delivered the opinion of the Court. The first question which arises here, is, whether this was the promissory note of the Boston Glass Manufactory, or of the individuals who signed it. It is not now contended, that a corporation may not give a promissory note by its agents, and is not to be treated, in this respect, like a natural person. The main question in the present case, arises from the form of the contract; and the question is, whether in this form it binds the persons who signed it, or the company for whose use the money was borrowed. As the forms of words in which contracts may be made and executed, are almost infinitely various, the test question is, whether the person signing professes and intends to bind himself, and adds the name of another, to indicate the capacity or trust in which he acts, or the person for whose account his promise is made ; or whether the words referring to a principal, are intended to indicate, that he does a mere ministerial act, in giving effect and authenticity to the act, promise and contract of another. Does the person signing apply the executing hand as the instrument of another, or the promising and engaging mind of a contracting party ? It is held in many cases, that although the contract of one is given for the debt of another, and although it is understood between the person promising and the party for whom the contract is entered into, that the latter is to pay it, or to reimburse and indemnify the contracting party, if he should be required to pay it, it is still, as between the parties to it, the contract of the party making it. A leading and decisive case on this point is Stackpole v. Arnold, 11 Mass. R. 27.
With these views as to what the question is, and the grounds *351on which it is to be considered, we are of opinion, that this was the promissory note and obligation of the three makers, and not of the company.
The words “ for the Boston Glass Manufactory,” if they stood alone, would perhaps leave it doubtful and ambiguous, whether they meant to bind themselves as promisors to pay the debt of the company, or whether they meant to sign a contract for the company, by which they should be bound to pay their own debt; though the place in which the words are introduced, would rather seem to warrant the former construction.
But other considerations arise from other views of the whole tenor of the note. The fact is of importance that it is signed by three instead of one, and with no designation or name of office, indicating any agency or connexion with the company. No indication appears on the note itself, that either of them was president, treasurer or director, or that they were a committee to act for the company. But the words “jointly and severally” are quite decisive. The persons are, “ we, the subscribers,” and it is signed Jonathan Hunnewell, Samuel Gore and Charles F. Kupfer. This word “ severally ” must have its effect; and its legal effect was to bind each of the signers. This fixes the undertaking as a personal one. It would be a forced and wholly untenable construction to hold, that the company and signers were all bound ; this would be equally inconsistent with the terms and the obvious meaning of the contract.
If we go out of the contract itself, and look at the relation in which the parties stood to each other, with the view of giving effect to the language of their contract for one purpose, we must for another. It is a circumstance relied on for the plaintiffs with some confidence, that the money was originally borrowed for the company, that the note was entered on the books, as the debt of the company, and that the interest was paid by them. But it further appears, that from 1814 to 1823, these promisees held the note of the company, guaranteed by two of these promisors, Gore and Hunnewell, the other, Kupfer, having signed it as treasurer, which did not render him personally liable, and that at that time all the par *352ties were in good credit. Now upon the plaintiffs’ hypothesis, they must have voluntarily relinquished the liability of twc responsible guarantors, retaining the liability of the company only, and that for a large debt, which from the clause providing for a mutual notice of thirty days, seems intended to have been a kind of permanent loan. But upon the other hypothesis they retained the names of two responsible persons, and that in the more direct and unquestionable form of joint and several promisors, together with the name of another responsible person, as promisor, in lieu of that of the company'.
As to -the point, that this note was not negotiable, and therefore not to be deemed within the principle of the law of this Commonwealth as payment of the prior debt of the company, we have not thought it necessary to examine critically, or decide, whether, according to the authorities, the negotiability of the note is affected by the memorandum upon it. The rule in question is adopted to fix the presumption of what the parties intended, by giving and taking a negotiable note for a prior simple contract debt. Here we think there is abundant evidence to show, that the note in question was taken and received in satisfaction and discharge of the prior debt of the company, the former note of the company being given up and cancelled.
But there is another view of this case, we think, still more clear. Where a- person is allowed to waive a security given in satisfaction of a prior debt, and proceed upon the original cause of action, the note thus taken must be given up and restored unpaid, to the person from whom it was received. The plaintiffs now claim the debt, as due from the company, on the ground, that the note of Hunnewell, Gore and Kupfer, was not negotiable, has not been available to them, and they now waive it and claim upon the original debt due from the company. But before they can do this, they must show, that it has not been available to them, that they have made no use of it, and now restore and return it in statu quo to the defendants, the company from whom it was received. So far from that, they have sued it in their own names as the note of the three promisors, and have recovered a judgment for the amount of it. It is impossible therefore for the plain*353tiffs to say, treating this as the note of the signers, that they have not received it in satisfaction of the company’s prior debt and made it their own by their proceedings upon it.
Plaintiffs nonsuit.