Dec. Term, 1828. The Judge charged the jury expressly to say by their verdict, whether Windsor was in truth set at large or not, and they have Turnbull and found, upon that point, against the plaintiff. Their verdict is fully supported by the evidence, and the motion must be denied. Phyfe v. Trout. Motion denied. [F. S. Kinney, Att'y for the plff. J. Greenwood, Att'y for Northam, S. D. Hewlett, Alt'y for Coggeshall.] JOHN TURNBULL & MICHAEL PHYFE. versus ROBERT TROUT. Where the maker of a promissory note endorsed the same for his own benefit in the payee's name, by virtue of a parol authority for that purpose communicated to him by the payee, it was held to be well endorsed; and that the payee was liable upon such endorsement, in the same manner, as if it had been made by himself with his own hand, It is not necessary that the authority by which one person executes a written agreement for another and in his name, should be in writing also; although such written agreement may not be for the benefit of the party bound by it. ASSUMPSIT brought by the holders of a promissory note against the defendant as endorser. The note purported to be drawn by one Richard H. Arnold in favour of the defendant, and to be by him endorsed. Plea, the general issue. Upon the trial, it appeared that the note was not endorsed by the defendant with his own hand, but his name had been written upon it by the maker, for his own benefit, with the assent of the defendant, and by virtue of a parol permission or authority, for that purpose communicated to him by the defendant. Under these circumstances, the counsel for the defendant contended, that a parol authority to endorse a note, given to pay the debt of another person, was void under the statute of frauds. But the presiding Judge (HOFFMAN) charged the jury, that if they believed that the defendant had given to the maker of the note authority to endorse it for him and in his name, that then the plaintiffs were entitled to recover, notwithstanding the authority was communicated by parol. The jury found for the plaintiffs and the defendant's counsel took exceptions to the charge of the Judge. Mr. J. Anthon for the defendant now moved for a new trial and contended, I. That the authority to sign the name of the defendant as proved in this case, was void by the statute of frauds. The parol authority was void in itself; for it would be a most mischievous evasion of the statute, if the authority might be communicated by parol, while the statute requires the agreement to be in writing. [10 Ves. 311. 18 Ves. 509. 1 Esp. R. 106. 2 Cown. 203. 7 T. R. 207. 7 Mass. R. 233. 1 Marsh, R. (Kentucky) 436. 2 Stark, 606. 1 Sch. & Lef. 22, 27. 31.] II. The authority was communicated to a person not capable of exercising it: it should have been given to some third person, and not to the party who was to receive the benefit. [5 Barn. & Ald. 333. 2 Camp. 203.] Mr. W. H. Bell for the plaintiffs. 1 This is not a case which falls within the statute of frauds, in any shape. It is not a collateral undertaking to pay the debt of another; but it is, in contemplation of law, a new and distinct promise from the endorser to the endorsee, for a proper consideration, to pay the note, if the maker did not. The undertaking of the endorser of a note, payable to order, is not to be considered as collateral, even if the endorsement were granted for the sole accommodation of the maker; for the note, when endorsed, is sent into the market, and becomes Dec. Term, negotiable; while a mere collateral contract can have no such 1828. Turnbull and V. Trout. currency. The fallacy of the argument on the other side consists in supposing that this is a promise to pay the debt of another person. The payee of the note is supposed to have endorsed it for a consideration received by him of the endorsee, and he becomes the drawer of a new bill upon the maker. His promise to pay is conditional, but not collateral: he stands not in the light of a mere surety, but as an original undertaker to pay the amount of the note, if the maker refuse. The maker of the note in this case, was the agent of the payee to endorse the same ; and it is admitted by the counsel for the defendant, that if the authority given to the agent for this purpose had been in writing, it would have been sufficient. Now there is nothing in the statute of frauds relative to the manner in which a principal must communicate his power to an agent; and it is well settled that the authority may be imparted in any manner susceptible of explicit proof. Suppose it were proved that a merchant was in the habit of allowing his clerk to endorse and negotiate notes received by him in payment for goods; would he not be bound by such endorsement, unless the holder could prove that the clerk had an expresss authority for this purpose in writing? - The argument for the defendant, when pushed to its consequences, proves too much, and it is evident, that a case like the present, cannot be within any of the objects of the statute. JONES, C. J., delivered the opinion of the court. This is an action of assumpsit on a promissory note by the holders, against the endorsers. The note was made by one Richard H. Arnold, for the payment of $169 89-100, to the defendant ninety days after date, and dated January 19th, 1828. It was admitted that the name of the defendant endorsed upon the note, was not written by the defendant himself, but by Arnold, the maker. And it was alleged, that the same was so written and endorsed by Arnold, with the assent and by the authority of the defendant, and proof was offered to show the authority. 1828. Turnbull and V. One witness testified to the admission of the defendant, that he Dec. Term. had authorized Arnold, the maker, to endorse his name upon the note, and that if it had been brought to him, he would have writ. ten his name upon it himself. Some evidence was offered on the part of the defendant tending to show that this conversation had reference to a different note: and evidence was also produced by the plaintiff, conducing to the conclusion that the maker had the authority of the defendant to make the endorsement. The question upon the testimony was left to the jury, who gave a verdict for the plaintiff, thereby establishing the fact, that the note was endorsed by the authority of the defendant, and the point on which the defendant now relies for his defence is, that a parol authority to endorse a note for the debt of a third person, which he affirms this to be, is void under the statute of frauds. This point was raised at the trial, and overruled by the judge, and it now comes before us on an exception to his opinion. I state the exception in the terms of the case; but it is observable, that the facts disclosed to us do not bear out the position it assumes, that the note in question was given for the debt of a third person, within the meaning of the statute. On reference to the case, it appears that the note was drawn by Arnold in favour of Trout, the defendant, and passed by the maker with the name of Trout upon it, as endorser to the plaintiffs for what consideration, whether in payment of an antecedent debt, or for value received upon the credit of the paper itself, at the time of the negotiation for it, does not appear. But it is a negotiable note in the hands of an endosee, and in the absence of all proof to the contrary, must be taken to have been negotiated by the maker for value in the usual course of business, and the question will be whether payment of such a note can be successfully resisted by the defendant on the ground taken upon the argument. In support of the objection, it is contended, I. as a general proposition, that the engagement of the endorser of a promissory note, is a collateral undertaking within the statute, to answer for the debt of another, and to be obligatory, must be in writing. Dec. Term, 1828. Turnbull and v. Trout. II. That the authority of an agent to endorse for his principal must also be in writing, as a parol authority would introduce the very mischief against which the statute is intended to provide. III. If such parol authority is good, it can only be so when given to a third person, who is not to be benefitted by the exercise of the power; and from these premises the conclusion is drawn, that the authority in this case being by parol and to the person, whose debt the endorsement guaranteed, that authority was invalid. I cannot accede to the views taken by the defendant's counsel of the nature of the endorser's engagement, nor to the opinion, that the authority to endorse the note was void, because it was by parol. The only engagement of the endorser is for the payment of the note he endorses; and when he is the payee, (as, in the regular course of negotiating, the first endorser generally is,) the note is payable to himself, and is his own debt. When he transfers it to another by endorsement he assigns or passes over to his endorser the note or debt thus due, and payable to himself; and the legal effect of his endorsement is to superadd his own personal obligation as endorser for the payment of the note to the endorsee. This is the process and legal operation of the transfer of the note by endorsement as between the maker, the payee and the endorsee of the note. And to this pure unmixed case of the note of a maker to a payee and endorsed by the payee to an endorsee, who continues as the holder, we must look for the true nature and legal effect of the engagement of the endorser. In it no feature of an undertaking of the endorser to answer the debt of a third person within the meaning of the statute for the prevention of frauds, is discernable. It is the transfer in such cases permitted by law, of the debt (which the note makes payable to him,)by him to the transferee; and the obligation the endorsement creates is, that the debt thus transferred by him to the endorsee, in case of the non-payment of the maker at the maturity of the note upon demand, shall upon due notice of the maker's default be paid by him (the endorser) to the holder. There is no debt due, or owing, or about to be contracted by the maker of the note to the endorsee, for which the payee thus gives his en |