
    Daniel Thomas et al. vs. Augustin Jennings et al.
    If a person, who is not the payee, put his name on the back of a note, at the time it was made, according to a promise to become originally and directly responsible ; or, if he participated in the consideration for which the note was given, he must be treated as a joint maker : Yet, if his indorsement was nwix subsequent to the making of the note, and he had nothing to do with the original consideration, but put his name on it to add to the security he will be regarded as a guarantor.
    J. & D. sued T. & E. & 0. as joint-makers of a note payable to J. & D.; the note was signed by E. &. 0. in the usual way ; but the name of T. was written on the back, the note being the only evidence introduced. T. asked the court to instruct the jury “ that the evidence given was not sufficient to support the action against him, and in the absence of other proof they ought to presume he put his name on the back of the note as indorser, and not as a joint-makerand the court refused to give the instruction; held, that the instruction was awfc-improperly refused ; and that the plaintiffs failed to make out their case.
    In error, from the circuit court of Hinds county, Hon. John H. Rollins, judge.
    This was an action of assumpsit, brought to the May term, 1840, of the circuit court of Hinds county, by Augustin Jennings and Richard S. Drone, who were partners, under the name and firm of Jennings & Drone, against Joseph T. Ellison, Ozias Osburn, and Daniel Thomas, as joint makers of a promissory note. The declaration contained but one count, and that averred the defendants were joint makers of the note sued on. The defendants pleaded the general issue. On the trial the plaintiffs read in evidence to the jury a promissory note, which was in these words, viz.:
    “ $591. Cayuga, April 16, 1839.
    “On the 1st day of February next (1840) we, or either, jointly and severally, promise to pay to Jennings & Drone, or order, the sum of five hundred and ninety-one dollars, for value received, negotiable and payable at the Branch of the Mississippi Railroad Company, at Raymond.
    
      “ J. S. Ellison.
    “ OziAS OsBORN.”
    Across the back of which note was -written the name of “ Daniel Thomas.” No other evidence being offered, on either side, the defendant, Thomas, asked the court to instruct the Jury, “ that the evidence given was not sufficient to support the action against him ; and, in the absence of any other proof, they ought to presume that his name was put on the back of the note as indorser, and not as a joint maker with Ellison and Osbornwhich was refused by the court, and the defendant, Thomas, filed his bill of exceptions.
    After a verdict and judgment in favor of the plaintiffs, the defendants removed the case to this court, by writ of error.
    
      D. Mayes, for plaintiffs in error.
    The question in the case is this: If a negotiable note is not indorsed by the person to whom it is made payable, is the presumption, in the absence of all proof, that he who did indorse it, signed his name on the back as maker, or that he signed it as second indorser? The court below was of opinion that prima facie he is maker. I maintain, that whether the facts and circumstances, attending the transaction, may or may not be proved by oral evidence, to charge him as maker or guarantor, he stands prim,a facie indorser.
    It is admitted, that if at the time a note not negotiable is executed, a party put his name on the note, as indorser, or to give him who executes the note credit with the payee, he may be charged as maker, or surety, or guarantor. He put it there to be charged, and as he cannot be charged as indorser, by any possibility, or on any contingency whatever, he may be holden as maker, surety, or guarantor, ut res magis valeat quam pereat. Those cases which hold that he may be thus held answerable, are supported by this maxim. We can readily point to the principle that governs and embraces them. The cases which hold that a party, putting his name on negotiable paper, maybe charged as maker, we can support by no maxim or principle, and no adjudication, not resolvable into some principle of law, can be correct. So soon as we adopt them, law ceases to be a science. But no case has gone so far as to pronounce that a party, writing his name on the back of negotiable paper, and the time when, and circumstances under which he did so, does not appear, he can be holden liable, as maker. I rely on the cases of Seabury v. Hunger ford, 2 Hill’s N. Y. R. 80; and Hall v. Newcomb, 3 Ibid. 233, as maintaining the doctrine for which I contend. The reasoning of the court, in these cases, appears to be so full and satisfactory, as to forbid that I should attempt to enlarge upon them.
    
      Sloan, for defendants in error.
    1. The indorser of a note is the drawer of a bill, by which he directs the payment of the money to the indorsee.
    2. If the money is not due to him ex vi termini, there is nothing for him to transfer, or direct to be paid to another. The indorser must necessarily, then, be the legal holder.
    3. The indorsement is a second contract, and if the indorser pays the money to the indorsee, he may sustain an action founded on the note, as against the maker. When payment is made by a surety who is a co-maker, the note is satisfied.
    4. In this case the note would be satisfied upon payment by Thomas; he cannot be considered as an indorser, and is to be held liable as maker. There was no money, by the terms of the note, due to him, upon which he could draw.
    5. Yiew him, however, as the drawer of a bill of exchange upon Ellison and Osburn, in favor of Jennings & Drone. Upon what fund did he draw? Upon that of Jennings & Drone.
    6. Apply to him the rule in such cases, there being no debt due to him, and no effects on which to draw, he is not entitled to notice of dishonor. See the cases of Josseline v. Ames, 3 Mass. 274; White v. Howland, 9 Ibid. 314; Moses v. Bird, 11 Ibid. 436. In the latter case the plaintiff rested his case upon the production of the note, and the evidence introduced by him afterwards was in rebuttal of that offered by the' defendant, and the court held" that' the' noté itself was sufficient to sustain the action.
    That a party indorsing must be the holder, is apparent from these cases.
   Mr. Justice Clayton

delivered the opinion of the court.

This was an action brought by Jennings <fc Drone against Thomas, and Ellison, and Osburn, as joint makers of a note, payable to the plaintiffs. The note was signed by Ellison and Osburn, in the usual way ; but the name of Thomas was written on the back. There was no evidence in the case except the note itself. The defendant, Thomas, requested the court to charge the jury, “ that the evidence given was not sufficient to support the action against him, and in the absence of other proof they ought to presume his name was put on the back of the note as indorser, and not as a joint maker.” The court refused to give the instruction ; the jury found a verdict for the plaintiffs, upon which judgment was rendered,' and' an appeal to this court.

The controversy is as to the relation which Thomas sustains to the instrument sued on: whether he is tobe regarded as maker, as indorser, or as guarantor. If he be a'matter'the judgment is correct;'if indorser it is incorrect, because of the absence of proof of the requisite’demand and notice; and if he be a guarantor a joint action cannot probably be sustained. There is but a single count in ihe declaration, and that ‘charges the defendants as joint makers.

The general rule is, that where paper is negotiable, one who writes his name on the back shall only be held liable as in-dorser. The rule, allowing a blank indorsement of a note to be construed into a guaranty, only applies where such construction is necessary to prevent an entire failure of the contract. Hall v. Newcomb, 3 Hill, 233. If a person, whose name is not on the face of the note as payee, indorse it, at most, if indorser at all, he only becomes second indorser. This usually affords no security to the payee, because if he put his name óñ ihe noté-as first indorser, he is primarily liable, and the other party only, in a secondary manner. But it has been said that there may be circumstances under which a prior indorser may recover against a subsequent one. 12 Johns. 160- These special circumstances must of course be made to appear by evidence of some sort; they canrjot be inferred. Here it is not attempted to charge Thomas as indorser.

In Dean v. Hall, 17 Wend. 214, the court says, “there are cases which decide that where notes have been made payable to a particular person or order, or to the order of a particular person, and indorsed first by a third person, such third person has been held to be an original maker of the note, or a guarantor of payment, according to the nature of the transaction, and the understanding of the parties. If such indorser put his name on the back of the note at the time it was made, according to a promise to become originally and directly responsible, or if he participated in the consideration for which the paper was given, he has been adjudged a. joint maker. If his indorsement was subsequent to the making of the note, and he had nothing to do with the original consideration, but put his name on the note to add to. the security, he has been adjudged a guarantor.”

This seems to be a very correct view of the subject. Without some evidence, therefore, explanatory of the character of the transaction, neither a court nor a jury would be able to determine in what light the contract of Thomas should be viewed. The criterion is wanting by which to fix the nature of his liability. The plaintiffs, in failing to prove the circumstances which would authorize the holding him bound as maker, failed to make out their case. The judgment must, therefore, be reversed, and the cause remanded for a new trial.

Judgment reyersed.  