on the same day that his assignees had a vendue to sell his property, Craig demanded payment of the said bill or note from Brown, and payment was refused; that on the same day he gave Force notice of non-payment; that John Brown’s credit, in the years 1815, 1816, and 1817, and until May 1818, was good; and that until the last mentioned time he continued to pay demands upon him *promptly, and was reputed a man of property;' he had been a merchant of good standing, and always maintained a good credit until the period of his failure ; that David S. Oraig lived within a mile of the said John Brown, and was the attending physician of the family of the said Brown, and saw him frequently; that the note was assigned to Craig in part payment of some land which Force purchased of him.
    His honor Justice Ford charged the jury as follows :
    
      Gentlemen: — This is a cause of some complication. It will be recollected that the foundation of it is a certain sealed bill or note, with a stipulation endorsed, that the defendant stands security thereon until paid. The defendant sets up three grounds of defence, and if either of them are sanctioned by law the j ury must find a verdict in his favor. 1st. He says that the plaintiff, in his declaration, sets out the instrument under seal, and that the instrument produced does not appear to be sealed. If it be not a sealed bill your verdict will be for the defendant. What then is a seal ? By the common law it must be- either wax, or wafer, or some glutinous substance; but by our statute it may be a scroll. If a man makes use of a scroll, by way of seal, upon any instrument for the payment of money, it shall be taken and adjudged to be of the same force and obligation as if it were sealed with wax. Here there is a scroll. The question is, was it put there by the defendant, by way of seal ? The defendant demands evidence that the scroll was intended for a seal, but there needs no other proof than the instrument itself saying “ witness my hand and seal.” In this state of things, the court and jury are bound to treat it as a sealed bill. 2d. The second defence is, that the defendant’s name was endorsed in blank, and that the plaintiff wrote a special guaranty over it, without the defendant’s knowledge, privity, or consent. If this were so, the defendant should have proved it, and it would have formed a valid defence; but, as far as I know, he has given no proof whatever of this charge. Proof of the defendant’s own proper signature is evidence of the assignment, as it stands, until the contrary appears ; and if the law were otherwise, more than half of the commercial paper in the country might be put afloat, and destroyed by presumption. I think that the jury well have no difficulty in saying they cannot defend Mr. Force upon this ^ground. 3d. The last defence is, that the plaintiff' did not use due diligence to obtain payment of the bill when it became due from the maker; that Brown lived three years in full credit and prosperity after the money was payable before he gave up his property to his creditors. But the plaintiff was under no obligation in law to demand payment with due diligence in the case of a sealed bill. The law upon negotiable notes is, that the endorser will pay on condition that the endorsee cannot obtain payment at the day, it does not, however, extend to a sealed bill. The defendant promises, under his hand, to be security till the money is paid ; no condition for due diligence is expressed in the assignment, none is implied in law.
    Then if this is a sealed bill, and this endorsement made at the time it purports to have been made, and the name subscribed thereto is the name of the defendant, it follows, of course, that your verdict must be for the plaintiff.
    The jury found a verdict for the plaintiff. To the charge delivered by the court the defendant excepted, and brought a writ of error, upon the return of which the following errors were assigned for the reversal of the judgment.
    1. That the justice charged the jury, among other things, in the words following : “ The defendant demands evidence that the scroll was intended for a seal, but there needs no other proof than the instrument itself saying, ' witness my hand and seal.’ ” In this state of things, the court and jury are bound to treat it as a-sealed bill.
    2. That the justice charged the jury, that they were bound to treat the said instrument as a sealed bill.
    
      3. That the justice charged the jury in the words following : “ The second defence is, that the defendant’s name was in blank, and the plaintiff wrote a special guaranty over it without the defendant's knowledge, privity or consent. If this were so, the defendant should have proved it, and it would have formed a valid defence, but, as far as I know, he has given no proof ■ whatever of this charge, and a court and jury are not at liberty to presume the existence of ■fraud without evidence. Proof of the defendant’s own proper signature is evidence of the assignment, as it stands, till the contrary appears, and if the law were otherwise more than half of the commercial paper in the state might be put afloat and destroyed by presumption.”
    *4. That the justice charged the jury in the words following: " The last defence is, that the plaintiff did not use due diligence to obtain payment 6f the bill when it became due from the maker ; that Brown lived three years in full credit and prosperity after the money was payable, before he gave up his property to his creditors. But the plaintiff was under no obligation in law to demand payment •with due diligence in the case of a sealed bill. The law upon negotiable notes is, that the endorser will pay on condition that the endorsee cannot obtain payment-at the day; it does not, however extend to a sealed bill. The defendant promises under his hand to be security till the money is paid; no condition for due diligence is expressed in the assignment — none is implied in law.
    5. That the declaration is insufficient in law to maintain the action.
    6. That judgment was given for David 8. Craig against the said Henry Force, when by the law of the land it should have been given for the said Henry Force against the said David S. Craig.
    Wm. Halsted, Jun., Attorney for Plaintiff,
    
    Defendant joins issue, denying that there was any error.
    
      The points on which the counsel for the plaintiff in error, relied were — 1. That the instrument upon which the action was brought was not a sealed bill, but a promissory note, and that the flourish under the name of the drawer was not a scroll or device by way of seal, in the meaning of the statute.
    2. That the words in the body of the note, “ witness my hand and seal,” were no evidence that the flourish under the name was meant for a seal. Hay. Rep. 1; Salk. 214; 2 Co. Rep. 5 ; 1 Dyer Rep. 19, a; PI. 113 ; Co. Lit. 7, a.
    
    3. That if the words “ witness my hand and seal ” were any evidence that the flourish under the name was meant for a seal, yet they wtere not conclusive evidence; but the jury should have been left to judge from the appearance of the note itself, and from the whole evidence in the cause, whether the flourish was meant as a seal or not. Hay. Rep. 13; Gi'lb. Evi. 21; 2 South. 451; Co. Lit. 36, 171, 5; Ibid. 225, b ; Trials per Pais 257; 10 Go. Rep. 92; 2 P. Wms. Rep. 432
    4. That proof of Henry Force’s signature on the back of the *note was not proof of the special assignment written above it, without proving that the special assignment wa.s written at the time the name was signed.
    5. That the circumstance of the writing above the name ol’ Force being proved to be the handwriting of Craig was some evidence from which the jury might judge whether the assignment was with the knowledge and consent of Force or not.
    6. That the defendant, Craig, was bound to use due diligence m demanding the money of the drawer.
    7. That the neglecting to demand payment until three years after the note became due, and until after the drawer broke, was such gross negligence on the part of the holder that the endorser, Force, was discharged. 3 John. Ca. 5, 259; 3 John. Rep. 230; Chit, on Bills 280, note; lb. 260; 8 East 242 ; 2 Taunt. 206.
    
      
      Chetwood, for defendant in error, cited Swift’s Law of Evidence 26; Phil. Evi. 363; 1 Camp. Pep. 375; 1 Peake's N. Prius C. 146-7; 4 Camp. 227; 1 South. Pep. 178; 2 Ibid. 584.
   The Court of Errors affirmed the judgment, seven voting for the affirmance, and five against it.  