John A. McDonald, owing Peter P. Johnson for a bill of goods, gave him a note of hand worded as follows:
"Fayetteville, N.C. Nov. 20th, 1850.
"$259 68. Ninety days after date, I promise to pay Peter P. "Johnson or order, two hundred and fifty-nine dollars and "sixty-eight cts., for value received: Negotiable and payable "at the Branch Bank of the State of North Carolina, or "at the bank of Fayetteville, at the option of the holder." (Signed,) John A. McDonald.
The note was endorsed by the defendant in blank, he at the time requesting that it might not be discounted at bank, saying, that if the maker did not pay it he would. The payee afterwards endorsed in blank and sold the note to the present plaintiff.
The plaintiff had heretofore sued the maker, the payee and the present defendant upon this note, but struck out the names of the defendant Hooker, and of payee, P. P. Johnson, and took judgment against McDonald, the maker only. He proving insolvent, and discharging himself under the insolvent debtor's act, the plaintiff commenced the present suit against the defendant (Hooker) and the payee in the County Court. The name of the payee was again stricken out of the writ, and the suit stood against the defendant only. Judgment was recovered against him in the County Court, from which he appealed to the Superior Court.
The note was not discounted at the bank, and no demand was ever made at the bank for payment. The defendant's counsel upon the trial in the Superior Court, moved to nonsuit the plaintiff, upon the ground, that when the note came into the possession of the plaintiff, the endorsements of the payee and the defendant were both in blank, and the plaintiff's counsel had upon the trial in the County Court, made the endorsement of the defendant special, by writing above his name the words, "pay to C. S. Johnson," yet the endorsement of the payee was still left in blank. His Honor refused the motion, and allowed the plaintiff's counsel to fill up the endorsement. *Page 31 of the payee by writing above his name the words, "pay to J. W. Hooker."
For the defendant it was contended 1st, that Hooker was not liable as endorser, because the note was never transferred to him.
2. That the defendant was not liable, because there was no consideration between him and the plaintiff.
3. That the defendant was not liable, because the note was never presented for payment at the bank: nor offered for discount there.
4. That the defendant was released by the act of the plaintiff in striking his name, and the name of P. P. Johnson, the payee, out of the writ, in a previous suit instituted against them and the maker.
5. That the defendant was released by the act of the plaintiff in striking out the name of P. P. Johnson from the writ in this suit.
His Honor ruled against the defendant upon these several points: for which he excepted, and the jury having rendered a verdict for the plaintiff, defendant moved for a venire de novo upon the grounds above stated, which was refused. Judgment and appeal to this Court. The act of 1827, Rev. Stat. ch. 13, sec. 10, makes an endorser liable to the holder of a note as surety. The effect is to put him on the footing of a maker of the note, and to make his liability to the holder the same as if his name was on the face of the note instead of being on the back. Thus an endorser is brought within the decision, made at this term, Nichols v.Pool, ante 23. If a note be payable at a particular time and place, a demand at the time and place need not be averred or proven in an action by the holder against the maker: A failure to make it can only be used by way of defense, if the money was ready at the time and place. *Page 32
The idea that the Statute does not apply to a note payable at a particular place has nothing to sustain it: The words of the Statute are general; so it is unnecessary to enter into the question of the supposed waiver of demand and notice, because no demand was necessary.
In regard to filling up endorsements in blank at the trial, the practice is too well settled, to be now drawn in question. The trial in the Superior Court is de novo — is the same as if the writ had been returned to that Court.
Striking the name of the defendant out of the writ, does not in any manner affect the cause of action against another defendant: Nor does it affect the right of the plaintiff to bring another action against the party whose name is stricken out: There is nothing to support the notion that it amounts to a release or to a discharge of the debt in any way.
The fact that the name of the defendant was put on the back of the note before the payee had endorsed it, in no wise affects the rights of the plaintiff as holder: when he put his name on the back of the note, it amounted to a general power of attorney to fill up the blank in such a way as was necessary to make him liable as endorser: and this by our Statute is the same as being surety. That this is the effect of an endorsement in blank, has been considered settled ever since, Russell v. Langstaffe, Doug. Rep. 514, (1780.) The defendant endorsed his name on fine copper plate checks made in the form of promissory notes, but in blank, and without sum, date or time of payment being mentioned in the body of the notes. The blanks were filled up and the plaintiff discounted the notes. For the defendant it was objected that the notes, being blank at the time of the endorsement, were not then promissory notes: LORD MANSFIELD, "There is nothing so clear as the first point. The endorsement on a blank note is a letter of credit for an indefinite sum. The defendant said, `trust Galley (the maker) to any amount, and I will be his security:' It does not lie in his mouth to say the endorsements were not regular."
PER CURIAM. Judgment affirmed. *Page 33