#### DAVID CARPENTER, et al. v. WILLIAM WALL.

Where a purchaser of property, in payment therefor transferred to the vendor notes upon third persons, and upon being requested to endorse the notes for the purpose of enabling the vendor to sue in his own name, refused 'to do so, but said “ they were good,” it was held, that the words, “ they were good,” used in the manner they were, did not furnish any evidence of a promise to-make the notes good. ,

Whether such words, if they amount to a promise to make the notes good, do not come within the act of 1826, Rev. Stat. ch. 50, sec. 10,) declaring that “no action shall be brought, whereby to charge the defendant upon any special promise to answer the debt, default or miscarriage of another person, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party charged therewith, or some other person thereto by him lawfully authorized.” Q.U.1?

The defendant purchased of the plaintiffs a tract of land and paid for the same in notes and judgments on third persons, some of which securities ultimately proved unavailable. This was an action of assumpsit, in which the plaintiffs declared on a verbal guaranty, made by the defendant of the goodness of the notes and judgments. Plea — non assump-sit. On the trial at Anson, on the last circuit, before his Honor Judge Nash, it appeared that at the time when the notes and judgments were passed, it was proposed by a witness who was present, that the defendant should endorse the notes to enable the plaintiffs to sue in their own names. The defendant said he would not endorse them, “ but they were good.” It was at that time supposed by all the parties that the notes and judgments were good. His Honor left it to the jury to say, whether the defendant meant to guaranty the goodness of the papers passed ; if so, they were at liberty to find for the plaintiffs. The jury found a verdict for the plaintiffs, and the defendant submitted a motion for a new trial, “ because the Court ought to have told the jury, that there was no evidence before them to prove a guaranty ; and therefore that the Court erred inleaving it to them.” *145The motion for a new trial was overruled, and judgment pronounced, from which the defendant appealed.

Dec. 1838.

Aguaranty'is a P™™esre the pay-some pe°r-fo™anca qj some duty, in MureVf18 yho is the first in-ble^oWch anee.

if a vendor from^tho purchaser the note of a third per-tfm/onha ®®*®¿ ^®11 being.forg-there being [e°ltfrna,“ad.a' represen-, tationon the part of the purchaser as the ®°1' vency of the maker) eVto'have the vendor tfonVnlesa *ebce0"“a Pres|1(|r pr°ve "

Mendenhall, for the defendant.

Winston, for the plaintiffs.

Daniel Judge,

after stating the case as above proceeded as follows : —A guaranty is a promise to answer for the payment of some debt, or the performance of some duty,-in case of the failure of another person, who is himself in the first instance liable to such payment or performance. Tell on Guaranties, 1. Smith on Mercantile Law, 277. The evidence shows that the defendant expressly refused to endorse. Did the words, “ but they are good,” which he appended to this refusal, amount to a promise that he would guaranty the goodness of the paper transferred/ The Judge left it to the jury to ascertain whether the defendant intended to bind himself as guarantor by using these words. We think, that the words used in the manner they were used, did not furnish any evidence of a promise to make the notes and judgments good. We understand the true rule on this point to be. that if a vendor receive from the purchaser the „ ; . . , . , , f , note oí a third person at the time of the sale, (such note not being forged and there being no fraudulent misrepresentation on the part of the purchaser as to the solvency of the maker,) it is deemed to have been accepted by the vendor in satisfaction, unless the contrary be expressly proved. Whitbeck v. Van Ness, 11 Johns. 409. There is another point which on a subsequent trial may be worthy of • • n „ „ x , , ' •', examination. Our act of 1826 declares, that “no action shall be brought whereby to charge any executor or administrator upon a special promise to answer out of his 1 1 / ’ estate, or to charge the defendant upon, any special promise to answer the debt, default or miscarriage of another person, unless the agreement upon which, such action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party charged therewith, or some other person thereto by him lawfully authorized.” 1 Rev. Stat. ch. 50, sec. 10. The point to which we would draw attention is, whether the claim of the plaintiff, is not upon a verbal guar*146anty, within the meaning of this statute, and therefore that a recovery cannot be had on it.

There must be a new trial.

Per Curiam. Judgment reversed.