
    James Birchard, Jun., versus Joshua W. Bartlet.
    No action lies against one who had endorsed his name on a negotiable promissory note between other parties.
    This was an action of the case, in which the plaintiff declares on a promissory note, dated September 21, 1807, signed by one Benoni Webb, and payable to one Ebenezer Bartlet, or his order, on the 1st of April, 1803, with interest; and alleges that the defendant afterwards, being the owner of the said note, and being in possession of the same, by his endorsement thereon, acknowledged that he had sold and delivered the said note to the plaintiff, for value received, and promised him that the contents thereof, should be paid to him according to its tenor; and that, if it should not be so paid * by Webb, he, the defendant, would pay the said contents to the plaintiff on demand; that Webb never paid the same, nor the defendant, though he had notice, &c., and was requested, &c. The declaration also contained the usual money counts.
    In a case stated for the opinion of the Court, it was agreed that the note mentioned in the. declaration was executed by Webb, and that it was endorsed in blank to the plaintiff, by the defendant, for a valuable and adequate consideration. At the time the note fell due, the plaintiff and defendant lived within four miles of each other in this county. Before the note became due, the said Webb removed into the state of New York, had ever since resided there, and left no property within this commonwealth; both the parties to this action knowing where he resided at the time the note became due, and he being reputed to be a man of property. No demand was made by the plaintiff on Webb, nor any notice of non-payment given to the defendant, until about six weeks after the note fell due.
    Judgment was to be entered by default or nonsuit, as the opinion of the Court should be on the foregoing statement.
    
      [Note. — Before the note was produced, the plaintiff had written over the defendant’s name, endorsed on the note, an undertaking and promise conformed to the allegations in the declaration.]
    No argument was had.
   Per Curiam.

This case does not come within any of the decisions which have been made by this Court upon the subject of written contracts. The defendant, whose name is placed on the back of the note, was no party to it; nor does it appear, from the facts agreed, how he became possessed of it.

The note is in its form negotiable; but the payee never negotiated it; at least it does not appear that he endorsed it. The defendant cannot be considered as a surety or original promisor to the plaintiff, because the plaintiff was not the payee of the note. If he can be made liable in any way to the plaintift * it must be on account of some special contract, of which there is no evidence resulting from the facts agreed in the statement. It may be that, holding the note under a delivery from the payee, he delivered it to the plaintiff with his consent that the plaintiff should receive the money due on it. There appears no evidence of any contract whatever with the plaintiff by the defendant. If the plaintiff can produce evidence,, that the defendant undertook to guaranty the payment of this note to him, the statement of facts may be discharged, and the parties go to trial. But if no other facts exist than those contained in the statement, the plaintiff must become nonsuit, 
      
      
         [Sampson vs. Thomson, 3 Met. 275. — Pierce vs. Mann, 17 Pick. 244. — Sumner vs. Gay, 4 Pick. 312. — Moies vs. Bird, 11 Mass. Rep. 440, and note.— White vs Howland, 9 Mass. Rep. 314. — Baker vs. Briggs, 8 Pick. 122.— Tenney vs. Prince, 4 Pick. 385. — Scalenny vs. Hungerford, 2 Hill, N. Y. R. 80. — Dean vs. Hall, 17 Wend. 214. — It would seem to be clear from the authorities that-the defendant was liable t<i the plaintiff upon the endorsement. Bayley on Bills, 5th Lond. ed. 129—134. — Tassell vs. Lewis, 1 Lord R. 743. —• Bank of England vs. Newman, Ibid. 442.—Nichol son vs. Sedgwick, Ibid. 180. — Ed.]
     