
    
      Robert Cathcart vs. Jacob Gibson.
    
    The endorsers of an accommodation note for the benefit of the drawer are not liable as co-securities.
    An agreement, before endorsing, to be liable to each other as co-securities, would be binding.
    When, after protest, the second endorser agreed to pay half the note, and, jointly with the first, wrote a letter to the holder stating such agreement, and praying indulgence, which was granted,. Held, that the agreement was without consideration.
    A promise by the second to pay to the first endorser half the amount of the note, if the first endorser would pay the debt and the costs of a suit on the note against the second endorser, would be on sufficient consideration. Ut semble.
    
    
      Before EvaNS, J. at Fairfield, Fall Term, 1844.
    This was an action of assumpsit, by the first endorser, against the second, of an accommodation note for the benefit of the drawer, to recover one half of the amount of the note. The circumstances were as follows : one Rosborough drew a note for fifteen hundred dollars, negotiable at the Commercial Bank, dated 2d February, 1842, and due at sixty days. It was an accommodation note for the benefit of the drawer, payable to the plaintiff and endorsed by him and the defendant. The note was protested on the 6th April, 1842, and at Fall Term, in the same year, suits were brought thereon against the plaintiff and defendant. On the 30th May, 1843, plaintiff paid up the principal and interest, with the costs on both cases; it was proved, on behalf of the plaintiff, that some time after the note was protested, the defendant said he was liable for half, and the plaintiff proposed that each should pay half, which was assented to, but postponed until they could see if the drawer would not give a confession of judgment. A joint letter, signed by both of them, was then written to the President of the Bank. This letter was produced in evidence. It bore date the 2d May, 1842, and after requesting that the note should lie over, without affecting their credit in the Bank, until some arrangement should be made with the drawer, it stated that both were equally liable, and that they had agreed to be bound to each other. It was further proved, that plaintiff and defendant went to see the drawer to get a confession of judgment, and that the defendant af-terwards wrote to a friend to see the drawer and get him to, confess for all, and if not, for his half, or part, to keep him safe.
    On behalf of defendant it was proved, by James R. Aikin, that when the note was presented at the bank, defendant’s name was not on it. The bank required two endorsers, and the defendant, who was present, was applied to by the drawer to put his name on it. He at first refused, but on the drawer’s exhibiting to him a note of the plaintiff’s to the drawer for fifteen hundred dollars, he consented. The note then passed and the drawer got the money. The' plaintiff was not present. By another witness it was proved that the drawer applied to him to endorse the note, when the plaintiff’s name alone was on it. By the drawer’s brother it was proved, that the plaintiff applied to him to take up his brother’s note. Wished him to become principal, and he, the defendant, would endorse. After that, plaintiff proposed that either of the three should draw a note, to be substituted in the bank for this note, and the other two should endorse, but the defendant refused. This witness was present when the letter to the president of the bank was written. Defendant, he said, hesitated about signing- it. Plaintiff said that if it was not arranged it would throw them out of the bank. It was then agreed that they should apply to the bank for indulgence.
    The jury were instructed that it was immaterial whether the note was an accommodation note or not. In law, the defendant was not liable to pay the whole, or any part, fo the plaintiff. But that this legal effect of the contract might be varied by a parol agreement: 1. Where, before any liability was incurred by either, they agreed in case of loss to contribute. If such agreement was sufficiently proved, then Gibson was liable ; but that a subsequent agreement to that effect, without a new consideration, was a nu-dum factum.
    
    
      2. If, after suit brought, the defendant had agreed with the plaintiff, that if he would pay the money and stop the suits, he would pay half the note, in such case he would be bound. There would be a consideration to support the promise, although inadequate.
    It was contended in the argument, that if each supposed he was liable to the other for contribution, although in law he was not, this was a moral consideration which would support the subsequent promise. The presiding Judge thought otherwise, and so instructed the jury.
    He also instructed the jury that the application to the Bank for indulgence was not a sufficient consideration to support the promises to the plaintiff. The facts, with these instructions on the law of the case, were submitted to the jury, who found for the defendant.
    The plaintiff appealed, and now moved for a new trial, on the grounds :
    1. Because the defendant was bound by law to contribute to the extent of one half of the debt, paid by the plaintiff to the Commercial Bank, for Rosborough.
    2. Because it was the understanding of the endorsers, that each should be liable for one half the amount of the note endorsed by them for the accommodation of Rosbor-ough.
    3. Because, in consideration that the bank would extend further time to the endorsers, and save their credit in bank as drawers or endorsers, and that the plaintiff and defendant united in an application to the bank to that effect, they agreed to be bound equally to the bank for the whole debt, and each to the other for his aliquot part thereof.
    4. Because, in consideration that the plaintiff agreed with the defendant that he would pay the whole amount of the said note to the bank, the defendant undertook to pay one half thereof.
    5. Because, in consideration that the plaintiff would pay to the bank the whole amount of the said note, and save him from costs, the defendant agreed to pay one half of the said note ; and the plaintiff did accordingly pay the debt to the bank, and saved the defendant harmless against the costs of suit.
    
      W. F. Desaussure, for the motion.
    
      McDowell, contra.
   Curia, per

EvaNs, J.

The fact that there was a previous agreement between these parties, that in case of loss they should be liable to contribute as co-securities, is negatived by the verdict of the jury. If any such agreement or understanding had been proved, I think there is no doubt the plaintiff should have recovered, and the jury were so instructed. The joint letter to the president of the bank, unexplained, might lead to that conclusion, but the circumstances stated by James R. Aikin are clearly inconsistent with any such idea, and fully sustain the verdict, which negatives any such previous contract. The agreement, then, must be regarded as subsequent to the endorsement of the note, and after the liabilities of the parties had accrued.

According to the legal liabilities arising out of the endorsements, Cathcart was bound to pay Gibson the whole in case he was compelled to pay by the bank, but Gibson was in no way liable to Cathcart, the prior endorser. In this situation Gibson, as it appears by their joint letter to the President of the bank, agreed with Cathcart to pay him half, or, as is said in the letter, “ they had consented to be bound to each other.” The only consideration which is alleged to support this contract, is the indulgence which was asked for, and extended by the bank. It is not alleged or proved, nor is there any pretence to say, that the bank gave the indulgence because Gibson had agreed to become liable to Cathcart. The benefit of the indulgence was mutual, but it proceeded from the bank and not from Cath-cart ; and I think it is clearly insufficient to support the promise of Gibson to pay what he was under no legal obligation to pay.

As Gibson was liable to the bank as well as Cathcart, I will not say that if it had been proved that Gibson had promised Cathcart to pay half, if he would'pay up the debt and costs, so as to discharge him from that liability, he would not be bound, although the consideration would be very small. But no such promise was proved, and, so far as appeared, the payment of the note by Cathcart was in discharge of his own liability, and the payment of the costs of the case against Gibson was voluntary, and done, no doubt, because the bank would not settle the actions unless all the costs were paid.

The motion is dismissed, on all the grounds.

RichardsoN, O’Neall, Butler, Wardlaw and Frost, JJ. concurred.  