
    B. R. Cockrell, v. David Milling.
    If one, intending to be the drawer’s security, or to indorse his note, at the timé of its execution, put his name on the back of i., although it be a sealed note, he will become a party of the original contract.
    Two may sign the same promise to pay money, one with a seal, and the other without, and if it is a several promise, both will be bound, although they would have to be sued in different forms oí action.
    Tried before Mr. Justice Evans, at Fairfield, Spring Term, 1847.
    This was an action of assumpsit on three notes. They were in the common form of promissory notes, by which one M’Dow-ell promised to pay the several sums of money expressed in them, to order of B. R. Cockrell, the plaintiff. There was nothing in the body of the notes which indicated that they were intended to be sealed notes; but there was at the end of M’Dowell’s name the letters, l. s. or s. s., which the witnesses thought were made by himself; and it was also proved that his habit was to take and give Ins notes generally with a seal. The name of the defendant, Milling, was written on the back of the note in the ordinary form of a blank indorsement. Above Milling’s name had been written since, such words as are generally used for guaranty. The facts as proved, were these: Cockrell had sold to M’Dowell the furniture of a hotel in Winns-borough, the price to be ascertained by appraisement. To secure the payment, before delivery, M’Dowcll was to give notes with indorsement or security. After the price was ascertained, J. R. Aiken wrote the notes; they were signed by M’Dowell, who mentioned several persons whom he could give as security, and the defendant among them, who was selected by Cockrell as of sufficient ability, and known in Columbia, where he expected to raise money on the notes.
    M’Dowell then took the notes to get the security. He sent his brother to Milling, who told him that M’Dowell wished him to come to Winnsborough and go his security, or indorse (the witness did not recollect which) his note to Cockrell for the furniture. Milling came, and wrote his name on the back of the note. The notes were then delivered to Cockrell, and M’Dowell took possession of the furniture. As the notes became due, the payment was demanded of M’Dowcll, and notice given to Milling of non-payment. There were many counts in the declaration charging the defendant as maker, as guarantor, and as the drawer of a bill of exchange, and also on a special agreement to sign the note as maker.
    The presiding Judge re tu sed a motion for a non-suit, and charged the jury that but for the supposed seal to the note, the case was in all its important particulars like the case of Stoney v. Beaubien; that he doubted very much if the letters added to M’Dowell’s name made it a sealed instrument, but he regarded that as an immaterial circumstance. Two might sign the same promise to pay money, one with a seal and the other without, and if it was a several promise, both would be bound, although they would have to be sued in different forms of action. He thought they might well consider the defendant as a drawer of the note, and as such find a verdict against him, which they did.
    The defendant renewed his motion for a non-suit, on the following grounds:
    1st. That the court ought to have granted a non-suit, inasmuch as the evidence established the notes on which the action was brought, to be scaled notes or single bills, and the law would not charge the defendant on his naked indorsement, either as maker of a promissory note or single bill, or as a guarantor, or as maker of three bills of exchange, or in any manner or form as charged by the plaintiff, whether the defendant knew the terms of the contract between the plaintiff and Henry M’Dowell, beforehand or not.
    Defendant also moved for a new trial, on the following grounds:
    1. That the Court permitted parol testimony to contradict and give construction to the written contract, at variance with its legal meaning and operation:
    2. That the Court instructed the jury, and charged that the law made defendant answerable as maker, whether the notes were under seal or merely promissory, inasmuch as the plaintiff refused to sell to H. M’Dowell without a good indorser, and this fact was made known to defendant before his name was added to the notes.
    3. That plaintiff, by filling up the defendant’s blank indorsement, deprived himself of all right to recover, unless upon the ground chosen by himself, and that he could not recover in law upon the ground chosen.
    4. That the verdict was contrary to law and evidence, inasmuch as there was not evidence to make the undertaking of the defendant an original undertaking, and the law did not bind him on a collateral undertaking.
    Buchanan & Buchanan, for the motion.
    Boyce, contra.
    
   Evans J.

delivered the opinion of the Court.

If there had been no seal attached to M’Dowell’s name, there could be no doubt that Milling would be liable. This case in every other particular is the same as the Stoney v. Beaubien, 2 M’Mul., 313, (see Story on Promissory Notes, 58, and the cases there referred to.) The principle is, that if one intending, as is said in Stoney v. Beaubien, to make the note good to the payee, at the time of its execution, put his name on the back of it, or, as in this case, to be the drawer's security, or to indorse his note, the law will give effect to his contract in such form as is consistent with legal principles. In Stoney v. Beaubien, the defendant wrote his name across the back where an indorser usually signs; but as the note was not payable to him, he could not by indorsement direct the payment; of the contents: so in this case the defendant cannot be charged as indorser for the same reason, and for the further reason that the note is the sealed note of M’Dowell, which is not transferrable by indorsement. And as in Stoney v. Beaubien, effect was given to the clear intention of the contract by regarding him as the maker of the note, so effect must be given to Milling’s contract by regarding him as a maker also. But it is contended that Milling’s contract is different from Bcaubien’s, in this, that M’Dowell’s note is a sealed note or single bill, whilst Sealey’s note, which Beaubien indorsed, was a common promissory note; and the case of Tucker v. English, 2 Spears, 673, is relied on for authority on this point. In the very short report of that case, it is said, “a third person made a single bill under seal payable to the plaintiff or order; the defendant wrote his name on the back.” If this was all the evidence, then the opinion of the presiding Judge, which was affirmed in this Court, that it did not make the defendant a drawer of a note of hand, was unquestionably correct. If a stranger to the contract wrote his name on the back of a single bill, without any consideration which might charge him as a guarantor, he would incur no liability. He could not be charged as drawer, for he was no party to the original contract. But the case of Tucker v. English, is very different from this case. Here Milling was a party to the original contract. His name was on the note before it was delivered. It was put there as the security which the plaintiff required as a condition precedent to the delivery of the furniture. I do not think, therefore, there is any thing in Tucker v. English, which is inconsistent with the direction given to the jury on the circuit. It has been supposed that a difficulty will exist in regarding Milling as a maker, from the fact, that by the same instrument of writing two persons are bound by what the law considers as different kinds of contracts; that is, M’Dowell’s contract is a specialty, and Milling’s is a simple contract. The words will answer for either. The form is that in general use, as well for a sealed note as a common promissory note. Each is severally bound, and the contract of each is a separate contract, and may be enforced against each as a separate promise. One may be sued in debt, and the other may be sued in assumpsit. Taking this view, it is unnecessary to discuss the question whether the defendant is not bound as guarantor. A large majority of the Court are of opinion he would, but it is thought best to put the decision on the same ground as that maintained by the Circuit Court.

The motion is dismissed.

Richardson J., Wardlaw J., and Withers J., concurred.

Frost J. concurred in the result.  