
    William White versus John H. Howland.
    A promissory note was made payable to A B, or order, on demand: on the back of the note was an endorsement of even date with the note, “ For value received, we, jointly and severally, undertake to pay the money within mentioned to the said A B.” It was holden that the endorsers were answerable as original promisors.
    Case upon the following note, viz.: “New Bedford, April 19, 1806. For value received, I promise to pay William, White, or order, the sum of two hundred and fifty dollars on demand, with interest till paid. As witness my hand, Nathan Taber.” On the back of the note was the following endorsement, viz.: “ April 19, 1806. For value received, we, jointly and severally, undertake to pay the money within mentioned to the said William White.” “ Signed, John Coggeshall, Jun., John H. Howland.”
    
    The declaration contained several counts, one of which was as upon a promissory note signed by the defendant alone.
    
      The action was tried upon the general issue of non assumpsit, before Parker, J., at the sittings here after the last October term.
    It was proved, at the trial, that the amount specified in the note was advanced, on loan, by the plaintiff to Taber, * on his agreeing to give his note, with two endorsers ; that the note in suit was made with that intent, but was by mistake made payable to White, instead of Coggeshall, the first endorser ; that the defendant objected to putting his name on the note, because it was not properly drawn as an endorsed note, and because no time of payment was limited, but that he nevertheless put his name upon it.
    The defendant contended that he ought to be treated as the endorser of a negotiable note ; and that, as there was no evidence of a seasonable demand on Taber, and of notice to him, he was not by law holden. These objections were overruled by the judge ; but he reserved the question, as also whether, upon either of the counts, the verdict, which was for the plaintiff, could be maintained. Taber, the promisor, was solvent at the date of the note, and continued so until March, 1810, when he failed, and has since been insolvent.
    
      B. Whitman,
    
    for the defendant, contended that the note did not support any count in the declaration. [Parsons, C. J. Why does it not maintain the count as upon the defendant’s several note?] That cannot be, because it is plain, from the whole transaction, that the defendant was one of two joint sureties, and undertook only in case of Taber's failure.
    The endorsement of the defendant’s name on the back of the note must be taken with reference to the intent of the parties to it. It was in form a note payable by Taber to White or his order. But the case finds that it was intended to have been made payable to Coggeshall, and by him endorsed to Howland, and by Howland to the plaintiff. Had no mistake been made, it is very clear that the defendant would not have been answerable, but after a demand on the promisor, and seasonable notice to the endorsers. Now, the engagement of the defendant can by no fair construction be carried further than that of an endorser in common form.
    Such, at any rate, is the general * understanding in the country, respecting endorsements of this kind ; such was, undoubtedly, the understanding of these parties at the time of the contract; and such, it is humbly insisted, should be the judgment of law upon it.
    
      Sproat for the plaintiff.
   Curia.

It is probable that the parties to this noté contemplated that the note should have been1 made, as the defendant’s counsel has suggested. But the case finds that this defendant knew, before he put his name upon it, that it was not so made; and he objected to signing it for that reason. From this it should spem that he was aware that the contract was' not so favorable to him, as if he had merely endorsed a note in the usual mode. The defendant’s counsel objects that there is no count in the declaration, to which the note in evidence can apply. But we are all satisfied that this case is within the reason of Hunt vs. Adams, and that the effect of the defendant’s signature is the same as if he had subscribed the note on the face of it as a surety. He is then answerable, as an original promisor, equally with Taber; and the count in the declaration, which charges him as a several original promisor, is supported by the note in its actual form, 
      
       5 Mass. Rep. 358.
     
      
      
         [Moles vs. Bird, 11 Mass. Rep. 436. — Sumner vs. Gay, 4 Pick. 312. — Josselyn vs. Ames, 3 Mass. Rep. 274. — But see Tenney vs. Prince, 4 Pick. 385. — Burchard vs Bartlett, 14 Mass. Rep. 279. — Carver vs Warren, 5 Mass. Rep. 546. — Brush vs. Administrator of Reeves, 3 Johns. Rep. 439. — Jackson vs. Richards, 2 Caines's Rep. 345.
      — Hodgkins vs. Bond, 1 N. H. Rep. 284. — Palmer vs. Grant, 4 Con. Rep. 389 — Tillman vs. Wheeler, 17 Johns. Rep. 326. — Huntington vs. Harvey, 4 Con. Rep 124. — Hill vs Lewis, 1 Salk. 132. — Governor, &c., Bank of England vs. Newman, 1 L. Raym. 442.
      — Bailey on Bills, c. 5, § 1. — Chitty on Bills, 142. — Thomson on Bills, 101—285. — Waynam vs. Bend, 1 Camp. 175. — The distinction between White vs. Howland, Moles vs. Bird, Burchard vs. Bartlett, Sumner vs. Gay, and Tenney vs. Prince, is, certainly, shadowy. The former cases, however, were probably decided upon the principle that such a construction ought to be given to the endorsement ut magis valeat quam pereat. But would this justify a construction directly opposed to the plain intent of the parties ? Is it not obvious that, if the endorser intended to become liable as maker, he would have subscribed on the face of the note ? Why not construe it, then, as the parties understood it, — an engagement to be liable, as an endorser in ordinary cases would be, and not otherwise ? Or hold it to be a nullity, rather than make a contract for the parties, which they never entered into ? — Ed.]
     