
    
      WEIR & AL. vs. COX.
    
    Appeal from the court of the first district.
    An endor-see of a bill of exchange, who has no interest in the bill, but endorses it to facilitate its - discount, is not always to be considered merely as a surety.
   Porter, J.

delivered the opinion of the court. This is an action by the payee of a bill of exchange against the acceptor. The liability of the defendant is set forth in the petition in the usual manner. The answer admits the acceptance, but avers that the bill has long since been paid: that the claim is barred by prescription: and finally, that the plaintiffs have deprived the defendant by their negligence of any recourse against the drawer, or his property, the bill being accepted merely for his accommodation.

The case was submitted to a jury in the inferior court, who found a verdict for the plaintiffs. The court confirmed it, and the defendant appealed.

Several bills of exceptions were taken on the trial, to the opinions of the judge refusing the defendant permission to give in evidence, letters of one of the plaintiffs, letters of the drawer, and the proceedings of the defendant against his creditors for a respite. They were rejected on the ground of irrelevancy, and no1 being within the pleadings; In those eases where the proof was excluded, because it varied front. the defence pleaded, the court was clearly correct; andan attentive perusal of the evidence considered to be irrelevant, has satisfied us that no error was committed in preventing it also, from going to the jury,

The defendant requested the judge to charge the jury, “that when the endorser of a bill of exchange has paid no value for it, nor been in reality the owner, but has merely endorsed it to accommodate the drawer, and enable him to raise money on it, such endorser, tho’ he should pay the bill after protest, is to be considered as surety of the drawer, and his rights are to be regulated as such.” The judge refused to give the opinion to the jury, and the defendant excepted.

We are of opinion the judge did not err in refusing to give such a charge to the jury. As between the drawer and the payees who had agreed to endorse for his accommodation, the 0 of suretyship was formed; as has al-rea(j |jeen decided jn th¡s court in the case of J Nolte & al. vs. their creditors. So also the payees and endorsers became sureties to all persons who might take the bill in the due course of trade. But the engagement of the acceptor was absolute to pay to them, and there is nothing in the terms of the obligation, nor we believe in the understanding of the parties, at the time they endorsed it, which creates the slightest presumption ^hey intended to become sureties to the acceptor, or that he honoured the draft on their responsibility; that they were to be bound not only to the persons to whom the bill was to be paid, but also to the person who promised to pay it. When an attempt is made not only to take a negotiable instrument out of the law. merchant, but to give to it a construction directly opposite to its literal meaning, a clear case should be made out of the intention and understanding of the parties. So far from that being the case, we do not believe it ever entered into the thoughts of the plaintiffs, that they were to be sureties to the acceptor* Nothing at least of that kind has been proved, and we are bound to con-elude that the understanding of the parties was conformable to the terms of the contract.

Hawes May bin for the plaintiffs— bridge for the defendant.

This defence we presume has been suggested, as it appears to be sanctioned, by the opinions of a late eminent judge in England sitting at nisi prius. But these opinions have been since overruled. Certainly until these decisions of Lord Ellenborough, it never was suggested that the engagement of the acceptor was not absolute to all the previous parties, and that nothing could discharge him but payment, or release. The law merchant of the United States is decidedly against the doctrine on which the appellant has relied, and soalso^ we are satisfied, is the reason of the thing.— Bayley on bills, 121. 2 Camp. N. P. C. 185. 3 ibid, 362. 4 Taunton, 730. 5 ibid, 192. 2 Starkie, 531. 6 Cowen, 484. 9 Sergeant & Rawle, 229. 3 Kent’s Commen. 57.

It is therefore ordered, adjudged, and decreed, that the judgment of the district court be affirmed with costs.  