Ingersoll v. Long

• Decision Date: 30 June 1839
• Court: North Carolina Supreme Court
• Parties: WILLIAM J. INGERSOLL v. NICHOLAS M. LONG.

20 N.C. 436

WILLIAM J. INGERSOLL

v.NICHOLAS M. LONG.

SUPREME COURT OF NORTH CAROLINA

JUNE TERM, 1839

Endorsers—Liability as Sureties.

1. The Act of 1827, 1 Rev. Stat., ch. 13, sec. 11, making the endorsers of negotiable notes liable as sureties applies in those cases only where not only the endorsement in question, but all the antecedent endorsements (not expressed to be without recourse) have been made within this State.

2. The object of the Act of 1827, 1 Rev. Stat., ch. 13, sec. 11, making the endorser of a negotiable note liable as surety, was not to bind him as though he had signed the note with the maker as surety—not to make him liable to the endorsee if the endorsement were made without consideration; nor to deprive him of the protection which the acts of limitation had extended to endorsers; but simply to change the engagement which the law theretofore implied from an endorsement not expressed to be without recourse into an engagement to pay the note to the holder at all events if the maker did not pay it.

THIS was an action of assumpsit, submitted to his Honor, Judge Saunders, at Northampton, on the last Fall circuit, upon the following statement of facts as a case agreed:

"On 7 February, 1837, William K. Paulding, of Greensborough, Alabama, made, at that place, his promissory note to Benjamin G. Shields, for $3,168, negotiable and payable at the Branch of the Bank of the State of Alabama, at Mobile, on 1 January, 1838. This note was afterwords endorsed in blank by Shields, the payee, at the said Greens-borough, at which place he was a resident, and passed with suchendorsement, in Alabama, to the defendant Long, for a full and valuable consideration by him paid therefor. And the said Long afterwards, being in Halifax, North Carolina, where he resided, passed the same to John D. Amis, with his endorsement in blank, and for a valuable consideration. Amis being a citizen of Mississippi, carried out the note so endorsed and passed the same to one H. W. Carter, cashier of a bank in Columbus, Mississippi, and by him the note was endorsed and sent to the plaintiff cashier of a bank in Mobile, and the said Carter filled up the previous endorsements before transmitting the said note to the plaintiff, by whom it was received in Mobile on 10 January, 1838, enclosed in a letter of Carter's, dated 21 December, 1837. On 31 January the plaintiff presented the note at the bank in Mobile at which it was made payable and demanded payment, which, being refused, he caused the same to be protested by a notary public, who the same day put notices of the dishonor of the note in the postoffice, directed respectively to the first, second, and third endorsers, at their several places of residence."

The plaintiff sought to recover of the defendant on his endorsement the principal and interest of the said note, as a surety of the maker, and

it was agreed that if the defendant was, in the opinion of the court, liable, then judgment should be entered for the plaintiff for the sum of $3,168, with interest from 7 February, 1837. If the court should be of a contrary opinion a judgment of nonsuit was to be entered. It was further agreed by the parties that the law merchant, as adopted by and making part of the law of England, was the law of Alabama. His Honor, upon this case, being of opinion in favor of the plaintiff, gave judgment for him, from which the defendant appealed.

GASTON, J. If this case come within the operation of our act of 1827, 1 Rev. Stat., c. 13, s. 11, the plaintiff is entitled to judgment; but if it do not, then, according to the agreement of the parties, theremust be a judgment of nonsuit. We have heretofore had cause to regret that the statute in question was expressed in such general and obscure terms as not to afford to those whose duty it is to execute the law, the means of knowing with certainty the intention of the law-makers. We feel the same regret on this occasion, because in regard to the matter now before us, there is at least equal danger of mistaking that intention.

Before the passing of the act of 1827 the law implied from the endorsement of a negotiable note an engagement, from the endorser, similar to that which the law of merchants imposed on the drawer of an accepted inland bill of exchange. He engaged that the maker of the note should pay it, if presented at the time and place when the same was made payable, and if the maker made default that he would pay the same if notified of that default, and required to make payment without delay. We have held, Williams v. Irwin, 3 Dev. and Bat., 74, that the object of the act in declaring the endorser liable as surety, was not to bind him as though he had signed the note with the maker as surety—not to make him liable to the endorsee, if the endorsement were made without consideration, nor to deprive him of the protection which the acts of limitation had extended to endorsers—but simply to change the engagement which the law theretofore implied from an endorsement not expressed to be without recourse into an engagement to pay the note to the holder, at all events, if the maker did not pay it. In coming to this conclusion we did not advance any pretension to deny operation to the statute where it was productive of absurd consequences, but in the construction of vague terms we considered ourselves bound to presume that the Legislature intended nothing plainly repugnant to justice and public convenience.

Our purpose was to give full operation to all that the Legislature willed, but, at the same time, not to intend, from an affected or superstitious veneration for the semblance of their will, thai to have been enacted, which we believed they did not mean to enact, and therefore, in fact, had not enacted. Their meaning was the whole end, aim and object of our inquiry.

Pursuing the present investigation in the same spirit I thinkthat we shall be brought to the conclusion that the act of 1827 does not operate upon an endorsement, where it cannot operate upon the preceding endorsements. The endorsement of a note previously negotiated without the State is not, in the opinion of the Court, distinctly embraced within the words of the act, and was not within the view of its makers. The language of the enacting clause is "that where any bill, bond, or promissory note, made negotiable by the act of 1762, entitled, etc., or by the act of 1786, entitled, etc., shall be endorsed after the first day of July next, such endorsement, unless it be otherwise plainly...