
    John Moies versus Abraham Bird.
    A bargains for land of B, and engages to furnish, for part of the purchase money & promissory note, with a sufficient endorser or surety, or to give a mortgage of the land. Upon the execution of the conveyance he gives his own promissory note, and a day or two afterwards, C puts his name on the back of the note, saying that he would do it to make B easy, but would not De accountable for a farthing upon the note. C was holden liable as an original promisor.
    Case on a promissory note, dated January 1, 1810, for 355 dollars, payable in one year from its date.
    At a trial of the cause upon the general issue, before the late Chief Justice Sewall, at the sittings after October term, 1812, the plaintiff gave in evidence a note of the date set forth in the declaration made to the plaintiff, and promising to pay him, or his order, 355 dollars in one year, which was signed by one Benjamin Bird, whose signature was admitted. The defendant also admitted that his name had been signed in blank upon the back of said note.
    
      William Bird, sworn for the defendant,
    testified that, after a bar gain between the plaintiff and Benjamin Bird for the sale and pur chase of an estate, which the plaintiff had conveyed to Benjamin-Bird, the witness and the defendant were applied to by the plain tiff, who said he had a note, which he wanted one of them to en darse. The witness refused, and the defendant observed that it was not a negotiable note, and said that he would not endorse it • but finally said he would write his name, to make the plaintiff easy, but would not be accountable for a farthing upon the note; and that this application was after the estate had been sold, and the business settled.
    
      John Eaton, sworn for the plaintiff,
    testified that the note in question, and another note, originated in the sale and purchase of an estate which the plaintiff conveyed to B. Bird, the witness having negotiated the bargain between them; that in the bargain B. Bird agreed to pay a part of the purchase money in cash, and to secure the residue by notes, with a sufficient en-[*437] dorser, or by a mortgage upon the estate; *and proposed to give one of his brothers, Alraham or William, as an endorser or security on the notes; that the part payable in money being received, and notes made for the balance, signed by B. Bird, a deed was given to him by the plaintiff; and one or two days afterwards the endorsement of the defendant was produced, or came to the knowledge of the witness.
    The judge directed the jury that, if they believed that the plaintiff conveyed his land to B. Bird, upon the expectation of security by the name or endorsement of Abraham or William Bird, as guarantor of B. Bird’s notes, and had obtained the defendant’s endorsement upon the note in question in consequence of that agreement, they might find for the plaintiff; and that the endorsement in blank by the defendant was of the same effect as a signature upon the face of the note under the name of B. Bird would be; in which case the defendant would be considered as a surety for B. Bird in the same promise; unless the endorsement had been explained by the evidence, and proved to have been made with some different intent and purpose; and it was incumbent on the defendant to prove some different meaning or intent of his signature.
    The counsel for the defendant objecting to this direction, the jury having returned a verdict for the plaintiff, the judge reserved the case for the consideration of the whole Court.
    The cause was argued, at the last October term, by Harrington for the plaintiff, and by Hastings and Worthington for the defendant.
    
      Worthington
    
    contended that this was a collateral undertaking for the debt of another. The transaction between the plaintiff and B. Bird was completed several days before the defendant put his name upon the note ; and at the time of doing it he declared that he meant not to be answerable in any event, which is wholly incompatible with a promise to pay the money. This being a promise to pay the debt of another, if it was any promise at all, and not being in * writing, was void by the statute of [ * 438 ] frauds. Nor was there any evidence of a consideration, without which a collateral promise is void.
    The case of Ulen vs. Kittredge 
       was different from this. There the endorser gave special authority and directions as to filling up the blank endorsement. Here the defendant may well be understood as forbidding any thing to be written which should make him liable. '
    
      Harrington.
    
    When one places his name on the back of a promissory note, he must be supposed to intend something. If he does it with no intent of increasing the security of the holder, he is guilty of a fraud, of which he ought not to benefit himself. The case of Josselyn vs. Ames 
       is an authority precisely in point for the plaintiff.
    
      Hastings.
    
    In Josselyn vs. Ames, the note was endorsed by the promisee: here the defendant was a stranger, and the plaintiff had no right or authority to fill up the blank.
    
      The cause stood over to this term, and now the opinion of the Court was delivered by
    
      
       7 Mass. Rep 233
    
    
      
       3 Mass. Rep. 274.
    
   Parker, C. J.

[After reciting the facts from the report.] A verdict having been returned for the plaintiff, a motion is made for a new trial, upon the ground that the direction given at the trial was not right in point of law; and this motion has been urged upon the Court.

It is insisted, by the defendant’s counsel, that, as the bargain for the land had been completed, and the deed delivered, before the note was presented to the defendant for his signature, his undertaking was merely collateral, and not binding, for want of a consideration, and for want of a memorandum in writing, according to the provisions of the statute of frauds and perjuries; or that, if the defendant be liable at all, it must be only as guarantor of the payment by the promisor; in which case evidence of such being the intent of his signature ought to have been given by the plaintiff, to maintain his action.

[ * 439 ] * But we are of opinion that the direction given by the judge, upon the facts proved in the case, was right, and that the verdict is fully justified.

It was in evidence that the endorsement or security of the defendant, or that of his brother William,, was one of the grounds of the bargain between the plaintiff and Benjamin Bird. The plaintiff parted with his land without taking a mortgage, upon the faith of receiving a note so secured. Although no evidence exists of an agreement, on the part of the defendant, to endorse, before the bargain was made, yet the plaintiff had a right to presume, when the names of the purchaser’s brothers were mentioned to him, that there had been an arrangement between the brothers for that purpose. The signature by the defendant, a day or two after the note was made, of itself furnishes evidence that there had been a previous agreement or encouragement on his part to aid his brother in the purchase by lending his name; and his declaration, at the time of his signature, that he gave his name to make the plaintiff easy, but that he would not be accountable, carries with it a strong implication that he was under a moral obligation to comply with some stipulation previously made, and which probably formed an inducement to the plaintiff to transfer his land. If it was a fact that his signature was in consequence of the purchase made by his brother, upon representations made that he would sign the note, although his signing was not until after the delivery of the deed, his act ought to be referred to the date of the transactions; and he must be presumed, when he signed in blank, to have assented to such a reference; so that he would be considered, in law as well as justice,, as having placed his name on the note at the time it bears date, if that be necessary to give effect to his engagement.

The jury having, by their verdict, established the fact that the defendant’s signature was in consequence of the bargain for the land, and of the expectation that his name would be placed upon the note, it becomes merely a question, as to the form of the action, whether the plaintiff has * brought his action [ * 440 j right, in charging the defendant with having made and signed this promissory note, or whether he should have declared against him as guarantor, after having written over his name words tending to charge him in that particular form.

It is manifest that the defendant intended to make himself liable in some form; at least such is the intent legally to be presumed, even against his declaration at the time of signing. Had the note been made payable to him, and negotiable in its form, the plaintiff would have been restricted to such an engagement written over the signature as would conform to the nature of the instrument. In such case, the defendant would have been held as endorser, and in no other form ; for such must be presumed to have been the intent of the parties to the instrument. But this note was not made payable to the defendant, and therefore was not negotiable by his endorsement.

What, then, was the effect of his signature ? It was to make him absolutely liable to pay the contents of the note. If he had been asked, after the note became due, to guaranty its payment, and such had been the understanding when he gave his name, it might have been necessary to declare against him as guarantor, instead of charging, him as original promisor; but no such agreement is proved He puts his name upon a note, payable to another in consequence of a purchase made by his brother, in a day or two after the bargain was made, knowing that he could not be considered in the light of a common endorser, and that he was entitled to none of the privileges of that character. He leaves it to the holder of the note to write any thing over his name which might be considered not to be inconsistent with the nature of the transaction. The holder chooses to consider him as a surety, binding himself originally with the principal; and we think he has a right so to do. If he was a surety, then he may be sued as original promisor.

We are satisfied that the verdict is right, and judgment must be rendered accordingly.

Judgment on the verdict, 
      
       5 Mass. Rep. 358, Hunt vs. Adams. — 9 Mass. Rep. 314, White vs. Howland,
      
     
      
      
         White vs. Howland, 9 Mass. Rep. 314.— Sumner vs. Gay, 4 Pick. 312. — Joselyn vs. Ames, 3 Mass. Rep. 274. — Sed vide Tenny vs. Prince, 4 Pick. 385. — Bur 
        
        chard vs. Bartlett, 14 Mass. Rep. 279. — Carver vs. Warren, 5 Mass. Rep. 546. — Brush vs. Reeves, Admr. 3 Johns. 439. — Jackson vs. Richards, 2 Caines’s Rep. 345. - - Hodgkins vs. Bond, 1 N. H. R. 284. — Palmer vs. Grant, 4 Conn. R. 389. — Tilman vs. Wheeler, 17 Johns. 326. — Huntington vs. Harvey, 4 Conn. R. 124. — Hill vs. Lewis, 1 Salk. 132. — Governor, &c., Bank of England vs. Newman, Lord Raym. 442. — Bailey on Bills, c. 5, § 1.— Chitty on Bills, 142.— Thompson on Bills, 101, 285— Waynam vs. Bend, 1 Camp. 175. And see note to White vs. Howland, ubi sup.
     