Had the liability of the defendant arisen under an ordinary indorsement upon the note described in his guaranty, the fact, that the names of the maker and first indorser were not their genuine signatures, would constitute no defence to an action to recover the amount of such note. This is well settled. The language of the authorities is, that by his indorsement he virtually undertakes to every subsequent holder that the names of the maker and previous indorsers are really in the handwriting of those to whom they respectively purport to belong. Kyd on Bills, (1st Amer. ed.) 268. Bomley v. Frazier, 1 Stra. 442. Heylyn v. Adamson, 2 Bur. 675. State Bank v Fearing, 16 Pick. 533. 2 Greenl. Ev. § 164.
This is not however a case of an ordinary indorsement, and although, upon the parol evidence, it would seem that that was not adopted as the form of his liability, for the reason that he was unwilling to have his name appear on the paper in connection with one of the names already borne thereon, yet the contract not having been by an indorsement on the note, the liability of the defendant must now be considered as arising under the guaranty made on a separate paper, and the extent of liability thereby incurred is the proper question.
Had this promise been written upon the note itself, the defendant therein guarantieing the payment of that particular note, it would be difficult to find any principle upon which it could be held that he was not liable for the payment of such note, if the same was unpaid by the parties thereto. Take the case of a note prepared to be sent to a bank orv elsewhere for discount, and bearing the name of an individual purporting to be the maker, and of another purporting to be an indorser, and also having a guaranty written thereon under the name of *93such apparent indorser, and thereupon discounted by a bona fide purchaser, no one, we suppose, would contend that, in a suit by such purchaser against the guarantor, the latter could avoid all liability by showing that the names of the prior parties, or of some one of them, were in fact forged and counterfeited. The guaranty, in the case supposed, is that the note shall be paid according to its tenor at all events.
The present case is somewhat different in its circumstances, and certainly a case of more difficulty. No doubt can exist however as to the precise note, the payment of which, for a valuable consideration, was guarantied by the defendant. The guaranty describes this note; and no other of the like kind was in circulation. The application to the defendant for the guaranty was by the plaintiff, when negotiating for the purchase of this particular note. The note was shown to the defendant, as the note to be guarantied. It was not a case of general inquiry of the defendant at what sum he would guaranty a note of these parties, not yet made, or not yet seen. The defendant had equal opportunity with the plaintiff to examine the note. The facts stated show that this note was shown to the defendant before the guaranty was made, and the purchase took place upon the guaranty being signed by the defendant. There were two genuine signatures of indorsers upon the note, Wellington and Reed, neither of whom could have denied the signature of the maker, Boynton, or of the first indorser, Lambert. The paper was not therefore wholly a fictitious paper, without any genuine signatures by parties liable to be charged.
The ground of objection to the maintenance of the action is, that the contract, on the part of the defendant, was made upon the assumption that all the names borne on the note were genuine signatures, and that he intended only to guaranty the solvency and ability of the parties to pay the same, treating all the names thereon as liable, as parties to the note. But it appearing, upon the facts stated, that the defendant guarantied the payment of this particular note, and thereupon the plaintiff concluded his agreement to purchase the note, both parties being equally innocent as to any fraud, misrepresentation or conceal-*94merit, the court are of opinion that, upon the nonpayment of the same at its maturity by the parties whose names were borne thereon, the defendant, under his guaranty, became liable to pay the same to the plaintiff, although it now is made to appear that the names of the maker of the note and one of the indorsers were forgeries. Judgment for the plaintiff.