
    Winn Twitty ads. Administrator of William Todd.
    The endorser of an instrument for tlie delivery of whiskey, is not liable to an action on the ground of the insolvency of the maker, without express stipulation, 
    
    The endorsement of such an instrument is only a transfer of the interest of the endorser.
    This was an action of assumpsit by the plaintiff, as endorsee, against the defendant, as endorser of the following instrument: “January 15,1813. Eleven months after date, I promise to pay Winn Twitty, or order, one hundred gallons of whiskey, for value received.” Signed, “John Weaver.” The endorsement was in the following words: “ I endorse the within note to William Todd, for value received, 16th December, 1813.” Signed, “ Winn Twitty.” The declaration contained five counts.
    *lst. OR the endorsement, in the usual form.
    2d. For money had and received.
    3d. For a horse sold,
    dth. For a mare sold.
    5th. For money laid out and expended.
    The handwriting of the maker of the note, and of the endorser, was proved. The plaintiff then called a witness, who swore that he had called upon the defendant for payment, who said the plaintiff must not be uneasy — that the defendant would see the money paid. The said witness said Weaver was insolvent. Some further proof was given of the insolvency of Weaver, and some proof of the consideration of the endorsement, and the plaintiff closed his testimony.
    The defendant then moved for a nonsuit, which the court refused, and after the introduction of some proof, on the part of the defendant, the plaintiff obtained a verdict.
    The case was tried before Mr. Justice Johnson, at Lancaster, Fall Term, 1818.
    The defendant now moved for a nonsuit and a new trial on several grounds, which it is unnecessary to state.
    
      
      
         See Peay v. Pickett, ante, 254. Looney v. Pinckston, 1 Tennessee Rep. 384. R. 7 Rich. 12.
    
   The opinion of the Court was delivered by

Cheves, J.

The only question which I deem necessary to consider, in this case, is, whether an action can be maintained on an instrument ' of this nature, against the endorser, on the ground of the insolvency of the maker.

The instrument is nothing more than an engagement to deliver, at the time therein mentioned, 100 gallons of whiskey, and the endorsement nothing more than a transfer of the interest to the endorser. It contains no express, and embraces no implied, warranty of the solvency of the maker. Since the case of Bay v. Freazer, (1 Bay, 66,) the question therein determined came before this Court in the case of Robert Walker v. Scott, decided in Charleston, and it,'was then determined,* that, on an assigned, bond no action lay against the assignor, on the ground of the insolvency of the obligor. That the assignment contained no guarantee of the payment, unless that guarantee was express. This case depends upon the same principle, but it is much stronger. That was a money transaction, and bore, in that respect at least, some analogy to promissory notes for the payment of money.

I am, therefore, of opinion, that a nonsuit ought to be granted.

Colcock and Nott, JJ., concurred.

Williams, for the motion. Miller and Massey, contra.

Johnson, J.

I concur in this opinion. It was decided on the authority of the case of Bay v. Freazer. It had escaped me that the doctrine had been overruled, in the late case in Charleston, referred to. It cannot be otherwise, as long as the decisions of this Court depend on memory.

Gantt, J., dissented. 
      
       2 N. & McC. 28S, note
     