
    William Robinson vs. John Abell and another.
    When the name of a stranger is indorsed upon a promissory note, no recovery can be had against him, charging him as maker, without proof that the indorsement was made at the time of the execution of the instrument, or that he intended to be held as such maker.
    This a Writ of Error directed to the Court of Common Pleas,of Trumbull County.
    The original action was commenced by the plaintiff in error, against the defendants, before a Justice of the Peace, and appealed from the decision of the Justice, to the Court of Common Pleas of Trumbull county.
    In this latter Court, the plaintiff declared upon a promissory note, bearing date June 1st, 1845, payable to plaintiff or bearer, for the sum of ninety dollars, payable six months after date; charging the defendant, Abell, as principal maker, and his co-defendant, Palmer, as surety; and also declared in the common counts.
    
      To this declaration the defendant Palmer, Abell being in default, pleaded the general issue, and several special pleas. It is unnecessary to set forth these special pleas, as the raised in the case have no reference to them.
    At the February Term of the Court of Common Pleas, 1848, the case was submitted to a jury; and after the plaintiff had closed his testimony, the Court, on motion of the defendant, non-suited the plaintiff, and entered a judgment against him for costs. The plaintiff afterwards moved the Court to set aside the nonsuit, and to grant a new trial; which motion was overruled.
    A bill of exceptions was then tendered by the plaintiff, and allowed by the Court, showing the foregoing facts.
    This writ of error is prosecuted to reverse the aforesaid judgment, and the following errors are assigned:
    1st. That the Court erred in ordering the judgment of non-suit.
    2d. That the Court erred in refusing to allow the plaintiff to call a witness to prove that N. W. Palmer put his name on the note, when it was given, and that the note was executed by John Abell.
    3d. That the Court erred in refusing to sustain the plaintiff’s motion, to set aside the nonsuit.
    4th. That judgment was given for defendant, when it should have been given for plaintiff.
    
      Crowell 8f Brown for Plaintiff in Error.
    The plaintiff was non-suited because he did not prove the signature of Palmer, one of the joint makers of the note, on which suit was brought, whose signature was on the back of the note, instead of being on its face, under the signature of John Abell, the other joint maker.
    Did the Court err in ordering the non-suit? We think it did, and will briefly give the reasons for this opinion.
    By an Act to regulate judicial proceedings where Banks and Bankers are parties, (Swan’s Statutes, 149, Sec. 51,) it'is pro-when any sum of money due, and owing to any bank or banker, shall be secured by indorsement on the bill, note, or obligation for the same, it shall be lawful for such bank or banker to bring a joint action against all the drawers or indorsers, &c., and each defendant may make the same separate defence against such action, either by plea or upon trial, that he could have made against a separate action, &c.
    These joint actions were riot permitted to be brought in any other cases, except those where banks and bankers were parties, till the year 1844, when it was enacted, (Statutes of Ohio, vol. 42, p. 72, Sec. 1,) that the lawful holders of any'promissory note, due bill, or bill of exchange, might commence and prosecute joint actions' for money had and received against all the original makers and indorsers thereof, and may give such note or bill in evidence, and each of the defendants may plead separate pleas, and make separate defences, &c.
    This last Act, like the one regulating judicial proceedings, where banks and bankers are parties, does not alter the rule of evidence, or repeal the Act, dispensing with proof in certain cases, Swan’s Statutes, 325, Sec. 18. Its only 'object appears to be to change the practice of the judicial Courts, and place all other parties to suits on notes, or bills of exchange, on the same footing with banks and bankers.
    By the express terms of the act, dispensing with proof in certain cases, (Swan’s Stat., p. 325, Sec. 18,) on plea of nonassumpsit or nil debit offered by the person charged as the maker or indorser of any promissory note, or drawer, indorser or acceptor of any bill of exchange, it is not necessary for the plaintiff to prove the making of the note, or the drawing or accepting of the bill of exchange, upon which such suit is brought or any indorsement thereon, unless the party offering such plea, shall make affidavit of the truth thereof, or that any such indorsement was not made as it purports to have been, &c.
    This act, in terms, applies to the case at bar, and as Palmer made no affidavit of the truth of the plea which he interposed, the Court below was- clearly in error in non-suiting the plaintiff, because he did not prove Palmer’s signature. Such was unnecessary, for the reason that the statute, in so words, dispenses with it, unless affidavit is made of the truth of the plea.
    If Palmer had put his name on the note after it was made, or in any other capacity than as joint maker — if he had signed it, for example, as surety, it would be matter of defence for him to make out by proof. And the statutes of this State have removed the impediment which the common law had put in the way of such proof. Swan’s Statutes, p. 481-2, Sec. 26.
    The proof should properly come from the party, whichever it may be, that is to have the benefit of it. This is the legal, as it is the common sense rule, and there is no reason for departing from it. The law presumes that Palmer is a joint maker, and signed the note when it was executed by Abell.
    8 Met. Rep. (Mass.) 504 -— Union Bank .of Weymouth and Braintree v. Willis. In this case the Court say, “ But that the promise was made - at the same time with the note, is a fact which is to be presumed when the note is jn the hands of a bona fide holder, and nothing is shown to the contrary. The plaintiff is the payee, and .there is no pretence that he is not the bona fide holder.” At any rate, there is no proof to the contrary.
    The Court further say, “ if he put his name on the note, at the time it was made, he is a promisor, if after the making of the paper, he is a surety or guarantor, according to the agreement upon which he gives his signature.” The same doctrine, for which we now contend, js held by this Court in Bright v.. Carpenter and Shuer, 9 Ohio Rep., 139; and we cannot find that it has been seriously controverted in any reported case.
    But it was supposed by the Court below that the case of Champion and Lathrop v. Griffith, 13 Ohio Rep., 228, overruled Bright v. Carpenter and Shuer, and introduced a new rule. This, however, is a mistake, as will be seen on an examination of the case.
    
      It is plain, from the arguments of counsel and the opinion of Court, that proof was introduced to explain Griffith’s indorsement.
    The Court say, “ In the case at bar it was not shown when Griffith’s indorsement was made; but from the facts in evidence it is fair to presume, that his name was indorsed on the note, not at the time, but after its execution by Bridgman.” The proof distinguishes the case, therefore, from the one at bar, and the question now involved did not arise in .that case. Whatever was said by the Court, in pronouncing the opinion, in Bright v. Carpenter, touching the question now under consideration, was merely obiter dicta, and of no binding authority. When a stranger indorses his name on a note after its execution, he is a guarantor, and not a joint maker. Upon this point there is no disagreement, all the authorities appear to harmonize. By the express terms of our statute, when suit is brought against joint makers of a note, proof of their signatures need not be made, without the affidavit which the law requires; and the rule is not changed, if some of the signatures happen to be on the back, instead of being on the face of the instrument. The’ Court, therefore, was clearly wrong in ruling that the signature of Palmer, who was one of the joint makers of the note, ought to be proved.'
    The decision was wrong for another reason. Abell was in default of a plea, and plaintiff was certainly entitled to judgment against him. The statute authorizes separate defences, and a successful defence by one defendant cannot enure to the benefit of another, who has no defence, and who makes none.
    But as the principal error is decisive, others need not be urged.
    
      R. P. Ranney for Defendents.
    Suit was brought in this case upon a promissory note drawn by John Abell, and payable to. the plaintiff, six months after date, and dated June 10, 1845. The note was indorsed in blank, first by the plaintiff, and then by the defendant in error. The defendant also upon the back of the note acknowledged notice of non-payment, December 9, 1845. The plaintiff, the trial, gave in evidence this note and rested. ' The in error moved a nonsuit, which was granted by the Court, and subsequently .refused to be set aside; and the only question is, whether in this the Court below erred ? To determine this it is necessary to fix the character of Palmer, and the relation he sustained to the note. Was he indorser, guarantor, or joint maker ? He was sued with Abell, and declared against as a joint maker or surety. But where did his position upon the note place him, unexplained ? I contend that it showed him to be an indorser, and as such entitled to demand and notice. The note was nogatiable and appeared to have been first transferred by the payee by indorsement. Such names as might appear upon the note after his, would be presumed to be placed there as indorsers in the regular transmission of the paper from hand to hand in the course of business. When the title appears to have been transferred by the payee, such names as appear after his, cannot be said to be “ stranger’s names.” On the contrary,they may, and are presumed to-be, connected with the title as successive owners of the paper. In this case there was no evidence of any demand, and the notice acknowledged upon the note appears to have been given one day before the note fell due by its ■ terms, and four days before it was due in fact, the days of grace being added. No right, therefore, was shown to recover against the defendant as indorser.
    
    But suppose the note had not been indorsed by the plaintiff, and it had appeared that Palmer was a “ stranger ” to it, what character would then attach to him prima facie, without any explanation? This question isvdirectly-and positively answered by this Court in the case of Champion Lathrop v. Timothy . Griffith, (13 O. R. 228,) by deciding that “ The mere indorsement upon a note, of a stranger’s name in blank, is prima facie evidence of guaranty,” and that “ To charge such person as a maker there, must be proof that his indorsement was made at the time of execution by the other party, or, if afterwards, that it was in pursuance of an agreement or intention that he -should become responsible from the date of the execution,” that “ such agreement or intention might be proved by parol,” and that “ The rule was the same, whether the instrument was negotiable or not.”
    With the single exception alluded to above, (and which makes the decision below more clearly correct,) it is impossible for any man to point out the least distinction between this case and the case cited. In that case the Supreme Court nonsuited the plaintiff, and refused to set it aside when moved. • If the Supreme Court were right, how can the Common Pleas be wrong when they have “ followed in the footsteps.” I do not propose to discuss the correctness of that decision. It was recently made, fully discussed, and concurred in by the whole Court. I believe it rests upon a substantial foundation, and when a question of that kind is once settled by the Supreme Court by extracting the rule from the conflicting decisions of other States, the people and inferior tribunals have a right to repose upon it with confidence that it will not be overturned.
    It has been intimated that this decision conflicted with the decision it the case of Bright v. Carpenter fy Schuer, 9 O. It. 139. This supposition is incorrect. Evidence was there offered to show that Schuer was a joint maker of the note, and the question was, whether such evidence was admissible. The -Court held that it was, and gave judgment for the plaintiff. It is true that the Judge who delivered the opinion seemed to think the evidence unnecessary ; but that question did not arise in the case, nor was it decided by the Court. The refusal of the Court to hear evidence after the motion for a nonsuit was granted, was so clearly a matter of discretion, as to require no notice here.
   Hitchcock, J.

In this case Palmer was sued as joint maker of the note, although it is not attempted to charge him as principal, but only as surety. To sustain his action the plaintiff offered in evidence the following note:

“ Six months after date, for value received, I promise to pay William Robinson or bearer, ninety dollars, with use.- Warren, June 10, 1845.” ' '

. Signed “John Abell for John W. Abell.”

The note was indorsed as follows : “ William Robinson,”

“N. W. Palmer.”

“I acknowledge notice of N. P., Dec. 9, 1845. N. W. Palmer.”

No. farther testimony was offered.

Upon this evidence the Court, on motion of defendant, non-suited the plaintiff, and this ig the first error complained of. In order to determine whether in this there is any error, it is necessary to ascertain in what character Palmer is to be considered. The name of Robinson,' the payee of the note, is indorsed upon it, and afterward appears' the name of Palmer. Taking the note itself,'and the indorsements thereon, no one would hesitate to say that Palmer,was indorser, and that before he would be made liable, payment must be demanded of the maker, and if not paid, notice must be given. Palmer acknowledged notice of non-payment, but there was no evidence of any demand. There was not sufficient' evidence, then, to take the case to the jury either upon the special or general counts.

The plaintiff in error insists that Palmer is to be considered merely as a maker of the note, and that the only effect of his placing his name upon the back of the instrument is, to give him the character of a surety. Suppose that no other name but that of Palmer had been indorsed, would the production of the noté alone, without other evidence, have been sufficient to warrant a recovery by the plaintiff? This question is answered by this Court in the case of Champion and Lathrop v. Griffith, (13 Ohio R. 228,) in which it was held that the mere indorsement upon a note, of a stranger’s name in blank, is prima facie evidence of guaranty, ljut if made at the time of execution by the other party, or in pursuance of an intention to become responsible, it is an original undertaking, and such person will be held as maker, of the note.. It is said further, that such intention may be proved by parol. According to this decision, it was necessary for the plaintiff to have offered further evidence than the note itself, before he made out a 'prima facie case for recovery against Palmer as maker. And no other evidence being offered, the Court decided correctly in ordering the nonsuit.

After the nonsuit was ordered, the plaintiff moved to have it set aside, and offered proof to show that the indorsement was made at the same time the note was executed. The Court however overruled this motion and entered judgment, and this is assigned for error. Although as - a general rule, I should be disposed to set aside a nonsuit* and admit the evidence in a case like this, I am not aware that there is any principle of law which demands it. I suppose it is a matter which rests in the sound discretion of the- Court, and as the Court of Common Pleas, in the exercise of such discretion, overruled the motion, this Court cannot say that in so doing any rule of law was violated.

Judgment of the Court of Common Fleas affirmed.  