Carr's Ex'ix v. Rowland

Wheeler, J. The indorsement of the note by the appellant’s testator, was not in the character of an ordinary indorser or assignor. It was in that of a guarantor or surety. He was not a payee, transferring the note by his indorsement. He put bis name upon the back of the note, which was payable to others, who transferred it to the plaintiff. He, therefore, is not to be considered in the light of a common indorser, and was entitled to none of the privileges of that character. (Moies v. Bird, 11 Mass. R. 436, 440.) [277] In the case of Cook v. Southwick, (9 Tex. R. 615,) it was held that where a person, not the payee of a note, signs his name upon the back of it, at the time of its inception, without any words to express the nature of his undertaking, he is liable as an original promiser or surety. And if the indorsement is without date, (as in this case,) it is presumed, in the absence of proof, to have been made at the time of the inception of the note. It is clear, that the undertaking of the appellant’s testator, therefore, was that of guarantor or surety. In that character, he was not entitled, under the Law Merchant, to protest and notice; nor, under the Statute, to require that suit should be brought against the maker, to the first Term of the Court after the maturity of the note. Occupying upon the paper the character of surety, he was entitled to all the privileges of that character. He could require that the principal be first or simultaneously sued. But mere forbearance to sue the principal, or mere delay, without fraud or agreement with the principal, does not discharge the surety. (Id. 620.) The mere failure of the plaintiff to sue the principal by the first Term of the Court after the maturity of the note, therefore, did not operate a discharge of the liability of the appellant’s testator. And the charge and rulings of the Court, upon that subject, are, therefore, immaterial. The objection to the admissibility of the note in evidence, is answered by the fact, that it conformed strictly to the description of it in the petition. And the objection to the insufficiency of the evidence, to show an equitable ownership, and right to sue in the plaintiff, is obviated by the admissions of the answer of the defendant; in which it is averred that the note was obtained by the plaintiff’s testator in payment of a debt. The latter, it thus appears, gave a valuable consideration, whereby she became the equitable owner, and entitled to maintain the action, upon the principle of repeated decisions of this Court, in which it has been held, that the person in whom is either the legal or equitable title, may maintain the action in his own name. [278] It is objected that the defendant, in her representative capacity, could not bind the estate by her admissions in pleading. It does not admit of question, that it was competent for the defendant to make admissions, which would dispense with proof of the plaintiff’s title. The right to sue, and the liability to be sued, the right to litigate in a representative character, necessarily implies the right to bind the estate, generally, and in the absence of fraud, in the same manner and to the same extent, in conducting the prosecution or defence of a suit, as other litigants may bind themselves. Otherwise the judgments of Courts, in cases where executors and administrators are parties, would be of no validity or binding force, whether rendered for or against estates. The same rules must apply, in general, to the pleadings of persons litigating in a representative character, as to those litigating in their own right. This results, necessarily, from the right thus to litigate. There is no error in the judgment, and it is affirmed. Judgment affirmed.