Daniel v. McRae, 9 N.C. 590, 2 Hawks 590 (1823)

Dec. 1823 · Supreme Court of North Carolina

9 N.C. 590, 2 Hawks 590

IN EQUITY.

Daniel v. McRae.

From Wake.

¡ Endorsers, on accommodation paper, for the benefit of a third person, where there is no special agreement between such endorsers, and j where neither is benefited, are to be considered cosureties; and, therefore, where A. and B. became, at several times, endorsers on a note, made for the benefit of C. on-which C. by discounting' at a Bank, received the money, it was held that B. against whom the Bank recovered, and who was the last endorser, was entitled to call Upon A. for one half, only, of the sum recovered by the Bank ; and that every endorsement is but prima facie evidence of the purchase of a note, and tire contrary may be shewn.

The complaint as set forth in the bill, was, that the complainant had endorsed for the accommodation of one Lucas, a promissory note, negotiable and payable at the office of the Bank of the United States, in Fayetteville, for about the sum of g 900, that after such endorsement, he re-delivered the paper to Lucas, who applied to the líeles idsj^^lo endorse the same, as the rules of the Bank required two endorsers before discounting any paper. The bill stated, that McRae endorsed at the request and instance of Lucas, alone, and not of the complainant, and the paper was discounted at Bank for the sole benefit of Lucas | the note when it came to maturity, was protested for non-payment, and was paid and satisfied by McRae, who then commenced suit upon it, against the complainant, contending, that as last endorser, he had a remedy against complainant, as a prior endorser, for the full amount of the note. The complainant being willing to do what he believed equity required, paid to the agent of biiciiae one half of the principal and inter» est then due on the note, and it was agreed between the a+tornics of the parties, respectively, that the suit should proceed, to try the question of complainant's liability for more than one-half of the amount of the note, and fur-iher, that to avoid unnecessary expense, the suit should abide the determination of one then pending in the Supreme Court, which was said to he similar in its nature j that afterwards, however, and notwithstanding* this agreement, a judgment was rendered in the suit against the Complainant, for the full amount of the, note, at a time when neither of the attornies, who had entered into the agreement before stated, were in Court; that on this judgment, (of the existence of which Complainant was ignorant, until after the adjournment of the Court in which it was rendered,) an execution had issued. The Complainant further stated in his bill, that he had procured an assignment of a part of the property of Lucas, to secure himself in his endorsement, that he doubted liis title thereto, that lie was ignorant of the value thereof, and that he always had been, and was yet, willing* to give to the Defendant, a full share of the benefit of such assignment. The bill prayed an injunction, and relief generally.

The answer affirmed, that Defendant endorsed the note, upon the faith of the responsibility of the Complainant’s prior endorsement, and positively denied any understanding* or agreement between himself and the-; Complainant, that they should become bound as co-sureties for Lucas on the note. It admitted, that judgment was obtained against the Complainant by Defendant, for the full amount of the note, and stated, that, since the judgment, the execution had been credited by the amount of one half of the note, which Complainant had paid. It denied, that any undue advantage was taken of Complainant, in obtaining the judgment, and also, that any agreement was ever made, as set forth, that the suit should abide the decision of the Supreme Court, on a similar question.

It was further insisted^ that the Complainant had complete remedy at law.

Ruffin, for Complainant.

The relief sought by a surety, against his co-surety, does not depend upon contract. If it did, there nevu- could have been a doubt about a remedy at law; bt cause the law never would have refused a remedy upon an express agreement, made upon sufficient consideration.

Of late years, the English Courts have sustained suits at law in such case, upon the ground, apparently, that parlies being aware of the equity arising out of the relations of principa! and sureties, would make a contract corresponding with it. But these decisions have not affected the rule, or,* the jurisdiction of Chancery there, and here, the Courts of Law uniformly renounced the jurisdiction, until the Legislature interposed in the act of 1807, c. IS.

The true ground of relief, is the principle of equity and natural justice, i esuiting from the relation of creditor, principal and surety. The principle is this, that The, surety has a right to stand in the place of the creditor. and be subrogated to all his rights; and to make ih’s principle, effectual., the surety will be entitled to every remedy ttbieh the creditor hud against the principal, to por.srru end ■enforce every security of every description, either against the principal or bis co-sureties, whether entered into with, or without lhe*fsoow-ledgv- of the. surcy,, and whether all the securities be 'in one or in tlnf'crU instruments i'eer'uig x. the Earl of iVindit'hen- — (■’, res. & Pul. 270.) This being the jrrisripK it in c’ch', that where there are two or more isurtiien, each coo k; e.pialSy entitled to the benevolence of ¡'.he, creditor, ru (key all stand alike to him in that relation which cano Ids aid ; asid ¡herefore, he shall deal equally v*ith ihe.i?, because that is equity. Uo has the power to either pay :i!!, or each a par1., a,id if 5j« will not cj.iTflse the right of calling on each for Pis puporib',;,: ■ i’ie Court vil! dispense the equity which he ought, :m?l gh a to one surety relief against the other.

Ás the right to contribution then, depends not on slip-ulation between any of the parties, either of the creditor 1 ‘ to the sureties, or either oí them, or of tiie sureties one to another ; but on tiie equity of the substitution of tiie securities in place of the creditor, it seems to follow necessarily, that the right to substitution is the test of the rigid to contribution. Hence every surety is entitled to contribution from another surety, for the. same debt, because every surety is strictly entitled to be substituted for the creditor. The connection between the creditor, as such, and the surety as such, is the foundation of the latter’s relief. Establish, therefore, that connection in more persons than one, and it seems to me that the right' of indemnity, pro rata, instantly arises $ because each of tiie contending parties stand alike affected to the creditor, and the maxim that equality is equity, shall, therefore, be the rule- of his conduct towards them. This subject is ably treated and fully illustrated by' Lord ICaim.cs, in his Frináples of Equity, and tips rule has the full sanction of the English Courts of Chancery, and those of our own country.

The case of Beering v. Earl of Winchelsea Sf Rous, already cited, is a strong one. Thomas Deering was appointed a He,reiver of Customs, and gave sureties in £ 12,000, by giving three several bonds to the Jung, in £4,000 each, in one of which the l’iaiuüíf was his surety, and tiie Ear. of W. was surety in another, Rous in the third. He absconded, having failed in a balance, of ¡S3,80S | to recover which, the bond given by the Plaintiff was put in suit, and he. then liied this bill against the other two securities for contribution. There had been no communication between tiie co-sureties, and therefore, could be no contract, j they were bound in different bonds, wiiicii shewed their distrust of each other, yet it was held that the Plaintiff was entitled to contribution, ami the deficit was equally divided between the three sureties. This is a leading case, and is consider-C(] as settling the rule in all the subsequent eases. , The same .general principle is recognized in many other books. Exparte Marshal — (1 Mk. 129.) Exparte Crisp —(Mem. 135.) Parsons v. Briddock — (2 Vern. G08.) Wright v. Mosely — {ti ves. 22.) Cheesborough v. Mil-lord — (1 Johns. Ch. Ca. 413.) Stevens v. Cooper — (Ibid. 430.) Hayes v. Ward — (9. Johns. Chf. Ca. 129.)

In Hayes v. Ward, the creditor took a subsequent mortgage, to secure the debt, without the knowledge of the surety, and it was held to enure, not for the credit- or’s benefit only, but for the indemnity of the surety, and that, if. necessary, he might have an assignment of it.

And folly to appreciate the effect of this rule, it is to be recollected, that the Court will coerce an actual assignment of the security, not only by a delivery of it over, but even if satisfied by the payment by the surety, will preserve it, for his benefit, in the state it was iu the hands of the, creditor, before satisfaction, and allow the surety to set it up in the name of his creditor.

Thus, in Clason v. Morris, (l 0 John. Rep. 524,) where the Plaintiff was the surety of Sands to L. who sued Sands, and obtained judgment, and afterwards sued and obtained judgment against the Plaintiff, who paid the debt and took an assignment of the first judgment, under which be sold. It was held, that thejudgment was not satisfied, notwithstanding the payment, and that the Plaintiff might, as the substitute of L. use it for bis indemnity.

And in Hesanssurs’s Rep. 409, where one was surety for another, in a bond, on which judgment was rendered against the principal, who died and left assets to pay it, but not sufficient to pay his simple contract, or specialty debts, the surety paid it, and for his indemnity the judgment was set up by the Court, as still subsisting against the executors of the principal.

These cases are enumerated to 'shew, how far the Courts go in support of this rule of equity, and to shew the nature of the substitution meant. The principle of them strongly applies here. It is said, that this case is out of ihe rule, because by the form of the contract, if the creditor did code the paper to the Complainant, it would not avail him, inasmuch as he is the endorser of the Defendant, and it is a rule that no one can have a right against another, wiio becomes a party to the bill or note after lam. It is admitted to be so at law, but it is begging the question to argue so here. The contrary must, unquestionably, be the rule in this Court. For it cannot be pretended, but that Mellas is, as respects himself, a gratuitous endorser, and the Bank a surety for Lucas. Such, precisely, is likewise the character of Daniel. If Melláis redress against Daniel, is by virtue of his substitution in the place of the Bank, Daniel, by the same means, can have redress against him. It is true that McRae sues here, in las own-name, because ho happens to have taken up the paper and can have an action (under certain circumstances,) at law, upon the contract. But that is not the foundation of his rights in this Court, where he is regarded in only one point of view, as the successor to the creditor, and where he will be protected and the security supported in his favour, as well where it is not, as where it is a negotiable instrument. If it be not negotiable, then he could not sue at law 5 so that his rights do not depend on the accidental circumstance of being able to go to law, but upon the higher principle of the equity of this Court. In this respect, Daniel is exactly as well off as McRae, because as substitutes of the Bank, one can sue at law as well as the other. Suppose too, that before McRae had paid, tlie Bank had recovered judgment against both endorsers, then he could not have sued on the Ull, which, at once, shews the absurdity of founding his pretensions oh that circumstance. Daniel, a surety to the Bank, would have as much right to call for an assignment of the judgment against McRae, as the latter would to ask for that against the former. The Bank is under ¡he same obligation to each, in relation to tiie same sn?n of money, and, therefore, each has an equality of equity.

"Thus far as to the rights and obligations of these [jar-ties, resulting from their connection with the creditors ; the result of which is an equity in favour of Daniel, which must, in tin's Court, overbalance the advantage which McEae has at law, as the holder of a negotiable instrument, even supposing him to have a right of action on it.

But, in truth, all of McRae’s rights depend upon the same principle. For, at law, he has no remedy upon the hill, properly speaking, being the immediate endorsee of Daniel, without value, he could not recover for the want of a consideration. Chitty on hills, 91 — Merrick v. Car« man- -(16 Johns. 234.)

This is nothing like the cases of Violeit v. Patton — (5 Cranch. 142.) Tentón v. Bank of Alexandria, Ibid. 49, and Brown v. Molt — 7 Johns. 361.) which are mentioned, in Love v. Wall — (1 Hawks Rep. 313,) and are the professed foundation of the intimation thrown out in that case. They are cases of bona fide endorsees for a valuable consideration. The Plaintiffs paid money for the notes when they took them. Although the Defendants endorsed for the accommodation of the makers, yet, as to the Plaintiffs, they were not gratuitous endorsees, because they paid for the endorsements in getting the note. The consideration need not bo beneficial to the person, making the promise, and the value paid by the holder «pon discounting the note, is a consideration extending to all the parties on the paper. He buys the note such as it then is, endorsed as well as made. He pays for the endorsements, they shall therefore enure to his benefit, and where tlsere are two endorsers, the discounter buys hoth.. and the consideration paid by him shall equally alie ci both.

But it is altogether contrary between two accommodating endorsers. What consideration did Ms3ne pay to Darnel. He lent Lucas his name as Daniel did, and nothing more. He" did not pay one cent for the note, but. endorsing it, returned it to Lucas for his use. Suppose the note had never been put into circulation by Lucas, McEae certainly could not recover on it. That, it was negotiable can make no diifercncc here, for McRae cannot come upon the footing that the Bank paid value, and he holds upon that consideration. The Lank holds under him, and the value was paid by tbs Bank for his endorsement as well as Banieí’s. If I make a gratuitous note to my con, he cannot recover against me before negíoi&tion ; nor can he after. If he pass it away, and value is once given for it, the holder for value, and any subsequent endorsee may call on me. for it; but if my son, the pajee endorser, takes it up again, instead of me, from the holder, our original relation is re-assumed, and lie can now no more recover against ine as maker than before. lie cannot say, “ you gave me. the note, and therefore when given, I could not enforce it; but, since that time, I passed it to A. for a horse, you failed to pry A. ho has called on me, and I have returned him the horse, and taken up the note; and as A. could have compelled you to pay, so can I, standing in his place, now do so.” No, he is not injured. He is no worse o«T now than before. He is exactly where he was, and not having given me any consideration for the note, he shall not make me pay any thing for it.

The truth is, that accommodation paper has no reality in it, it is nothing until it has been negotiated. Then it becomes real',’ but is only so as to the party who gives value for it. As to those through whose hands it passes without value, they stand as mere sureties for him, for whose accommodation the paper is made. If the endorser have to pay the note to the discounter, he recovers the amount again from him who received the money up. on the original discount, because he paid the money Jor him.

That such accommodation endorser is a mere surety, is obvious from the very nature of the transaction. The first endorser does not pass off the note to a third person, he docs not, in fact and substance, put it into circulation. He endorses it and returns it to the maker, and he gets a second and a third to endorse it, and they all return it to him, or rather, in truth and reality, they all endorse it in the maker’s hands, and it never passes out of them, until he makes a real transfer by leaving it to be discounted.

There is nothing in the form of the contract to prevent this result, as the relief is not founded upon the contract, the Court disregards the form and relieves upon a principle de hors. The case of a joint and several bond ; that of several bonds for the same money, shew this. It has been shewn, that the ground of relief, is the relation that eacli surety lias to the creditor, and the Tight of substitution to his rights, according to the nature of their contract with him. Apply the principio to endorsements, and it will be perceived that it does not exclude, but enforces the obligation to contribute. There is no doubt; but that the last endorser might so modify his contract with the discounter, or with the prior endorser, as to avoid responsibility; thus, he might be requested to endorse by the first endorser himself, or he might make a special endorsement, that he was to be liable in default both of the maker and prior endorser.. In the first case, the prior endorser is clearly the principal of the second endorser; and in the latter, the second endorser is a mere guarantee 5 as much so, as if he had not put his name on the note at all, but by a separate instrument entered into a collateral obligation, limiting his responsibility in the terms of default in all the parties on the note. Such, however, is not the nature of the contract of an endorser, Mediae did not contract with the Bank, that if Use Bank wouW demaná payment from Lacas and ílejúel, and ¿bey «lid not pay, lie Mr? fe would. Tingre L-s no need oí" a drairamd íyom a, previous endorsar, to make a r.íibscqíipnt sneoroer Fiabm ¿o Hie bolder» The demand is an the maker only, mi«: that alone, and the notice to the oudorm r, w'soip tho holder to then pursuing in that action, in stated in Uto declaration. SUolh endorsers promise Use mms filing, that is, that the rashes* vil! pay at síiat.-srüy, and that, if lie do not, upon demand, iiieia cadi cnáors'.T proraíraa that, upon reasonable notice of the refea!, he will pay immediately.

This notion comports precisely with the tenth of tho case, ami is supported by many decision.-, that an accommodation endorser is a mero surety.

The fact that the. holder reeditó ího cotojfom the. maker, has been held to be conclusive that the endorsement was gratuitous, ¡sad being so, ¿he endorser is a mero surety, and entitled, even against the creditor himself, to all the privileges of a nyroty. — I!&$c* v~ Hard — (4 Johns, ch. tías. 1 S3, 130») fío •'‘lusas, v. «Morris — (10 Johns. Yep,') is a case of an acvemumkiion en." dorser, who was entitled to all the rights of a surety as against the creditor, the debtor, and the oí her creditor:» of the debtor, and this is no new doctrino. For, in Bankruptcy, accommodation endorsers have long been considered as sureties, and culi tied to the benefit of substitution, though it be prejudicial to tho creditor hi «itself, by diminishing his dividend upon other demands against the Bankrupt. (JSscparie Turner — (S Yes. Jan. 243, hi] Lord Mmslfn.) Exparle Marshal — (¡ JMk. lili* 131,) which is a case the more remarkable, because Uso liabilities of a voluntary endorser and oí one for value, are broadly distinguishable. These cases shew, -it the creditor shall prove his debt under the cowmi; Aera against the maker, and although be be aííerosu-d» «>i¿id by the endorsee, his proof shall stand, and fee. draw di - vidend fin* the accommodation endorser. If it had been a i-cal endórsemela k ", wc«k! be otherwise ; yerme;;* the demand of the endorser against the maker, aro*e the Óankruptcy. Lord ISIdon has since recognised she same distinction in 18\)5. — -Exparte Mush, Jorlh~ — { 10 ves. 416, 418.)

Seawell, contra.

Gloria advisarc vult.

Hall, Judge.

The facts in this case are but few. The. question is, whether Daniel is bound to pay the util amount which the note given by Lucas to him calió for, oi’ only a moiety oí that sum. 1 think the same principles should govern the case as if it was decides in a court of law ; because the reason why this Court assumes jurisdiction Is, that Daniel, owing to particular circumstances, did not make a defence at. law.

Wneis ike note was given io Daniel, there was no obligation on Lucas to pay it, because it was given on no consideration ; the same remark may be made when it was endorsed by Daniel to McRae. Me ¿foie could not have effected a recovery against Baa'd, because he had given nothing for it; nor was there any liability upon any person, afler the endoroementp for accommodation made by McRae, until it was accepted by the ¡ühusfc, and by them discounted. At ih.u time Lucas ¡.ec-ms absolutely bound yo pay it, ana Jsaüi ifoc/fo,- Daniel became siecursues ;or him. Lucas fo came oornd, because he rs*cciv**u the money h-tnn the Loí.-a, ¿íriim and Dauic! became bound as his securities, beriurw he received it by their means and at their request. 'When McRae juki the debt to the Dank, k© paiu .t ** s t'.o security of Lucas, Had he pfisv-aasad the no:: Í. c:.' £)*.i« ici, for value, and then endorsed .t to t ■ £.• :k . *r value, and had either lie os,* Luca-;, by has couscui, r^nar-wd the money raised «pon it, asid then Lucas had failed, and be had been obliged to pay the money due to the, Sank, there could be no doubt but he could recover the full amount against Daniel. Hiere would be the same result if he had paid for the note to Lucas, by the con» sent of Daniel. "In eitner of Otese cases, he would have had a remedy upon Daniel’s eudornetnertl for fuM indemnity, and this remedy would be authorised by the well known rules of law established in She mercantile world, with regard to bills of exchange and negotiable papers. I admit, that the, form of the note and the endorsements on it, without going further, would lead to the same i*Or medy. Every endorsement is a prima Jade evidence. of a purchase of the note, 3 but the conlrary may be shewn, in the present case, it appears that McRae gave nothing for the. note, and when he endorsed It, he stood in the same situation with Daniel; it never bad belonged to either of them 'when the Bank discounted it, and paid the money to Lucas ; it was in their hands evidence of a debt, boil» against the maker and the endorsers, and they had their remedy accordingly. If either endorser paid it, he bad a remedy against Lucas for the full amount, but against the oilier endorser for a moiely only, and that upon a principle of justice ami equity, that as they both stood in the same situation as co-securities, there could be no reason why one should be compelled to hear a greater burthen than the other; their endorsements were both gratuitous, and on that account when made, a frius or posterius, gave no rule of lia bilify.

It may he further observed, that had not Mediae, or some other person, endorsed the note, Daniel’s liability would have never happened, for the Bank would not receive it without another endorser.

It is said, that in a case similar to the present, the Court, in giving judgment for the. Plaintiff, relied upon the cases of Smith v. Knox — (3 Esp. Rep. 46, and Charles v. Marsden — (1 Taunt. 224.) I allude to the case of Brown v. Mott — (7 Johnson 361.) In both those cases the Plaintiffs, the endorsees, were purchasers of thé hill for valuable consideration; that was not the case here. McRae paid nothing for the note, until he paid the debt due the Bank as security in consequence of his endorse-merit for the accommodation of Lucas.

There can be no doubt but that the transaction may be looked at as it really happened. — 15 East. Rep. 222 — Wright v. Latham 3 Murphey.

Henderson, Judge.

This bill presents the question, »is McRae the co-security of Daniel for Lucas, or supplemental only ? if he is the former, Daniel is entitled to Í relief; if the latter, he is not. Co-securities are those Í who have assumed the same obligation, equal in all their ( liabilities; supplemental securities are those who come } in aid of the former. We are not precluded by the na-"j ture of the endorsement from examining the transaction , as it really is, it affording only prima fade evidence of i/the nature and order of the liabilities of the different ) persons whose names appear upon the' note; to prove \ this, authorities need not be cited. The discussions, which | daily arise in our Courts of Justice upon accommodation { notes and bills, prove sufficiently, that the mercantile order of liability is only prima facie evidence, and, in / fact, may be even inverted, as was declared in 15 East. 216, where a subsequent endorsee was held liable to a prior endorser (not indeed on the bill) it being shewn that it was discounted for his benefit, which fact never could have appeared to the Court, if the note and en-l dorsements were conclusive upon the parties. I am at / a loss to discover how it could ever have been doubted. ). for the admission of such evidence contradicts. no express written agreement, but repels an implication on- ' / ly. The note in the hands of Daniel created no liability in Lucas, for Daniel had given nothing for it. The *¡auie may bo said when it was in the hands of McRae» to whom it was delivered b/ Lucas, the maker, which is evidence that it was made for Lucas’s accommo-daiion, and was not an evidence of a debt from Lucas to Daniel j for if so, why was it left in the hands of Lucas, the maker ? By this fact, McRae was informed that the note was made for Lucas’s accommodation. To enable him to raise money, he put his name there at. Lucas's request, and for Lucas’s benefit. These are the facts of the case-, and from them, we will endeavor to ascertain the nature ami extent of McRae’s engagement. Every endorsement of a note, is drawing a bilí of exchange. It directs the maker of the note to pay its amount to the endorsee, and if the maker gives value for it, it imposes upon Use endorser the obligation of paying* it himself if the maker should not (lo so upon application, and he, the endorser, should be duly notified thereof. It imposes no obligation on the endorsee to apply to a prior endorser before he calls on a subsequent one, but he may do so if he thinks proper j for each endorser may he considered by him as drawing* the bill in his fa-vour, a ml he is substituted to all their rights $ but he is called on to make proof of his endeavours to procuro payment from the maker of the note, or acceptor of the bill of exchange only, and due notice {hereof to such en-dorsee as* Sie may think proper to cal! before the Court. Whether he has applied or given notice to any other endorser, is entirely unimportant in that trial. The iBank, therefore, recovered of McRae, regardless of vhat steps they might Slave taken against Daniel. Their obligation was to use due diligence as regarded Lucas. The obligations of Daniel and McRae were precisely the same, equal in every respect to each other. They are, therefore, co-securities, and the one not supplemental to the other. If is true, that an endorsee for value, when lie indorses the note or bill over, has all his prior endorsers for his indemnity; and had McRae discounted this note, by paying Lucas the money (for it is not necessary tl*at the money should be paid to his en» ^0l's<,r» ** *s sufficient that it is paid to any one at his request) when he afterwards paid the money, and took Up jilc bill from the Bank, he would have been remitted ‘to his former situation, ami might then have looked to , Daniel for an indemnity. Toe money whio;. Mcffae if paid to the Bank, was in satisfaction of his, promise that \ be would pay if Lucas did not, and not as a purchaser ) of the note. That co-securities may be, by different in- \ strunsents executed at different times, and without com- ’ inunicatiou or mutua! understanding to that effect, is / shew n by the case Sir Edward Deering v. the Earl of Wilchelsea — (2 Eos. and Pul. 270 and 14 Vesey.) Craythorn v. Sir John Swinburn. In the latter case, Lord Eldon refused relief, not because the parties were, bound .by different instruments, but because one surety was supplemental to the other. In which case also, it is admitted, that contribution arises, not upon contract, but upon the principle of Equity, that equality is Equity ; that, is, that it was originally so, however it may be at present, since adjudications have been made upon the subject, because men are presumed to act in reference to the law as expounded.

I think these principles ace plainly dcducihlc from the English authorities, although I can find none of them anaSagous to the present case. The case 15 East's Rep. 216 — Brown and others v. Maffey, may on first view seem to be artalagous. But Í think it essentially differs. In that case, a note was given to the payee to raise money to fulfil some obligation or promise which he was under, or then undertook, to the. maker. The note was then delivered to the payee, and by him endorsed to the Plaintiff without consideration, and by the. Plaintiff endorsed at the request and for tiie accommodation of the, payee. The Plaintiff was afterwards compelled to take it up, and he brought an action against the maker. The note, in that case, was in possession of the person to whom it was payable; and this by the consent of the maker. The •pavee was thereby enabled to gain credit, and causo others to incar liabilities for him upon the faith of the note; and this by the consent of the Defendant, vlt-n thereby rave evidence to the world, that the payee had i!« amount in his hands, and that he would pay the saíno to his endorsee. Not so in the present case. For lai-cas, the maker, retained the note, even after Danieles endorsement, which was the most satisfactory evidence that it was made for his accom'-nod-dion, and was not evidence of a real debt due from him to Daniel. All iho circumstances when taken toother, speak the truth. There was no danger of imposition. Besides, it appeals that ihe noto, in the ease above referred ío, was a ml» fot the solo benefit and accommodation of the payee. Another observation might be made on the case. Tho Defendant sticcceiled in his defence on oIIutgirm>ulss and it was a matter of not much moment how be did so. 1 adutif'ihat the case of Brown v. Moll, 7 Johns. 361, is an ñoíli.oi'ity in point against the Complainant. I have exaumicd that case, with respect and retention, which is due to every thing that comes from thai Court, and ido not think that the authorities on which it is professedly bottomed, support it.

Taexor, Chief-Justice, dkseuled.