
    A. Guynemer vs. David Lopez.
    
      Promissory Note — Indorser—Pelease.
    The indorser of a note, while it was yet in the hands of the indorsee, released the drawer “ from all claims, causes of action in law or equity,” &c., and shortly afterwards paid the indorsee and took the note back: Held, that the release covered the indorser’s contingent right to the note and extinguished it.
    BEFORE WARDLAW, J./AT CHARLESTON, APRIL TERM, 1857.
    A note for four hundred and seventy-five dollars, dated 5th February, 1855, in favor of-and indorsed by L. T. Potter, was admitted. It was also admitted that the defendant was indebted to said Potter for goods sold, one hundred dollars— upon a note due 2d April, 1855, four hundred and twenty-five dollars.
    The note was due (sixty days after date) on the 9th April, 1855, and had been taken up by L. T. Potter, (on 11th of April,) after it became due, the same having been discounted in the Planters’ and Mechanics’ Bank. It was also admitted that the note had been transferred to the present plaintiff after the 11th April, and for valuable consideration. The defendant introduced a general deed of assignment for the benefit of creditors from Lopez to trustees,” dated 6th March, 1855, which, after conveying all his property in trust in the first place, to pay all expenses and charges of the trustees, and “ from and after the payment of the same, then to pay and apply the whole of the moneys remaining, ratably and in proportion to their respective debts, to and among those creditors only of the said David Lopez, to whom he is indebted, as maker of any promissory note, or as. principal obligor upon any bond, or as tbe principal debtor upon any open account, and who shall, on or before two o’clock, p. m. Tuesday, 10th day of April next, signify their acceptance of this assignment, and execute a release to the said David Lopez of their respective demands.”
    A general release was also introduced, of various corporations and parties, creditors of David Lopez, in which they state “that they do severally, and not one for the other, absolutely release and discharge the said Lopez from all claims-, causes of action in law or equity,” &c.
    The release was signed and sealed by .L. T. Potter, per attorney, and by about forty other individuals, creditors generally.
    The following special releases were signed. By the Bank of the State, as follows: — The President and Directors of the Bank of the State of South Carolina, (as holders of sundry notes, of which David Lopez is maker and not otherwise,) per C. M. Furman, President.
    The South-Western Railroad Bank and the People’s Bank, by their Presidents, signed releases subject to the same limitations.
    The Planters’ and Mechanics’ Bank signed the release twice. First in the following words, “ The P. and M. Bank on note of D. Lopez, endorsed by J. F. Church, per C. Gr. Mem-minger.” The other, as follows: “The Planters’ and Mechanics’ Bank of So. Ca. on note of David Lopez, endorsed P. M. Cohen & Co., dated 3d January, 1855, at sixty days, two hundred and fifteen dollars, and also for note of David Lopez, at sixty days, endorsed by W. J. Bennett, for four hundred and seventy-five dollars.”
    The plaintiff in reply, proved a demand on the trustees, made by Potter, after he had taken the note from Bank, and before he transferred it to plaintiff', and the refusal of the trustees to pay any dividends on the note in suit, upon tbe ground tbat tbe Bank had not released upon tbis note, and tbat L. T. Potter could not, be not being a creditor upon tbe note on lOtb April.
    Tbe report of bis Honor, tbe presiding Judge, is as follows:
    
      “ Tbe foregoing statement, prepared by counsel, is correct.
    “ Tbe case baying been submitted to me as one turning on a point of law, I agreed with 'tbe defendant, and ordered a non-suit, with leave for plaintiff to move to set it aside.
    “I considered tbe release of tbe Bank unimportant — for tbat I thought was confined to the debts specified in it. But tbe release of Potter and bis subsequent payment and application for a dividend on tbis note, I thought should be so connected as to make tbe contingent liability, which tbe debtor was under to him, at tbe execution of tbe release, an actual, subsisting debt. In tbis view Potter was tbe creditor, and tbe bank was bis agent for collection.”
    Tbe plaintiff appealed and now moved tbis Court to set aside tbe non-suit upon the grounds:
    1. Because it is respectfully submitted tbat bis Honor erred in ruling tbat tbe release executed by L. T. Potter, and tbe special release of tbe Planters’ and Mechanics’ Bank, operated as a full release to tbe defendant, Lopez, of all claim upon tbe note in suit.
    2. Because it is respectfully submitted, tbat bis Honor erred in ruling tbat tbe Planters’ and Mechanics’ Bank in releasing all claim as to tbe' notes specially named iii tbe release which it signed, necessarily released also all claim as to tbe note in suit.
    3. Because it is respectfully submitted, tbat tbe Planters’ and Mechanics’ Bank did not release the note in suit by its special release, and that L. T. Potter could not have done so on tbe 10th. April, 1855.
    
      Mowry and Shaffer, for appellant.
    Campbell, contra.
   The opinion of the Court was delivered by

Wardlaw, J.

This case has been submitted almost without argument, certainly without the citation at the bar of any authority on either side. The Court has examined it with as much care as time would permit, and with some division, sustains the ruling made on the circuit. Eor authority reference is made to the cases of Coe vs. Hutton, 1 Serg. & R. 408; Cuyler vs. Cuyler, 2 Johns. 186; Pierce vs. Parker, 4 Met., 90; Reed vs. Tarbell, 4 Met., 95. No doubt is entertained that the indorser of a note existing in the hands of a holder, may by apt words release all right of action which by subsequent payment of the note such indorser might acquire against the maker. The doubt is felt only as to the construction of the release made by Potter, the indorser in this case. Does it so plainly include his inchoate right in the note of Lopez indorsed by him, that without intent found by the jury, the Court should say that such right is barred ? A majority of us think that the words “ claims and causes of action in law or equity” are so comprehensive as to cover an indorser’s contingent demand against a maker; and that the intent must be collected from the paper, and could not be the subject of extrinsic evidence.

Under this view, the right of the present plaintiff, derived from Potter after the release, was barred. Potter must be considered at the time of his action, as a creditor whose cause of action had not yet become complete; and the subsequent completion of it by bis payment to tbe bank, must have relation back to the release so as to constitute the contingent liability of the maker to him a debt by promissory note. The assignment, although it speaks of ratable division among creditors, expresses a proportion to their respective debts,” by note, bond, &c., wherein the assignor is principal debtor; and is just as if it had directed a division amongst such notes, bonds, &c., according to their several amounts. The bank, holder of the note now in question, could not have been expected to release the indorser by releasing the maker; and it would be contrary to what seems the intention of the assignment to hold that the sole indorser could not by acceptance and release, entitle this note to a share of the assets to be distributed, without previous payment of the note in full.

The motion is dismissed.

■WITHERS, G-loyee, and Moteo, JJ,, concurred..

Motion dismissed.  