
    Simeon Taylor versus John Binney.
    Where the payee of a promissory note, payable to order, and endorsed thereon, “ I guaranty the payment of the within note in eighteen months, if it cannot be collected of the promisor before that time; ” the holder, to recover against such endorser, must prove a title to the note in himself.
    The plaintiff declares upon a promissory note, dated April 26th, 1805, subscribed by—Fales, and payable to the defendant or his order, in six months with interest; and avers an endorsement and guaranty thereof by the defendant to the plaintiff, and due intelli gence to collect the same of the promisor, and notice to the defendant of the promisor’s failure of payment, &c.
    At the trial, which was had before Sewall, J., upon the general issue, the plaintiff gave in evidence the note declared on, and an endorsement made and signed by the defendant in these words: — “ Dec. 13th, 1805. I guaranty the payment of the within note in eighteen months, provided it cannot be collected of the promisor before that time.” There was also another endorsement upon the note in these words-—“April 15th, 1806, received one hundred dollars.” The plaintiff also gave in evidence an action commenced in his name against the said Fales, upon the note now declared on by a writ tested January 20th, 1807, and served the 28th of the same month ; also an execution tested September, 1807, [ * 480 ] upon a judgment recovered in that * suit, and a return upon the execution by a deputy sheriff for the county of Lincoln, dated 27th of November, 1807, that after diligent search for the body and property of the said Fales, finding neither in his precinct, he returned the execution in no part satisfied.
    The defendant then proved that in April, 1806, the note declarea on, with the endorsement thereon, was in the hands of Jacob Thomp~ son, who then commenced an action in his own name upon the said note, against the said Fales, upon which a quarter part of a sloop, of which Fales was master, was attached and holden by Will. Bell, a deputy sheriff, as the. property of the said Fales; and that the said Thompson afterwards withdrew the said suit, and relinquished the attachment, upon receiving from the said Fales the sum of one hundred dollars, then endorsed upon the said note, which sum was paid by Samuel Hastings, who purchased the said Fales’s quarter part of said sloop at the sum of four hundred dollars ; but upon some difficulty which occurred in the transfer, refused to advance more than a quarter part of the purchase money; and afterwards paid to the seamen belonging to the vessel two hundred and twenty-three dollars forty cents, and to the said Bell the sum of twenty dollars for expenses and costs of suit. The defendant also proved that the plaintiff was present at the transaction between Thompson and Fales, when the said suit and attachment were relinquished, and immediately received the note of the said Thompson; and there was no evidence of any consideration paid for the note by the plaintiff.
    Upon this evidence, the judge, who sat in the trial, directed a nonsuit, upon the ground, 1st. That the plaintiff had not proved a title in himself to recover upon the said guaranty; and, 2d. If he had proved such title, that the guaranty was discharged, and the defendant no longer liable upon it, after the said suit and attach ment were relinquished by the said Thompson, the former holder of the note; especially as the plaintiff was present at that [ * 481 ] transaction, *and fully informed of the state of the note, when it came to his hands. The nonsuit was entered, subject to the opinion of the Court upon the report of the judge, with liberty to the plaintiff to move for a new trial.
    
      Mellen and Foote for the plaintiff.
    
      
      Wilde for the defendant
   The action being continued nisi for advisement, the opinion of the Court was delivered in Suffolk, at an adjournment of the March term in that county, by

Sewall, J.

The plaintiff having been nonsuited, with liberty to move for a new trial, the report of the evidence, upon which the nonsuit was directed, has been considered by the Court.

In the argument upon the motion for a new trial, two questions have been discussed: whether the plaintiff has entitled himself to an action in his own name, upon the endorsement and guaranty of the defendant. And whether, if so entitled, the defendant is discharged of all responsibility upon his endorsement; considering the conduct of Thompson, the former holder, and of the plaintiff, respecting the collection of this note from Fales, the promiser.

The three justices present at the argument are agreed in deciding for the defendant upon the first question; and a decision of the second question has therefore been thought unnecessary.

It is an established rule, respecting the negotiation of bills of exchange and promissory notes, that a bill, or note payable to order, is transferable only by endorsement; and what is said of a transfer by delivery, after a blank endorsement, is not inconsistent with this rule, but when explained by the usage, is entirely conformable. The usage in this particular is, that after an endorsement in blank by the payee, or any subsequent endorser, it is competent for the holder of the bill or note to make himself the immediate endorsee, and to claim by the blank endorsement. And to maintain an action upon the bill or note, the holder completes the endorsement, by writing an assignment, or order * of payment to him- [ * 482 1 self over the name of the endorser; which in the usual course of business constitutes a blank endorsement.

In the case at bar, the plaintiff relies on an endorsement which is not blank in the form of it, but completed by the endorser himself. The note, with the words of the payee in his endorsement, are to be construed together as one written instrument. The special guaranty, expressed in that endorsement, is the whole ground upon which the present action against this defendant can be maintained; and the plaintiff does not rely upon any implied responsibility, resulting from an endorsement in the common form, if this endorsement, in the whole tenor of it, may be construed to be, not only a guaranty, but also a transfer and assignment of the note, which seems to have been the intention and understanding of the parties, the principal objection to the title of the plaintiff remains in force. There is no name inserted of the party to be entitled by the endorsement; and if this omission might be supplied by extraneous evidence, the facts proved in the case render it certain that the present plaintiff was not the party to the guaranty or assignment, when it was made; and no evidence has been offered of any subsequent privity or assent between him and the defendant.

But the argument of the plaintiff is, that the omission of the name of the endorsee is evidence of an intention in the defendant and the other immediate party, whoever he was, to give an unlimited currency to this note, and to accompany it with the collateral promise of the payee; according to the usage and construction in ordinary cases of blank endorsements upon negotiable bills or notes. But in the case at bar there is no necessary implication to this effect, arising from the circumstance of the omission of the name of the endorsee or party to the guaranty. This may have been a mistake or accident. The negotiation was not upon the credit of the original promisor, but wholly upon the final responsi- ¡ *483 ] bility of the endorser; the ability of the promisor, * considering the whole tenor of this endorsement, remaining at his risk ; and the assignment seems to be rather a confidence for the collection of the note, than an absolute transfer of the property. The guaranty taken independently of the note, is a promise not negotiable, being conditional, and not absolute ; and connected with it, the supposition is altogether unreasonable and improbable, of an unlimited currency intended for the note itself at the risk of the endorser.

The plaintiff fails, therefore, in the evidence necessary to his title, even admitting the usage cited respecting notes endorsed in blank to have any application, where the endorsement is full and restrictive, and not at all in the form of a blank endorsement, unless in the mere circumstance of omitting the name of the endorsee.

The nonsuit is confirmed, and judgment is to be entered upon it for the defendant. 
      
      
        Chitty on Bills, 58, 59,101,106,117. — Doug. 633, Peacock vs. Rhodes Al. Johns. N. Y. Rep. 143, Cock vs. Fellows. —4 D. & E. 28, Mead vs. Young.
      
     
      
      
        Chitty, 88.— Com. Fig. Title Merchant, F. 16. — 8 Mod. Rep. 363, Moris, vs. Lee.
      
     