parol evidence was inadmissible to vary the legal effect of this indorsement.

This point rests mainly upon the construction to be given to the Minnesota Statute of Frauds, and this is a literal transcript from the N. Y. Revised Statutes.

The construction of that Statute has been settled in favor of the plaintiff in error.

Min. Rev. Stat., 268, sec. 281-282; 2 N. Y. Rev. Stat., 135, sec. 2, subdivision 2; Hall v. Newcomb, 7 Hill, 416; Spies v. Gilmore, 1 N. Y., 324; Dunham v. Manrow, 2 N. Y., 553; Brewster, v. Silence, 8 N. Y., 207; Ellis v. Brown, 6 Bard., 282; Waterbury v. Sinclair, 16 How. Pr., 329.

2. Marshall & Co. are not chargeable as makers of the note in question. In support of this propostion, we refer to the preceding point and authorities cited.

If parol evidence is inadmissible to change the contract of indorsement into a guaranty, it is equally inadmissible to change it into an ab solute original promise. In so changing the contracts, not only must the promise be supplied by parol, but the consideration also.

This would, in effect, be a repeal of the Statute of Frauds.

Hall v. Farmer, 5 Den., 484; Bradford v. Martin, 3 Sand., 647; Story Prom. N., sec. 134. In England it has long been held, that not only the promise must be in writing, but the consideration must be expressed in the instrument itself.

Wain v. Warlters, 5 East, 10; Saunders v. Wakefield 7 B. &. A., 595; Morley v. Boothby, 3 Bing., 107.

The Statute of Frauds in those States in which the courts have dissented from the above doctrine, is in its language essentially different from the Statute of Minnesota.

3d. The record shows that no agreement or

496: Arnold v. Bryant, 8 Bush., 668; Van Doren v. Tjader, 1 Nev., 380; Champion v. Griffith, 13 Ohio, 228; Chandler v. Westfall, 30 Tex.. 477; Watson v. Hunt, 6 Gratt., 633; Orrick v. Colston, 7 Gratt., 189. As a guarantor, if payee so elects, Burton v. Hansford, 10 West Va., 470; or if he write over a guaranty, Killian v. Ashley, 24 Ark., 515.

It is held in New York and some other States, that an indorsement of note, before its delivery to payee, will be presumed to be, in absence of evidence of the intention, for the accomodation of payee, and is an indorsement subsequent to the payees that indorser knew that the payee must indorse note before it became operative. Such an indorser cannot be held liable at the suit of the payee or of any person who has taken note of payee either after maturity, or with knowledge of the facts. Coulter v. Richmond, 59 N. Y.. 478; Dale v. Moffitt, 22 Ind., 114; Frear v. Dunlap,1 Iowa, 335, changed by law of 1851; Knight v. Dunsmore, 12 Iowa, 35; Marienthal v. Taylor, 2 Minn., 147; McComb v. Thompson, 2 Minn., 139; Jennings v. Thomas, 13 Sm. & M., 617; Fegenbush v. Lang, 28 Pa. St., 193; Eilbert v. Finkbeinner, 68 Pa. St.. 243; Cady v. Shepard, 12 Wis., 642; 13 Wis., 229: 18 Wis., 554; Lester v. Paine, 37 Barb., 617; Bacon v. Burnham, 37 N. Y.,614; Phelps v. Vischer, 50 N. Y., 74.

As between the parties, oral evidence is competent to show the circumstances of the giving of the note, its consideration and its indorsement, and that the indorsement was given to give the maker credit with payee. It is sufficient to show that it was indorsed with knowledge that the indorsement was required to give the maker credit. Meyer v. Hibsher, 47 N. Y., 265; Gfroehner v. McCarty, 2 Abb. N. C., 76; Draper v. Chase M'f'g Co., 2 Abb. N. C., 79; Smith v. Smith, 37 Superior Ct., 203; Coulter v. Richmond, 59 N. Y., 481; Moore v. Cross, 19 N. Y., 227: Clothier v. Adriance, 51 N. Y., 322; Austin v.

contract has ever been written upon the back of the note, other than the mere indorsement. The indorsement is still in blank. The position of the Marshalls is that of second indorsers only. The note is negotiable, but they are not the payees. There are numerous cases which establish the rule that whenever the note is negotiable-payable to a third person or order, and is indorsed by a person other than the payee, he is not to be treated as an original promisor or maker, nor yet as guarantor, but simply as indorser.

Seabury v. Hungerford, 2 Hill, 84; Hall v. Newcomb, 3 Hill, 233; Ellis v. Brown, 6 Barb., 282; Hough v. Gray, 19 Wend., 202; 7 Hill, 416 to 426, note; Spies v. Gilmore 1 N. Y., 321; Cottrell v. Conklin, 4 Duer, 45; Taylor v. MeCune, 11 Pa., 461; Crozer v. Chambers, 1 Spencer (N. J.), 256; Fear v. Dunlap, 1 Greene (Pa.), 334; Story Bills, sec. 134. 4. The complaint is defective.

Even this child of modern improvement, the complaint, must be sensible and state facts sufficient to constitute a cause of action, or like the somewhat discarded commonlaw declaration, the party must fail. An indorsement is a contract of transfer, by which the indorser contracts with, and in favor of the indorsee and every subsequent holder, and the note must be transferable or there is no legal indorsement.

Now, to enable Simpson to sue the Marshalls as indorsers, they must first have been either payees or indorsees, and thereby been able to transfer the note by indorsement; but the complaint shows the reverse of this.

See Waterbury v. Sinclair, 16 How, Pr., 329. Moreover, no case can be found under any system of pleading, where the plaintiff has been allowed to recover against the defendant as guarantor, where the complaint was against

Boyd, 24 Pick., 64; Luft v. Graham, 13 Abb. Pr., N. S., 175.

If transferee knew note was indorsed before payee overwrote his indorsement, he must, to recover of the original indorser, give the same extrinsic evidence which the payee would have to give. Phelps v. Vischer, 50 N. Y., 74.

The Supreme Court of the United States holds the irregular indorser an original promisor, a guarantor, or an indorser, according to the nature of the transaction and the understanding of the parties. Oral evidence is admissible to show the intent and understanding. If the indorsement was made to give the maker credit with the payee, or if indorser participated in the consideration of the note, he is to be considered a joint maker. If the indorsement was after the note was delivered to payee, at request of maker to procure further indulgence or forbearance for the maker, he can only be held as guarantor, and there must be legal proof of a consideration to uphold the promise unless it be shown that he was connected with the inception of the note. If note was intended for discount, and indorsement was to be inoperative until after payee indorsed, he is liable only as second indorser. Good v. Martin, 95 U. S. (5 Otto), 90, and cases cited; Aff'g, 1 Col., 165; 2 Col., 218; Schneider v. Schiffman, 20 Mo., 571; Irish v. Cutler, 31 Me., 536: Hawks v. Phillips, 7 Gray, 284; Pierse v. Irvine, 1 Minn., 369; Perkins v. Catlin, 11 Conn., 212.

Oral evidence is admissible to show when indorsement was made. In absence of evidence, undated indorsement will be presumed to have been made at inception of note. Good v. Martin, 95 U. S. (5 Otto), 90; Badger v. Barnabee, 17 N. H., 120; Martin v. Boyd, 11 N. H., 387; Parkhurst v. Vail, 73 Ill.. 343; Childs v. Wyman, 44 Me., 441; Gilpin v. Marley, 4 Houst., 284; Massey v. Turner, 2 Houst., 79.

him as indorser only. A guaranty is a special contract, and must be specially declared on. Lamourieux v. Hewett, 5 Wend., 307; Miller v. Gaston, 2 Hill, 188; Ellis v. Brown, 6 Barb., 285.

Complaint is also defective on account of defect of parties. There is no joint cause of action stated in the complaint against the two Marshalls and Rey.

See Allen v. Fosgate, 11 How. Pr., 218.

The demurrer does not admit the truth of the allegation and the complaint as to the purposes for which the defendants, Marshall & Co., indorsed the note, and of the reliance of the plaintiff upon the indorsement; because those allegations are not a statement of facts, but are merely matters of law. The Code in Minnesota requires that the complaint should state the facts constituting a cause of action. Under this Statute the conclusion of law and matters of argument are not allowed to be stated, and the demurrer does not admit them to be true.

See Barton v. Sackett, 3 How. Pr., 358; 1 Chit. Pl., 213, 214 and 541; Story Eq., Pl., sec. 452, cases cited; Hall v. Bartlett, 9 Barb., 297.

Messrs. Joseph H. Bradley and M. E. Ames, for the defendant in error:

If in any case it is competent to show by parol, an agreement collateral to a bill of exchange or promissory note in their ordinary form, the facts admitted in these pleadings would be such a case, as understood by the counsel for the plaintiffs in error.

This court has settled that question in Phillips v. Preston, 5 How., 278; but in this case, the commercial contract of an indorser of a promissory note never was complete. The indorse ment was made before the title had ever passed by the indorsement of a payee, and even before the note had been delivered to the payee, and it is admitted to have been done for the purpose of guaranteeing the payment thereof to the payee; in such case, the party who puts his name on the back of the paper authorizes the payce to write over it such words as may be necessary to embody the contract between them, and he may be treated either as a guarantor or as a party to the original undertaking. The current of decision is unbroken except where there are peculiar circumstances to modify, not to make them exceptions.

32 Me., 339; 36 Me., 147, 265; 1 N. H., 385; 11 N. H., 385; 7 Fost., 366; 9 Vt., 345; 12 Vt., 219; 16 Vt., 554; 17 Vt., 285; 7 Mass., 232; 9 Mass., 313; 11 Mass.. 436; 19 Pick., 260; 24 Pick., 64; 24 Pick., 264; 8 Met., 504; 9 Cush., 104; 6 Conn., 317-320; 11 Conn., 213, 440; 13 Johns., 175; 14 Johns., 249; 1 Hill, 91; 7 Hill, 422; 17 Wend., 214, 215; 4 Watts., 448: 13 Penn., 446; 9 Ohio, 39; 13 Ohio, 328; 2 McL., 553; 13 Ill., 682; 1 Man., 428; 2 Mich., 555; 18 Mo., 74, 140; 5 Ben., 371; 2 Gill., 330; 6 Gill., 181, and authorities in Yellot's argument; 2 McCord, 388; 9 Tex., 615; 2 Cal., 485, 605; Story Prom. N., secs. 457, 469, 475, 476, 579, 480.

The contract is not prohibited by the Minnesota Statute of Frauds. The note itself shows the consideration. Every man who indorses such a paper, thereby promises to answer for debt, default or miscarriage of the maker." It is a note or memorandum expressing the

consideration, that is, forbearance to the maker, and is in writing by the party to be charged thereon. It is a contract of suretyship, plain, intelligible and well understood. It is put on this note for some purpose, for the very purpose which would be implied in an ordinary indorsement, except as to the person to whom, and for whom they are to be surety, and this may be proved by parol.

Bateman v. Phillips, 15 East, 272.

It is conceded in the argument, that where a person at the inception of a note not negotiaable, indorses his name in blank on the back, he is liable as maker, and so as to notes made payable to bearer, or to A. B. or bearer. The indorser may be made liable to the payee, and to cases of negotiable paper indorsed in blank, after the same became due, but it is insisted there is a distinction between such paper, and negotiable paper.

The case of Tillman v. Wheeler, 17 Johns., 326, relied on by the plaintiff, was a case on a contract similar to the present, except that there was no proof of any privity or contract between payee and indorser, and on that ground alone the court decided he could not be held as guarantor.

It is submitted that these admissions cover this case. At the inception of this note, the defendants, Marshall & Co., indorsed their name in blank on the back of this note, when it was neither negotiated to them nor by them, and when, in point of fact, it was not negotiable, because it was still in the hands of the maker, and was not, and could not be negotiable until it was delivered to the payee.

See authorities first above cited.

It would exhaust the patience of this court to present any analysis of these cases, but it may be affirmed that they establish three propositions:

First. Whenever a man puts his name on the back of a promissory note, whether negotiable, assignable or transferable by delivery while it is in the hands of the maker, he intends to make himself reponsible for the default of the maker.

Second. In some cases that responsibility is to be worked out in favor of the payee by writing over the name of the indorser, his guarantee, or other form of obligation, and this may be done at any time before judgment.

Third. In others, it is held (and this seems to be the most just and rational result of all the cases) that such an indorsement is in itself (it being proved to have been made before the note was delivered to the payee, and that the note was never parted with, or indorsed by him) a guaranty by the indorser of the payment of the note to the payee; but the form is of little moment, and if the substance is, that it is or can be treated as a guaranty, this court will look to the substance and finally settle this question which has so long disturbed the judicial mind of the country.

Mr. Justice Clifford delivered the opinion of the court:

This is a writ of error to the Supreme Court of the Territory of Minnesota.

According to the transcript, the suit was commenced by James W. Simpson, the present defendant, on the 21st day of December,

Whatever diversities of interpretation may be found in the authorities, where either a blank indorsement or a full indorsement is made by a third party on the back of the note, payable to the payee or order, or to the payee or bearer, as to whether he is to be deemed an absolute promisor or maker, or guarantor or indorser, there is one principle upon the subject almost universally admitted by them all, and that is, that the interpretation of the contract ought, in every case, to be such as will carry into effect the intention of the parties; and in most instances it is conceded that the intention of the parties may be made out by parol proof of the facts and circumstances which took place at the time of the transaction. Story on Promissory Notes, secs. 58, 59, and 479.

When a promissory note, made payable to a particular person or order, as in this case, is first indorsed by a third person, such third person is held to be an original promisor, guarantor, or indorser, according to the nature of the transaction and the understanding of the parties at the time the transaction took place. If he put his name on the back of the note at the time it was made, as surety for the maker, and for his accommodation, to give him credit with the payee, or if he participated in the consider ation for which the note was given, he must be considered as a joint maker of the note. On the other hand, if his indorsement was subse quent to the making of the note, and he put his name there at the request of the maker, pursuant to a contract with the payee for further indulgence or forbearance, he can only be held as a guarantor. But if the note was intended for discount, and he put his name on the back of it with the understanding of all the parties that his indorsement would be inoperative until it was indorsed by the payee, he would then be liable only as a second indorser in the commercial sense, and as such would clearly be entitled to the privileges which belong to such indorsers. Decided cases are referred to by the counsel of the defendants, which seemingly deny that such parol proof of the attending circumstances of the transaction is admissible in evidence; but the weight of authority is greatly the other way, as is abundantly shown by the cases cited on the other side. Whenever a written contract is presented for construction, and its terms are ambiguous or indefinite, it is always allowable to weigh its language in connection with the surrounding circumstances and the subjectmatter, and we see no reason, as question of principle, why any different rule should be adopted in a case like the present. Such evidence has always been received in the courts of Massachusetts, as appears from numerous decisions, and the same rule prevails in most of the other States at the present time. 1 Am. Lead. Cas., 4th ed., 322. Repeated decisions to the same effect have been made in the courts of New York, and until within a recent period it appears to have been the settled doctrine in the courts of that State.

Recent decisions, it must be admitted, wear a different aspect; but they have not had the effect to produce a corresponding change in other States, and in our view, deny the admissibility of parol evidence in cases where it clearly ought to be received. Hawkes v. Phillips, 7 Gray, 284.

Applying these principles to the present case, it is obvious that the contract of the two defendants whose firm name is upon the back of the note was an original undertaking, running clear of all questions arising out of the Statute of Frauds.

They placed their names there at the inception of the note, not as a collateral undertaking, but as joint promisors with the maker, and are as much affected by the consideration paid by the plaintiff, and as clearly liable in the character of original promisors, as they would have been if they had signed their names under the name of the other defendant upon the inside of the instrument. Numerous decisions in the state courts might be cited in support of the proposition as stated, but we think it unnecessary, as they will be found collated in the elementary works to which reference has already been made, and in many others which treat of this subject.

Another objection to the right of recovery in this case deserves a brief notice. It is insisted by the counsel of the defendants that the complaint or declaration is not sufficient to maintain this suit against these defendants as original promisors. That objection must be considered in connection with the system of pleading which prevailed in the courts of the Territory at the time the suit was commenced. By that system, suitors were only required to state the facts which constituted the cause of action. In this case the plaintiff followed that mode of pleading, and we think he has set forth enough to constitute a substantial compliance with the law of the Territory and the practice of the court where the suit was instituted. He alleges, among other things, that the defendants, whose firm name is on the back of the note, placed it there for the purpose of becoming sureties and security to him as payee for the amount therein specified. That allegation, to use the language of the Statute of Minnesota, is expressed in ordinary and concise language, and in such a manner as to be easily understood, and that is all which is required by the law of the Territory prescribing the rules of pleading in civil cases. Under the system of pleading which prevailed in the courts of the Territory, the objection cannot be sustained.

The judgment of the Supreme Court of the Territory is, therefore, affirmed with costs.

Denied-39 Am. Rep., 108 (74 Ind., 529). Cited-95 U. S., 94; 6 Sawy., 101; 6 Am. Rep., 413 (35 Mad., 262); 10 Am. Rep., 261, 263 (35 N. J. L., 517); 27 Am. Rep., 574 (10 W. & A., 470); 27 Am. Rep., 785, 789 (1 Lea, 649).

GAINES, AND MARIA GAINES, HIS WIFE; ALBERT BELDING; HENRY BELDING AND GEORGE BELDING, Heirs and Legal Representatives of LUDOVICUS BELDING, Deceased.

(See S. C., 22 How., 144-161.)

Entry, sufficient to sustain ejectment in Arkansas- -New Madrid certificate-plaintiff must claim right under Act of Congress, to give this court jurisdiction-claim of defendant, in answer, not sufficient.