Smith v. Gorton

Bullard, J., delivered the opinion of the court. This case cannot be distinguished from that of Guidry vs. Vives 3 Martin, N. S. 659, and does not differ materially 7 . J from that of Cooly vs. Lawrence, previously decided, 4 Martin, 639. We consider it now well settled, that when a person not a Patty to a bill or note, puts his name upon it, he is presumed to have done so as surety. The defendant admits that he endorsed the note in question, which was made payable to the plaintiff’s order ; but his counsel has endeavored ,to show, that his intention was to bind himself as endorser and not as surety, and therefore, was entitled to notice of demand on the maker, and non-payment. , We have not thought it necessary to inquire whether Lewis Gorton, the drawer of the note, was a competent witness, because his testimony taken on commission is before us, and would not in our opinion, if admitted,, sustain the defence. If the defendant supposed that he was binding himself only as endorser, it was an error of law on his part, and nothing shows that lie was led into the error by the plaintiff. It is, therefore, ordered, adjudged and decreed, that the judgment of (.he District, Court be affirmed, with costs.