PACKARD vs. LIENOW. ment and its objects, as might be thought best by a majority in value, conforming themselves to the conditions on which the government of the United States might grant a commission as aforesaid. The action was tried upon the general issue, before the Chief Justice, at the last November term in this county, when the plaintiff proved that he was appointed agent by all concerned in the private armed vessel called the Curlew; and that, at a meeting of the owners, the defendant being present, he, the plaintiff, stated that the sum of $1000 per share was expended, and that the vessel could not go to sea without an additional expense; and he was thereupon directed to make as many new shares as would defray the additional expenditure, and get the vessel to sea as soon as possible; which shares were not and could not have been sold. He also proved, that he had necessarily expended so much, as that the whole expense apportioned upon the number of shares actually subscribed was $ 1151.86, instead of $1000. The defendant insisted, that, by the terms of the association, he was bound to pay only the sum of $1000, and that, having paid that sum, as appeared by the receipts of the plaintiff in the case, no action would lie against him for any additional sum. The jury were instructed, that, if they believed that the defendant knew, when the vessel sailed, that shares enough were not subscribed to cover the expense at $1000 for each share, and that he had, nevertheless, consented that the vessel should go to sea, he was liable for such additional sum, * above $1000, as would [13] be his proportion of the additional expense; for which sum and interest the verdict was returned. The defendant thereupon. moved for a new trial, on the ground of a misdirection of the judge. J. T. Austin, for the defendant. G. Blake, for the plaintiff. DEWEY, J., delivered the opinion of the Court. The defendant objects to the directions of the judge, because, he says, that, by the terms of the agreement entered into between him. and his associates, it was expressly stipulated that no more than $1000 dollars should be paid on each share, and that, having paid that sum, he is not liable to pay any additional expenses; that the company did not direct the plaintiff to advance more money for them; but to raise it by the sale of additional shares. Under the original agreement, had nothing more been done by the defendant, he could not be compelled to contribute towards any expenses incurred beyond the amount raised by the subscription. If that sum proved insufficient to accomplish the proposed object, he had a right to say he would be no further answerable for any expenditures that might be made; and the act of a majority of those concerned could not operate to make him chargeable. UPHAM US. PRINCE. But, when the defendant and the other owners were informed by their agent, the plaintiff, that the money raised on the original shares was wholly expended, and that more was necessary to fit the vessel for a cruise, they directed the plaintiff to make new shares, to raise money upon them, and to get the vessel to sea as soon as possible They did not direct him to detain the vessel until the new shares were sold, and the money realized; but to get her to sea as soon as possible. In pursuance of these instructions the plaintiff, by advancing his own money, sent the vessel to sea, but was unable to sell any more shares. * We are all satisfied, that the directions given to the jury were perfectly correct; that, if the defendant consented to the sail[*14] ing of the vessel, knowing at the time that the whole expense was not covered by the shares then subscribed at $1000 on each share, he was liable to the plaintiff for his proportion of the money advanced above the amount of the shares subscribed for. And we think the facts stated in the case sufficient to justify the finding of the jury. The plaintiff does not appear to have been a party to the original agreement, nor to have had any interest in the vessel; being only the agent of the company. The defendant was present when notice was given to the owners that the money raised on the original shares was expended, and when the plaintiff was directed to get the vessel immediately to sea; and it might well be presumed by the jury that she sailed with the consent of the defendant, and that he had a full knowledge of the deficiency of the subscriptions to defray the ex. pense. On these grounds it is just and reasonable that the plaintiff should recover of the defendant his proportion of the money advanced for him; it having been found to be impracticable to obtain it in the way proposed. Judgment is, therefore, to be entered according to the verdict.t t Helme vs. Smith, 7 Bing. 709. SAMUEL UPHAM versus ANDREW H. PRINCE. Where the promissee of a negotiable promissory note, payable on demand, indorsed it thus, I guaranty the payment of this note within six months," he was held liable to the holder of the note, as upon a common indorsement. ASSUMPSIT upon the defendant's indorsement of the following promissory note, namely; "Boston, March 23, 1809. For value received, I promise to pay Mr. Andrew H. Prince, or order, on UPHAM vs. PRICE. of two hundred and ninety-eight dollars, with in Stephen D. Turner." Indorsed thus, "Boston, I guaranty the payment of this note within six demand, the sum In a case stated by the parties it was agreed, that, on the 25th of March, 1809, the said note was transferred to one Luther Faulkner, in payment of a smaller sum, and the balance ($50 or $60) was then paid to the defendant, Prince, who at the same time subscribed the writing on the back of the note. Afterwards the same was transferred by said Faulkner to the plaintiff, as col- [*15] lateral security for a bonâ fide debt. Turner, the promissor, was called on, in a day or two after the indorsement, for payment; and he was afterwards sued upon the note to judgment and execution; but no satisfaction was obtained. The defendant left the country soon after the date of the indorsement, and was absent until more than six months had elapsed. Upon his return he was notified of the nonpayment of the note by Turner ; and, a fruitless demand having been made upon him, this action was instituted. If, upon these facts, the Court should be of opinion that the plaintiff was in law entitled to recover, the defendant agreed to be defaulted; if otherwise, the plaintiff was to become nonsuit. Rockwood, for the plaintiff. Heard and Sohier, for the defendant. Per Curiam. It is contended by the defendant in this case, that the writing on the back of the note, to which is affixed the signature of Prince, the promissee, is of a different nature from a common indorsement, and that it made a contract merely between Prince and Faulkner, to whom he transferred it, which was not transferable in its nature by Faulkner. Whatever effect such a writing on the back of a note might legally have, beyond that of an assignment of the note, we do not think it necessary to decide. But we are all of opinion that the note did not lose its negotiability by this special indorsement, any more than it would if it had been indorsed with the words, "without recurrence to the indorser," which is a common form of indorsement where the indorser does not intend to remain liable. The defendant's engagement amounts to a promise that the note should at all events be paid within six months. Now this promise may not be assignable in law; and yet the note itself may be assignable by the party to whom it was so transferred, so that, upon nonpayment of it by the promissor, the holder would have a right. of action against * Prince as indorser. † A demand was [*16] Quere, whether the writing upon the note was not a special guaranty, requiring a Bonsideration to support it, and available only to the party to whom it was originally PARKER US. LINCOLN & AL. made upon the promissor within a short time after the date of the note; and notice was given to the indorser, as soon as he returned to this country, he being absent during the whole of the six months the note was to run. It does not appear that he had any dwellinghouse or place of business here while he was absent, so that a call upon him as soon as he returned was all that could be done or required. We think, upon the facts agreed, that the defend ant must be called. † Defendant defaulted. made, and not to the bearer? Taylor vs. Binney, 7 Mass Rep. 479.- Brown vs. Gilman, 13 Mass. Rep. 158. — Tenney vs. Prince, 4 Pick. 385; and whether the obligations arising from a common indorsement could be implied? Sullivan vs. Whiting, 7 Mass Rep. 107. — Aldridge & Higdon vs Turner, 1 G. & J. 427. Bailey on Bills, 281-284, 5th ed. Chitty on Bills, 213, 6th ed. on Bills, 443-536. Thompson DANIEL P. PARKER versus MITCHELL LINCOLN AND JAMES S. TROTT. Where a mortgage is made to an infant having a legal guardian, and the mo gagor or his assignee would redeem, it is proper to join the infant and the guardian in a bill brought for that purpose. The Court will, however, appoint some other suitable person, who has no interest in the business, as guardian to the infant, to defend his interest in the suit. THIS was a bill in equity, in which the plaintiff sets forth, that, in December, 1808, one Rachel Thaxter, being seized in fee, as tenant in common with the said J. S. Trott, of one undivided third part of a certain messuage and land in Boston, by her deed of bargain and sale duly executed, conveyed the same to the said Trott, then and still a minor under the age of twenty-one years, for whom the said Lincoln then was and ever since has been guardian, to hold the same to the said Trott, his heirs, and assigns, in fee and in mortgage, for securing the payment of $750 in two years with interest, according to the tenor of a bond of the same date, &c. The plaintiff then alleges a purchase by him of the equity of redemption, remaining in the said Rachel, at a sheriff's sale, under an execution against her and in favor of one Jones; and that immediately afterwards he gave notice to the defendant, Lincoln, of his said purchase, and that he was ready and willing to pay the amount due on said mortgage, and requested the said Lincoln to inform him what sum was due thereon, that he might pay the same and redeem the said mortgaged premises; but the said Lincoln then and there declined and neglected so to inform him, or to give him any account thereof. The plaintiff then alleges a tender to the said Lincoln of $1000 in satisfaction PARKER US. LINCOLN & AL. of said mortgage, with a demand of an * account of any [*17] payments received on said mortgage, as also of the rents and profits of the estate, over and above the repairs, &c., and that he offered the draught of a release to be executed by the said Lincoln, and requested him to execute the same. Yet the said Lincoln refused to exhibit such account, to accept the said money in satisfaction of the said mortgage, and to execute the said release. The plaintiff brings into Court the said sum of $1000, that the same, or such part thereof as the Court shall order, may be paid over to re said Lincoln or Trott, or to any person entitled thereto under the said mortgage; and prays relief in the premises, and that the said Lincoln or the said Trott may be held to account, &c., and that he may recover possession of the premises, and for his costs, &c. The defendant, Lincoln, appeared, and in answer to the said bill demurred in law, assigning for causes of demurrer, first, that he is not a mortgagee or vendee, claiming the mortgaged premises by force of the deed of mortgage set forth, or of any deed of mortgage, nor is he a person holding or claiming said premises under such mortgagee or vendee; secondly, that it appears by the complainant's bill, that the said Trott was, at the time of the execution of the said mortgage, and on the day of the teste of the said bill, and still is, a minor, under the age of twenty-one years; thirdly, that infants or guardians are not within the provisions of the statute of 1785, c. 22, entitled, "An Act giving remedies in equity," or of the act or acts in addition thereto; nor are such provisions binding on them or either of them. There was no appearance on the part of Trott, the other defendant; whereupon it was moved by the counsel for the plaintiff, that the Court here would appoint him a guardian. Prescott and Shaw, for the plaintiff. Townsend appeared for the defendant, Lincoln. JACKSON, J. It is not doubted that an infant may be a mort gagee at common law; and there is nothing in our statutes or usages to make it otherwise here. Whether he is the [*18] original grantee, or takes the estate by descent, he is bound by the conditions contained in the conveyance. must be good in the whole, or void in the whole. The mortgage deed If Trott, the minor, had not had a guardian, he might have been made the sole defendant in this bill, and the Court would appoint him a guardian for this cause. It is still necessary to appoint such a guardian, notwithstanding Lincoln, his legal guardian, is made a defendant. For the latter is not, strictly speaking, sued as guardian, and, if he had had no personal concern in the transactions in question, |