
    George Little, Executor, versus Ezra Weston.
    Collateral undertaking.
    Assumpsit on a promissory note to the plaintiff’s testator.
    The declaration stated that, whereas the said Ezra Weston, and one George Keith, Jun., who has since been declared a bankrupt, and received his certificate of discharge, pursuant to the statute of the- United States of America in such case made and provided, on-, at-, by their promissory note, «fee.
    Plea, that the defendant, with the said George, never promised, &c.
    *The note offered in evidence was as follows, viz., “For value received, I promise to pay Capt. Amos Rogers, or ordér, three hundred dollars, in six months from date, with interest until paid; as witness my hand. April 29, 1801.
    
      George Keith, Jun.
    
    
      Ezra Weston, surety.”
    
      B. Whitman, for the defendant,
    conceded that the note was signed by Weston, but he objected to its going in evidence to the jury, because, as he contended, it was evidence of a several demand only, a' demand against Weston as the surety of Keith — of a collateral undertaking by Weston, and not of his joint undertaking with Keith, as alleged in the declaration. This, he insisted, was evident from the note itself, which was in the singular number. It appeared that Keith was the actual debtor, the original promisor, and that the defendant’s undertaking was subsequent, and, by his signing as surety only, it was clear that he did not mean to bind himself jointly with Keith. Upon inspecting the note, it would, appear that the signature of the defendant was not made at the time the note was signed by Keith, as was obvious from the color of the ink in the signature of the defendant, which was very different from that of Keith’s signature and the body of the note, in both of which the ink was the same.
    
      Sedgwick and Sewall, justices, said, that, as at present advised, they thought the engagement of the defendant was collateral only, for the reasons given by Whitman, and, therefore, the note ought not to go in evidence to the jury.
    
      
       For aught appears upon the note, the defendant was responsible in the same way and manner as Keith, the bankrupt. The undertaking of Weston was direct, and not collateral, unless the contrary is implied by the word “ surety.” Now that word of itself seems to have no such meaning, and the editor is not aware that such a construction has ever been given to it in recognizances, bonds, and other instruments, where it is frequently used, and where, if the undertaking is meant to be several, express words to that effect are always introduced. It is usually added to show that the consideration did not pass to the person named as surety, and to give him a remedy against the principal debtor.
      The editor has reason to believe that Sedgwick, J., afterwards changed the opinion here given by him. In a case similar to the present, except that the word “ surety ” was not annexed to either signature, Lord Kenyon held the note joint and several. Marsh vs. Ward, Peake’s JV. P., case 130; and in a case precisely similar to that last mentioned, the same decision was made by this Court; post, vol. vii. p. 58, Hemmenway vs. Stone.
      
    
   Strong, J.

I think, from the words of the note, that the defendant is to be considered as a joint promisor. If the note had been written, We promise, «fee., there would be no doubt. Then what is this note? J promise — that is, I, George Keith, Jun.¡ and I, Ezra Weston, promise — which seems to be * the same thing as, We promise. The note is signed in the usual place, has only one date, and it is signed in the common mode. The word surety is added (as is frequently the case) merely for the benefit of the surety, and that it may appear he is not the real debtor. I am clear that this is a joint note. But a majority of the Court being of a different opinion, it is not admitted in evidence.

Parsons for the plaintiff.

The plaintiff had leave to amend his declaration on the common rule.  