9 N.C. 590 | N.C. | 1823
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-
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
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.
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
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