Thompson v. High

By the Court.

Lumpkin, J.

delivering the opinion.

[1.] A form is provided by the 3d section of the Act of 184T, “to simplify and curtail pleadings at law,” to recover money on a “note, bill, bond, receipt, or written promise of any description.”

Does the liability of this party fall within any one of the foregoing specifications ? The latter clause of this section is exceedingly broad. By indorsing his name in blank on the back of this note, George W. Thompson undertakes in writing, certainly, to be responsible for this paper in some capacity. If he is bound at all, and it is not necessary for this Court to decide that he is, it is by virtue of his signature, and if so, it is a “written promise" of some description. Not as indorser, for the instrument is not negotiable, but either as joint promissor or guarantor. And if so, the cause of action comes under the Statute, and is maintainable.

In some of the Courts it is holden, that whenever the name of an individual is placed on the back of a note at the time of its inscription, he is considered an original promissor. 8 Pick. 122; 19. Ib. 260; 24 Ib. 64. But that where the name is placed on the note afterwards, the party makes himself a guarantor. 4 Pick. 385. 7 Mass. 233; 11 Ib. 436.

I am not prepared to say that it will even become necessary in the progress of this cause for the Circuit Judge to define the nature of the defendant’s liability. He must be convinced, and so adjudge, that he is liable in some mode; that done, the requisitions of the law are satisfied. The defendant’s name must have been affixed on the back of the note with a design to render him liable, either as guarantor or as an original promissor; and the - authorities make but little distinction as to the liability in either of these relations. 11 New Hamp. Rep. 385. 17 Vermont Rep. 285.

I would merely add, that if the writ departs from the form prescribed by the Act, it is amendable, and should be made to conform to it. Everything else may be supplied by proof.

Judgment affirmed.