Carroll v. Weld

Catón, J. Pricket and Hawkins executed their note to Weld, for the purchase of some goods. He, not being satisfied with their responsibility, refused to take the note unless Carroll signed it with them. Carroll then put his name on the back of the note, when it was delivered to the payee. Here, Carroll was an original party to the note, and the original consideration for the note was the consideration for his undertaking. It was not necessary that he should participate in or receive any part of the consideration. His undertaking induced the payee to accept the note in payment of the goods sold", and that was sufficient. The only question which was seriously urged upon our consideration in the argument, was as to the character and nature of the liability assumed by Carroll. He was sued, as guarantor of the note, and now he insists that he only assumed the liability of second indorser. This is a question which has been long since settled in this court, and we see no cause to limit the liability as there established. In the case of Camden v. McCoy, (3 Scam. 437,) it was held that, where the name of a party is found on the back of a note, in the hands of the payee, the presumption of law is, that it was put there at the time of the execution of the note, and that, in the absence of proof to the contrary, it is a further presumption that he assumed to guarantee the note; and, in the subsequent case of Cushman v. Dement, (3 Scam. 479) the same rule was adopted and enforced. In these cases, it was also decided, that these presumptions might be rebutted by proof showing the actual character of the transaction. In this case, there is proof sustaining these presumptions of law, or rather showing that the understanding, at least on the part of the payee of the note, was, that the liability of Carroll should be even more than that of a guarantor; for he required that Carroll should become a surety in the note. In the two casesjj^P referred to, this court followed the decisions of the Supreme Courts of New York and Massachusetts, as well as those of several other distinguished tribunals; and now we are asked to retrace our steps, because a different rule for a time prevailed in New York. We have examined the several decisions of the case of Hall v. Newcomb, (3 Hill, and 7 Hill, 416,) and find nothing in them which at all inclines us to change the rule in this court. The last was in the Court of Errors, where the case was twice argued. Upon the first argument, that court was equally divided; and upon the second argument, a very large minority of the court were for adhering to the ancient and true rule upon the subject. In the cases already referred to, in this court, the subject was fully examined, and we do not feel called upon to review the authorities again. Let the judgment be affirmed. Judgment affirmed.