
    P. G. S. Perkins et al. v. S. P. Ament, for the use of, &c.
    Bilis and Notes. JSole executed to raise money. Surety. If a party become surety on a note with the understanding that it shall be passed to a particular individual, and to no- one else, he is not liable on said note unless passed to that person. But if he signed as surety with the general purpose to enable the principal to raise money on the note, without limiting him to the person to whom he should pass it, he would be liable, -although the note was passed to another than the payee, and the holder thereof coulcl maintain a suit in the name of the payee for his use.
    PROM WILLIAMSON.
    Verdict and judgment for plaintiff, at the March Term, 1858, Baxter, J. presiding. The defendants appealed.
    John Marshall, for the plaintiffs in error.
    It is insisted that' the Circnit Judge should have granted a new trial, because the charge was erroneous in both branches of the charge.
    In the first branch of the charge no weight 'is given to the fact that the note was payable to the order of S. P. Ament; and to defeat the plaintiff’s action, notwithstanding the form, of the note, the burden of further proof is thrown on the defendant, to- show the further fact that it was his intention that the note should be passed to Ament, and no one else.
    The second branch of the charge intensifies the same idea. It throws the onus of proof on the defendant, of the , further fact that he limited him to the person to whom he should pass the note, and says that the expectation of him and Bryan both, that Ament would take the note and pay the' money would be insufficient to establish this further fact.
    The expression in the charge, the general purpose of Perkins, to enable Bryan to raise money on the note, is too vague to relieve the charge from the remarks made, and might well have been understood by the jury to have meant nothing more than the purpose of raising the money on the note from Ament.
    The charge, if not erroneous in other respects, is calculated to mislead the jury, and probably did mislead the jury, in finding their verdict; and to this extent is erroneous. It is insisted, upon the hypothesis that the charge of the Circuit Judge is free from all exceptions, that there is not any evidence in the record upon which the verdict can rest, showing, or tending to show, that Perkins consented or intended that .the note should be used by Bryan, in receiving the money from any other person than Ament. A fair view of Bryan’s testimony shows directly the contrary.
    It is true that he received the $50 from Greenfield upon fraudulent representations: but Greenfield by no means became the holder of the note in due course of trade. - - • •
    
      It is contended that, on this general ground, there should he a new trial.
    FOSTER, for the defendant in error.
    The defendant in error now insists that there was no error in the proceedings helow, and judgment ought to he affirmed.
    1. Because the charge of the Court, if erroneous, was in favor of the plaintiffs ,in error, of which error, if there he -any, the defendant in error cannot complain;
    2. Because there was no error in the admission to the jury of Bryan’s deposition, as his interest was indifferent; for if Perkins pays the money, he, Bryan, is hound to pay to Perkins.
    3. Because the law implies a good and valuable consideration in all promissory notes, between the original parties thereto and those who claim by endorsement or otherwise. Story on Promissory Notes, ch. 5, pp. 199-203.
    4. Because, as Perkins signed the note, and gave it up to Bryan, and the note being negotiable, and Greenfield having upon- the faith of that note, in the due course of trade, bona fide, and without notice, advanced the money to Bryan, Perkins is, by all rules of commercial law, liable for the same to the holder thereof.
    5. Because any person is considered a bona fide holder, for value, of notes or hills, when he has advanced money or other value for them, or taken as collateral security, or has a lien on them. And from the proof in this cause, it is most apparent that Greenfield was a bona fide holder of the note for money advanced, and, as such, has the right to enforce its payment hy suit, in the name of the payee, for Ms use. Story on Promissory Notes, p. 215. And it -is immaterial whether Ament knew anything of the suit, or knew anything of the transaction, for a Court of Chancery, if necessary, would have interposed to protect Greenfield.
    It is insisted hy the defendant in error that there is no error of fact in the record, and that the charge of the Court below was in favor of Perkins and against the defendant in error, as we conceive the law to be; and, therefore, this Court will not reverse, but affirm the judgment.
   WRIGHT, J.,

delivered the opinion of the Court.

There is no error in this judgment. The proof makes it clear that T. L. Bry.an, being desirous of raising money, made the bill single upon which the suit was instituted, and procured Perkins to execute and sign the same as maker with him — as his security, and for his accommodation.

The bill single, thus executed, was delivered by Perkins to Bryan. Tha.t this was done to enable the latter to sell it, and raise money upon it upon the faith of the name of the former, there can be no doubt.

It was, to be sure, made payable to Ament, because it was supposed — and, perhaps, they had good reasons so to think — that he would advance the money upon it. But there is no foundation for the belief that Perkins placed Bryan under any restrictions as to the use to be made of it, or that it was his intention that it should be passed to Ament, and no one else.

Bryan thus having the' possession of this note, passed it to Greenfield, and received of him, upon it, the sum of $50; and he has instituted this suit in the name of Ament, to his use, against Perkins, upon the note, to recover the amount for which it was given.

The Circuit Judge charged the jury, that if Perkins became surety upon the note, with the intention that it should be passed to Ament and no one else,, the plaintiff would not be entitled to recover. But if he signed as surety, with a general purpose to enable Bryan to raise money on the note, without limiting him to the person to whom he should pass it, then the plaintiff would be entitled to recover, although at the time defendant signed the note it was the' expectation of him and Bryan both, that the note was to be passed to Ament, and the money obtained from him.

This charge is, we think, sustained by the principles laid down in Kimbro v. Lythe, 10 Yerg., 417, and the authorities there cited.

Judge Reese, in delivering the opinion of the Court, says: “ The Chancellor, to sustain the principle determined in this case, refers to the cases of The Bank of Rutland v. Buck, 5 Wend., 66, and The Bank of Chenango v. Hyae, 4 Cow. Rep., 566. In the former of these cases the note was made by Spear and Everett, and signed by Buck, as surety, payable to the bank. It was made to enable Spear and Everett to raise money for their own accommodation. Upon its being offered at the bank for discount, the bank refused to discount it; and it was subsequently, and before it was due, delivered over to House and others, as collateral security for the payment of a judgment in their favor against Spear and Everett. The suit was brought in the name of the bank, but for the use of House and others. It was objected that the object for which the note was made being to raise money from the bank, and the object having failed, it ought to have been returned to the surety. It was admitted, that if the Bank had refused to advance the money, and a third person had done so, as in the case of the The Bank of Chenango v. Hyde, 4 Cow. Rep., 567, the surety would have been bound, as the substantial object, the raising of money, would have been obtained. It was further objected that the note was not receieved in the ordinary course of commercial business, and so as to be governed by the law merchant. But Chief Justice Savage, delivering the opinion of the Court, says: I can see no well-founded objection to a recovery upon this note. It was drawn for the purpose of raising money for the accommodation of the two makers, Spear and Everett, who have had the benefit of it.”

It is the same thing as if Perkins had expressly assented to the sale of the note to Greenfield.' And the fact that it was payable to the order of Ament, and never endorsed or sanctioned by him, can make no difference.

Perkins must be regarded as having assented to the use of Ament’s name for the benefit of Greenfield, in order to make the note available against him if a suit became necessary..

We have been unable to discover that the charge of the Circuit Judge was open to the criticism made upon it, and think the verdict of the jury well warranted by the proof.

We therefore affirm the judgment.  