
    William Small v. Thomas M. Sloan.
    A guaranty, before the Code, was assignable, so as to give an equitable title to the assignee, although he could not sue thereon in his own name; but, under the Code, it is not merely assignable, but the action thereon must be brought in the name of the assignee, as the real party in interest.
    There is no presumption and no rule of law that can warrant a Court or jury to infer, from the mere fact that the body of an instrument or endorsement is not in the hand-writing of the signer, that it has been altered, or that it did not appear in the same form when the signature was made.
    "When circumstances of suspicion are proved, the party claiming under the paper may, properly, be required to satisfy a jury that it was signed in the form in which it appears; but in all other cases, the plaintiff is bound to prove the signature alone, which is prima, facie evidence that the defendant contracted the obligation that the paper imports.
    Judgment for plaintift, upon verdict, with costs.
    (Before Duer, Slosson, and Woodruff, J.J.)
    Heard, April 8th;
    decided, June 13th, 1857.
    This action, comes before the Court on a motion, by the plaintiff, for judgment on a verdict in his favor, taken subject to the opinion of the Court at General Term.
    This action was brought to recover the balance alleged to be due to the plaintiff, as assignee of Small, Williams & Co., and payable upon three notes, and the defendant’s guarantee of two thereof. That is to say:
    A note for sixty-five dollars, made by the defendant, payable to the order of the said firm of Small, Williams & Co., and by them endorsed to the plaintiff. (In respect to this note there is no controversy; though if the payments, which are admitted, and the amounts otherwise realized, were to be applied to this note only, the plaintiff could recover nothing.)
    A note dated June 22d, 1843, made by B. W. Green, for fifty dollars, payable five days after date, to the order of the defendant.
    And a note, or due bill, made by the said Green, dated May 30th, 1845, in these terms: “Due Mr. Thomas M. Sloan order, two hundred and thirty-five dollars, payable on demand, for value received.”
    Upon the back of each of the last mentioned two notes are endorsed the following words:
    “ For value received, I hereby guarantee the payment of the within, July 3, 1843.
    Thos. M. Sloan.”
    The complaint avers the making and delivery of the above guarantee by the defendant, and the delivery of the notes so guaranteed to Small, Williams & Go.; that neither Green nor the defendant has paid the same; that Small, Williams & Co. have transferred the same to the plaintiff. But the complaint does not aver that payment of either the said note or due bill has been demanded from the maker thereof.
    The answer, after setting out a payment on the note made by the defendant, denies that he ever executed and delivered any such guaranties, as are set forth in t^e complaint, upon the notes of Green.
    The action was tried before Mr. Justice Duer, and a jury, in January, 1854.
    Upon the trial the plaintiff produced the notes of Green, and proved the signature of the defendant to the guaranties endorsed thereon; and the witness, on cross-examination, testified that the writing of the guaranties so endorsed was not that of the defendant, but the signatures only. Upon this evidence and proof of the interest upon the several notes, the plaintiff rested.
    The defendant moved for a non-suit, which was denied, and the defendant excepted to the decision.
    Thereupon, by direction of the presiding Justice, the jury found a verdict for the plaintiff, for $364 94, subject to the opinion of the Court," on a case to be made, with liberty to, either party to turn such case into a bill of exceptions.
    
      W. M. Evarts, in moving for judgment for the plaintiff upon the verdict, argued as follows:
    The proof of the signature of a party to an instrument is prima facie evidence that the instrument written over it is the act of the party; and this primd facie evidence will stand as proof unless the defendant can rebut it by showing, from the appearance of the instrument itself, or otherwise, that it has. been altered.
    There is nothing in the appearance of the notes in question from which an alteration or addition to the endorsement can be presumed.—Glossop v. Jacob, 4 Campb. 227.
    ■ The general presumption of innocence is sufficient to outweigh any conjectures that might be drawn from the appearance of the guaranties, and the facility of inserting them over a blank endorsement.—Best on Presumptions, p. 58.
    Fraud or forgery is not to be presumed when any other expiar nation is consistent with the facts.
    Endorsers enjoy the same security as all other parties to instruments, in the fact that fraudulent and felonious tampering with instruments after execution, is not to be anticipated.
    But if the rule contended for by the defendant prevails, the holders of commercial paper will be in great jeopardy, seldom having the means of proving more than the signature,
    
      In the numerous cases where the burden has been held to be upon the party offering paper to explain its condition, some alteration, honest or fraudulent, was manifest and undisputed.
    
      Knight v. Clements, 8 Ad, & El. 215; Henman v. Dickinson, 5 Bingh. 183; Cariss v. Tattersall, 2 Man. & G. 890.
    But where there is no alteration manifest upon inspection, or where the fact is doubtful, the burden is upon the defendant. 1 Saund. Ev. & Pl. 78.
    
      C. W. Sandford, for the defendant,
    made and argued tire points stated in the opinion of the Court.
   By the Court. Woodruff, J.

There is nothing in the case, as made up for the hearing at the General Term, which shows what questions of law were raised on the trial herein, or the grounds upon which the motion for a nonsuit was urged.

The questions, which the counsel for the defendant has presented for our consideration, are shown by his points submitted, in the following words:

“1. The defendant was an endorser, over whose name the plaintiff wrote a guarantee, He was entitled to all the rights of an endorser,”

“ 2. No proof of demand of the notes upon the drawer was made, and no notice of non-payment.”

“ 3. If the endorsement was a guarantee, it was not assignable.”

“ 4. The complaint should have been dismissed.”

Nothing was suggested on the argument in support of the fourth proposition, except what was said by insisting upon the other three, from which the fourth was made an inference.

As to the assignability of the guarantee, it is sufficient to say, that although a special guarantee was not negotiable, and an assignment would not authorize a suit in the name of the assignee, before the Code—(and that is all that was decided on this point in the case cited; Lamourieux v. Hewit, 5 Wend. 307.) Yet an assignment would always pass the equitable title, and the guarantee could be enforced for the benefit of the assignee, but in the name of the person to whom the guarantee was made.

Now, as actions must be prosecuted in the name of the real party in interest, and as the fact of actual assignment to the plaintiff is alleged in the complaint, and not denied in the answer, the objection fails.

. The 1st and 2d points appear to proceed upon one ground, and were so argued by the defendant’s counsel, viz.:

Inasmuch as nothing appears upon the back of the two notes, in the'handwriting of the defendant, except his signature, it-is to be presumed that when he wrote his name, nothing else had been written thereon, i. e. he endorsed the notes in blank, and is, therefore, to, be regarded as an endorser, and as-such cannot be charged without proof of demand of payment of the maker, and notice of non-payment to himself.

.. This claim calls upon us to, presume, that the plaintiff or his assignors have been guilty, of a fraud, if not of a forgery,, by writing over the defendant’s signature, acontract which he never made nor consented to;

We know of no such presumption as is here suggested, nor of any rule by which we can infer, or which warrants a jury in inferring, from the mere fact that the body of an instrument or endorsement is not in the handwriting of the signer, that it has been altered, or that it did not appear in its present form when the signature was made.

Where there is any evidence, however slight, that the endorsement was originally a blank endorsement, the circumstance that the writing is not that of the endorser, may properly have weight. And whenever there are circumstances of suspicion, the party claiming under the paper may properly be required to satisfy a jury,, that the paper was signed as it now appears. (See Mabee v. Sniffen, 2 E. D. Smith, 1.) But we have been referred to no authority, non are we aware of any principle upon" which we can say, that the plaintiff was bound to do more than produce the' endorsement, and prove the signature thereto. That" was prirad facie evidence, that the defendant assumed the obligation imported by it, as truly ás proving the maker’s signature to a promissory note, the body of which is ‘ not in his handwriting,. is prima facie evidence of his promise to pay the sum of money mentioned in it, and according to its tenor.

The defendant was not, therefore, entitled to all the rights of an. endorser, and as such, at liberty, to resist the claim on the ground of want of demand, and notice of non-payment.

It was not a commercial-endorsement entitling the endorser as such, to demand, protest, and notice.

If the point now taken can be construed to mean, that treating the endorsement on the back of the notes as a guarantee, there must still be a demand-before the defendant could-be charged, it must suffice to say, that no such point appears to have been taken at the trial, and the fact, set up in the answer, that Green, the maker, did, after the-notes were passed to the plaintiff, make a payment thereon, sufficiently indicates that he regarded them as a then present debt, and that he was in default in not paying the balance. .

The case was obviously tried, and defended, upon the idea that the plaintiff was bound to show that the signature of the defendant was not,- when written, a "blank endorsement, and that in the absence of such proof, he is entitled to be regarded, as a mere endorser; and with the rights of endorser, entitled to demand of payment, and notice of non-payment. This, we think, is not well founded.

. Judgment should be ordered for the plaintiff upon the verdict.

Ordered accordingly.  