majority">D ARGAN, C. J.

I think the case of Hullum v. The State Bank, 18 Ala. 805, is conclusive to show that there is no error in the case before us. In that case Hullum put his name on the back of a bill of exchange, that was over due and had been protested, and the testimony tended to show that he had endorsed his name on the bill upon a sufficient consideration, and intended to assume the character and position of an endorser whose liability was fixed. A majority of this court, as it was then organized, held, after all the consideration we were able to bestow upon the question, that inasmuch as Hul-lum had by his contract assumed the position and character of an endorser, whose liability was absolute, the holder of the bill might so treat him in his declaration.

So, in the case before us, the defendant intended to assume the character of a maker of the note, and his contract, by which he assumed that position, is founded on a legal consideration ; and again a majority of the court think that he may be so treated. Indeed, the only written evidence of the contract is his name to the note as a maker; how, then, did he intend to stand in reference to it? The answer must be, as a maker; that was then his contract, that he would be bound as one of the makers of the note, and I can see no injustice nor legal objection in allowing the plaintiff to treat him as a maker. I will not refer to the authorities in support of this position; they will be found in the case of Hullum v. The Bank, supra., and time and reflection have but confirmed me in the opinion I then delivered.

There is, however, another view of this case, which, in my judgment puts the question beyond doubt; there is no plea of non est factum, verified by affidavit; the defendant, therefore, has admitted .by the pleadings that he executed the note as *598described in the declaration; bis proof, therefore, conld only be received to show a failure of consideration, payment, &c., but not to show that be did not execute tbe note as alleged. But tbe proof, instead of showing a failure of consideration, shows a sufficient legal consideration; tbe contract, therefore, which is declared on, is admitted by the pleading, and the proof shows this contract to have been founded on a sufficient consideration; nothing more can be required to entitle the plaintiff to recover.

Let the judgment be affirmed.

LIGON, J.

It is the opinion of a majority of the court, that there was no error in the action of the court below, in refusing the charge asked, or in giving the one excepted to. Regarding the note as the best evidence of the intention of the parties to it, the conclusion is drawn, that as Tiller appears from its face to be an original promisor, the plaintiff below had a right to treat him as such, and sue him in that character. They deem the case of Hullum v. State Bank, 18 Ala. Rep. 805, a fair exposition of the law of such cases, and conclusive of this. In that case, the Chief Justice, after considering the objections, arising out of the proof, to the propriety of charging Hullum as an endorser, and proceeding against him as such, goes on to say, “I admit there is great diversity to be found in the authorities, respecting the nature and character of these irregular endorsements. But, after the best consideration I am able to give the question, I think the correct rule is this, that the nature of the contract and the extent of the liability of the party are to be ascertained by his intention, as shown by the evidence, in making the endorsement. If the party endorsing the note intended to create a liability as guarantor only, he must be so treated and so sued, to enable the plaintiff to recover; if he intended to create a liability as endorser, he must be so treated. This is the conclusion to which Judge Story came, after a review of most of the conflicting American authorities, Story on Prom. Notes, § 479. Governed by this rule, which is the principle that governs in all contracts, I feel constrained to hold from the evidence, that the defendant intended to stand in reference to the bill as an endorser whose liability was fixed. This is the *599nature and extent of bis contract in putting bis name on ibe back of tbe bill, and I see no reason why be should not be treated as sucb.” Tbe same conclusion is drawn in tbis case, ¿bat inasmuch as Tiller subscribed bis name to tbis note, be will be held to have intended to bind himself in tbe same manner, and to tbe same extent, that tbe original makers were bound.

"While I agree perfectly that the general rule is, as it is stated in tbe extract from tbe case of Hullum v. State Bank, yet, with all deference to tbe opinion of tbe Chief Justice, and tbe associate Judge who concurred with him in tbe decision of that case, I am constrained to deny that it was rightly applied in that case, or that tbe conclusion arrived at in tbis, is justified by the proof, or can be sustained either on principle or authority. In tbe case cited from 18 Ala. Rep. the objections to tbe conclusion of tbe majority, embodied in tbe dissenting opinion of Justice Chilton, appear to me unanswerable.

I am persuaded that tbe error, in both cases, arises from allowing too much weight to tbe written evidence of tbe contract between tbe parties, and attaching too little importance to tbe parol proof, by which that contract is explained and established. That a party must be charged in tbe character be assumes in bis contract, and to tbe extent to which be intended to bind himself, are propositions which I do not controvert. But that character and liability are both to be ascertained by tbe proof, not by tbe written evidence alone, but by all tbe proof in tbe case. Prima facie, in tbe case under consideration, Tiller is to be regarded as a joint, or a joint and several promisor with tbe Loftins; but when tbe testimony of Brown is beard, tbis prima facie presumption vanishes, and tbe true character of bis liability is revealed. What is it? That of guarantor, and tbe consideration of bis guaranty is, that Brown will not sue tbe Loftins, on their note to Mm, until after-tbe first of September, 1849, and as evidence of bis intention to be thus bound, be subscribes bis name to tbe note. The consideration for which tbe note was given would not, under tbe proof in tbis case, have been sufficient to charge Tiller with its payment, (and none other can be relied on by tbe plaintiff in bis present action,) for it is well *600settled, “ that if one promise, in consideration of a credit already given, or of a debt already existing, it is an executed or past consideration, and creates no liability on tbe part of tbe promisor.” Jackson v. Jackson, 7 Ala. Rep. 791, and authorities there cited. Here tbe negroes, which formed the consideration of the note given by Loftin to Brown, which is the foundation of this suit, had been delivered to Loftin at least nine months before Tiller ever saw Brown, or had any connection whatever with the transaction. The note had also been given, and was several months past due before his connection with it commenced.

I have made an extensive examination of cases analogous to this, and I have been unable to find one, (except that of Hullum v. State Bank,) in which a party, who has become bound to pay the debt of another which was past due when, for some new and sufficient consideration, he undertook to pay it, has ever been proceeded against as a joint promisor with the original maicer of the note. Such persons are invariably considered and treated as guarantors, and proceeded against accordingly. In such cases too, the plaintiff must aver and prove the consideration on which the guaranty is founded, or he cannot recover. Sage v. Wilcox, 6 Conn. 81; Tenney v. Prince, 4 Pick. 385; 1 Gill. & John. 427; 4 Johns. 280; Beebee v. Moore, 3 McLean 387; 1 Strobh. 40; 16 Ohio 1; 5 Smedes & Marshall 627.

That parol testimony is admissible, to prove the terms of such agreements, is abundantly shown by the case of Hullum v. State Bank, supra, and the authorities cited to this point. In this case it was received without objection, and, with the promissory note, formed all the proof in the case. The contract thus proved was different from the one declared on, and so long as we regard the rule that the allegata et probata must correspond in order to justify a recovery, I am unable to see how the charge of the court in this case can be sustained. The charge must be predicated on all the proof in the case, and had this rule been followed here, my decided opinion is, that the charge refused was the one which should have been given.

I should always distrust the accuracy of my conclusions, when they would lead to the solecism, not say absurdity, of *601bolding tbat a party could intend,’ by subscribing his name to a note four months after it was due, to bind himself to pay it on an antecedent day. And such is the case here; Tiller never saw or heard of the note sued on until June, 1849, when he subscribed his name to it, and yet, by the ruling of this court, and the court below, and in the face of clear and unequivocal proof to the contrary, it is held that he made it in October, 1848, and promised to pay the sum named in it on the first of February, 1849.

It is no answer to this to say, that he intended to bind himself for the payment of the whole sum due, with interest; this may be, and is admitted; but then he was not to pay, or be liable to pay it until after the first day of September, 1849 ; and when, in a declaration, he is charged with having agreed and promised to pay it on the first of February, 1849, he might well plead, that he did not undertake and promise in manner and form complained of, and the proof would abundantly sustain his plea.

The plaintiff would sustain no loss by being compelled to a non-suit, which his own temerity would not deserve. He must be presumed to have known the character of the defendant’s liability before he brought his action, and should be held to pursue him rightly; had he done so, he would have been compelled to have proved the consideration for the guaranty, but by being permitted to maintain his present action, he is relieved from the onus of such proof.

The record does not advise us what pleas were interposed in the court below; but it has been held in this court, that when the judgment entry shows that the parties appeared, and there is a finding by the jury, this court will presume it was on a proper issue, although no plea appears in the record, Lucas v. Hitchcock, 2 Ala. Rep. 287.

In ascertaining what plea was proper in the court below, so that it may be supplied by presumption or intendment in this court, I know no better rule by which to be guided, when the bill of exceptions sets out all the testimony, and it is shown that none of it was objected to by the counsel of the party against whom it was offered, nor ruled out by the court, than to conclude that such proof was pertinent to the issue made by the plea. Guided by this rule in the present case, it *602is fair to presume, tbat tbe defendant below bad interposed tbe plea of want-of consideration. If this be so, then the case of Jackson v. Jackson, 7 Ala. Rep. 791, is an authority directly in point to show tbat tbe plaintiff below could not recover in bis action on tbe note.

Thus, whether tbe plea be non assumpsit or want of consideration, tbe proof in tbe record, which was received and allowed to go to the jury without objection from any quarter, in my opinion clearly shows, that the plaintiff is not-entitled to recover in this action.

I do not think it necessary further to extend this opinion; but differing as I do from the conclusion to which a majority of my brethren have arrived, I could not, in justice to tbe view I entertain of tbe law of tbe case, remain silent or say less.

CHILTON, J. concurs with Ligón. J.

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