Bradford vs. Corey, impleaded, &c.

Same Term. Before the same Justices. Bradford vs. Corey, impleaded, &c. The addition of the words “ surety” or “ security” by the endorsers of a note, to their names, does not divest them of their character of endorsers. The only effect of the addition of these words, to their signatures, is to give them the privileges of sureties, in addition to their rights as endorsers. As endorsers they cannot be made liable without a demand and notice. And as sureties they are entitled to all the privileges of that character. If they endorse the note severally, they cannot be either joint endorsers or co-sureties. Where a note is endorsed by several persons, severally, the endorsers are liable in the order in which their names stand upon the note. In the case of several endorsers, they may be sued jointly, under the statutes of - 1833, ch. 376, and of1837, ch. 93, as different parties to the note—several and not joint endorsers—and in such action the plaintiff need not declare specially on the note, although the defendant declared against, endorsed the same as swrety for the drawers; but may give the note in evidence under the money counts. • This was a motion on the part of the plaintiff to set aside the report of a referee made in favor of the defendant Corey. The suit was commenced in 1844, by a declaration containing the money counts alone, on a joint note given by Abraham Shuler and Francis Newkirk to Henry Randall or bearer, dated December 17, 1836, payable two years after date, and endorsed by Martin J. Borst, David P. Corey, and Timothy Livingston. Corey affixed to his name the word “ surety,” and Livingston the word “ security”. A copy of the note was added to and served with the declaration. The declaration was made out against all the drawers and endorsers. It was not served on either of the drawers; nor on Borst, the first endorser. Corey appeared and pleaded separately. Payment of the note was regularly demanded when it fell due, and notice of non-payment was duly served on all the endorsers. Evidence was introduced before the referee, tending to show payment of the note by Borst, the first endorser, before the commencement of the suit. The note was given by Shuler and Newkirk the drawers, to Randall the payee, on the purchase of a store of goods by them from Randall. Corey endorsed the note as security. Shuler, Newkirk, and Borst all failed, and were discharged under the bankrupt act, in 1842 or 1843., Borst, by arrangement with the drawers in the fall of 1838, assumed the payment of the note. It was objected, on the hearing, that the note was not admissible in evidence under the money counts; the defendant Corey having endorsed the note as surety. The referee, after hearing the evidence, without passing upon the facts of the casé, decided in favor of the defendant Corey, upon the sole ground that the note was not admissible in evidence under the declaration. D. Wright, for the plaintiff. D. P. Corey, defendant in pro. per. [MAJORITY — By the Court, Paige, P. J.] By the Court, Paige, P. J. An endorser of a promissory note, although in the nature of a surety, is not, for all purposes, entitled to the privileges of that character. He is answerable upon an independent contract, and it is his duty to take up the note when it is dishonored. (6 Wend. 613. 8 Id. 199. 9 Cowen, 206. 21 Wend. 504. 16 John. 152. Id. 72, 40.) The endorser, when duly fixed, ought to pay the note, without waiting to be sued. If he permits himself to be sued, it is his own fault, and he cannot resort to the drawers for indemnity against the costs of the suit. (Simpson v. Griffin, 9 John. 131.) In some respects there is a resemblance between an endorser ahd a surety; in others there is none. (6 Wend. 613.) The undertaking of an endorser is conditional: it is to pay, if the maker of the note does not, upon being required to do so when the note falls due, and upon the further condition that the endorser be notified of such default. But if an endorser endorses a note for the accommodation of the drawer, to enable him to borrow money, the endorser is regarded as a surety for the drawer, and the latter, by implication of law, undertakes to save the endorser harmless of and from all expenses and costs to which he may be subjected in consequence of his endorsement. And in such case the endorser can charge the drawer with the costs of a suit for the collection of the note which he may have been compelled to pay. (15 John. 273. 7 Bing. 217. Jones v. Brooke, 4 Taunt. 466. 16 John. 70. 1 Greenl. Ev. § 401. Edwards v. Low, 8 Bar. & Cress. 407.) But although an endorser stands in the relation of a surety to the" drawer, in consequence of an endorsement of an accommoda-, tion note, or of a special promise of the latter to save him harmless, he does not lose his character of endorser, as respects the holder of the note. And he cannot be made liable on the note, without a demand and notice. He continues endorser, with all the privileges of a surety. In this case, the addition of the word surety, or security, by Corey and Livingston, to the endorsement of their names on the note in question, did not divest them of their character of endorsers. The only effect of the addition of these words to their signatures was to give them the privileges of sureties, in addition to their rights as endorsers. As endorsers they could not be made liable without a demand and notice. And as sureties they were entitled to all the privileges of that character. But inasmuch as they endorsed the note severally, they cannot be either joint endorsers or co-sureties. The note being payable to bearer does not make their liability a joint one. They endorsed the note before it became due, and probably at the time it was made. Their endorsement is a several one; and they must be deemed liable as en dorsers in the order in which their names stand upon the note. If Corey and Livingston are several endorsers, the suit was properly brought against them jointly, under the statutes of 1832, ch. 276, and of 1837, ch. 93. They were different parties to the note; several, not joint endorsers. They could not have been sued jointly at common law. The action against them is a statute action, and not an action at common law. This being so, the note was admissible in evidence under the money counts in the plaintiff’s declaration. (Butler v. Rawson, 1 Denio, 105. Miller v. McCagg, 4 Hill, 35.) The suit being properly brought, under the statutes of 1832 and 1837, the case of Butler v. Rawson is not applicable. It was not necessary—the suit being brought under these statutes—to declare against Corey specially on the note, although he endorsed the note as a surety for the drawers. The referee, therefore,erred in deciding that the note was not admissible, under the declaration. The referee did not pass upon any of the facts of the case. His report in favor of the defendant was made upon the sole ground that the note was not admissible, under the declaration. The report must be set aside, and the case must be referred back to the referee. Motion granted.-