Jennings v. Thomas

Citations

• 21 Miss. 617

Syllabus

<p>Where the name of one not the payee of a note, is written on the back of the note which is not indorsed by the payee, the nature of his liability to the payee, whether as joint maker, indorser or guarantor, will depend upon the circumstances of the transaction; and it is competent for the payee, in a suit upon the note against the party whose name was on the back of the note, charging him as joint maker with those who signed on the face, to introduce parol proof to establish that fact.</p> <p>Yet it seems, that, in the absence of all proof of the nature of the liability intended to be incurred, as a general rule, one who signs his name across the back of a note, is to be regarded in the light of an indorser.</p> <p>In a suit upon such a note, therefore, where the plaintiff had introduced proof with a view to show that the party who had written his name on the back was a joint maker, it was held error in the court below to have instructed the jury, that “ the evidence did not tend to show any liability of the defendant as maker of the note sued on, and they ought to find for the defendant; for if the court meant to say the plaintiff could not legally prove at all that he intended to become liable as joint maker, it mistook the law; and if it meant that the proof was not sufficient to establish the fact, it was charging on the weight of evidence.</p> <p>While it seems that the plaintiff can, in an action of assumpsit under the common counts, introduce proof, charging the defendant as indorser of a note, by showing demand of payment and notice of protest; yet, under our statute, he cannot do this without having filed with his common counts a bill of particulars.</p>