[But if such endorsement be made after the note is passed to the payee, or if there be no evidence to show that the person so endorsing intended to make himself responsible to the payee, no action can be maintained by the payee against such endorser. (a)]

opinion of the Court. "Under the count on the guaranty the evidence offered was admissible, unless indeed, the promise is within the statute of frauds. I confess, I do not perceive that this case is at all within the statute; the defendant's promise is not to pay on the default of Brundige, but is an original undertaking; and the defendant is as much holden as if he had signed the body of the note." Nelson v Dubois, 13 Johns. R. 175.]

[(a) See Herrick v. Carman, post.

R. and J. Houghton the makers of a note, being applied to by Corbin, the agent of Hodgkins, the payee, for payment, offered security, if farther time should be given. They then procured Bond to endorse his name on the note; and Bond said that he was holden. Corbin some time after wrote a guaranty over Bond's name; and Hodgkins sued Bond as guarantor. Bell J. said, "This is not an action against the party to the original contract. The undertaking of the defendant must be considered as collateral to the original undertaking. It was strictly a promise to pay an existing debt of another." The court held that the action was not maintainable, because there was no memorandum in writing signed by the party, within the meaning of the statute of frauds. Hodgkins v. Bond, 1 N. Hamp. 284.

But in a similar case in Massachusetts, the promise of the guarantor was held not to be within the statute of frauds. Ulen held notes of Butman payable to himself. Kittredge, in consideration of farther time being given, agreed to become security, and endorsed the notes in blank; and being requested by Ulen's agent, to write something over his name, he answered that his name was enough, and that if he wrote it in full, it would not make it stronger. Ulen sued Kittredge as guarantor. By the Court. "We are of opinion that the defendant's name endorsed, with the authority given by him to the plaintiff's agent, to write over it a sufficient guaranty, such guaranty being accordingly written by him, may be considered as a memorandum signed by the party, within the intent of the statute, as fully as if it had been written in the defendant's presence immediately after the signature. And parol evidence was as well admissible to prove this authority, as it is in any case upon a promise in writing, to prove the hand-writing." Ulen v. Kittredge, 7 Mass.. R. 233.

Wheeler agreed to sell goods to Moore and Abdy on their giving a note with a good endorser. They afterwards brought him a note signed by them payable to Wheeler, and endorsed in blank by Tillman, and Wheeler then sold them the goods entirely on the credit of Tillman. Wheeler sued Tillman as guarantor; and obtained a verdict in the C. Pleas. Yates J. delivered the opinion of the Court. "For aught that appears Tillman may have put his name on the note as second endorser, on the responsibility of the payee; this is the legal presumption from the appearance of the paper, without any explanatory proof, or a special undertaking on the part of Tillman, who does not appear to have known anything of the original contract between the drawers and payee; nor

If a bill or note is payable to several persons, not in partnership, the right to transfer is in all collectively, not (16) in any individually.

And an endorsement by and in the name of one only, will not give the endorsee a right to sue. (16)

So if a bill is drawn on several persons not connected in partnership, an acceptance by one will bind him, but him (17) only.

[If one of several persons, jointly liable on a bill or note, whether partners or not, dies solvent, and the survivors become insolvent, the assets of the deceased are liable in equity to the payment of the bill or note. (a)]

Sect. 5.-Each partner has in general a power to bind the partnership, and therefore a bill or note by one, or an endorsement or acceptance by one, will in general bind all. (18)

Can the court infer from any thing in the case, that he was privy thereto." Judgment reversed. Tillman v. Wheeler, 17 John. R. 326.] (16) Carvick v. Vickery, Dougl. 2d edit. p. 653. n. 134. A bill was drawn by father and son, who were not partners, payable to their own order. The son alone endorsed it, and upon an action by his endorsee against the acceptor, Lord Mansfield thought an endorsement by both parties essential, and nonsuited the plaintiff. A new trial however was afterwards granted, the court, after time taken to consider, being of opinion that by making the bill payable to their own order, the father and son had made themselves partners as to this transaction; but upon the second trial Lord Mansfield said he did not think the question so decided as to preclude evidence which was offered, that by the universal usage and understanding of all the bankers and merchants in London the endorsement was bad, as not being signed by both the payees, and the jury, unâ voce, declared that that was the usage and understanding, and without hearing any evidence upon the point they found a verdict for the defendant.

[ Where a note is payable to two joint executors, one of them cannot transfer the note by his separate endorsement. Smith v. Whiting, 9 Mass. R. 334.]

(17) Bull. Nisi Prius, 279. In the case of two joint traders, an accepttance by one will bind both; but if ten merchants employ one factor, and he draw a bill upon them all, and one accept it, this shall only bind him, and not the rest. Mar. 2d ed. 16. Beawes, 228. 1st. ed. p. 444. Molloy, b. 2. c. 10. § 18.

[(a) Jenkins v. De Groot, 1 Cain. Er. 122; Van Reimsdyk v. Kane, 1 Gallis. 630.]

(18) Mason v. Rumsey and another, 1 Campb. N. P. C. 384. A bill

And a note by one, importing to be for all, may bind the partnership, though it begin, "I promise." (19)

[But the partner signing is also liable as a several promiser. (a)]

And a bill or note by one in the partnership name will, as between them and an innocent holder, bind the partnership, though the partner making it was prohibited from drawing bills or notes. (20)

was drawn on "Messrs. Rumsey and Co."; and T. Rumsey, jun. wrote upon it "Accepted, T. Rumsey, sen." The present action was defended by T. Rumsey, jun. who contended that even if he were a partner, (which he denied,) this acceptance would not bind him. Lord Ellenborough told the jury, that if the defendants were partners, they were both bound by this acceptance. He said the word accepted" alone would have been sufficient, and that the effect could not be altered by the addition of "T. Rumsey, sen." The jury found for the plaintiff; and on motion afterwards for a new trial, on the ground of the evidence of partnership not having been sufficient, the court held the Chief Justice's direction right, and refused a rule.

(19) Lord Galway v. Matthew and another, 1 Campb. N. P. C. 403. This was an action against the defendants as surviving partners of T. Whitsmith, on a note drawn thus: "Sixty days after date, I pay Ld. Viscount Galway, or order, £200, value received. For J. Matthew, T. Whitsmith, and T. Smithson (Signed) "J. Matthew." Lord Ellenborough held that it bound the whole firm. S. C. 10 East's Rep. 264. This signature by the one (presuming his authority) is a good signature by all. See Wilks v. Back, 2 East Rep. 142.

[(a) W. Smith, a partner in a country bank, signed notes for himself and partners, beginning, "I promise to pay," and signed "For W. Smith, W. P. Smith, and W. R. Taylor, W. Smith." W. Smith was sued alone upon these notes. He pleaded in abatement that he promised jointly with W. P. Smith and W. R. Taylor. But the court held that he was liable as a several promiser. Hail v. Smith, 2 Dow. & Ryl. 584. 1 Barn. & Cres. 407.]

(20) Swan and others v. Steele and Wood, 7 East Rep. 210. The house of Wood and Payne carried on under the same firm and at the same counting house, two trades, those of wholesale grocers and cotton dealers. The defendant, Steele, was a secret partner in the latter trade, but not in the former. The house was indebted to the plaintiffs, as grocers, and to pay this debt Wood and Payne, without the knowledge of Steele, endorsed to the plaintiffs a bill which they had received on account of the cotton concern. The bill was endorsed in the usual firm of W. and P., and Steele's being a partner was unknown to the plaintiffs. Wood and Payne afterwards became bankrupts, and Payne being dead, this action, by the plaintiffs as endorsees of the bill, was brought against Steele and Wood; and on a case reserved, the only question was, whether the endorsement were good: and the court held the case too clear for argument; and Lord Ellenborough said, that in the absence of all fraud on the part of the endorsee there was no doubt that such endorsement would bind all the partners. Postea to the plaintiffs.

Or though the particular bill or note were a fraud upon the partnership. (21)

But such bills or notes will not bind the partnership as to persons who when they took them knew of the want of authority; (22)

Or of the fraud. (23)

If one partner give a partnership-bill or note for his own private debt without the knowledge of the partnership, it is a fraud upon the partnership. (23)

(21) Ridley and another v. Taylor, 13 East's Rep. 175. Ord and Ewbank were linen drapers and partners. The plaintiffs, in Nov. 1806, sold a cargo of coals to Ewbank for £34. 118., and Ewbank in May following gave them £5 in part payment, and a promissory note for the balance. This note was dishonored; and in payment of this balance, Ewbank, on the 7th of Nov. 1807, gave the plaintiffs a bill for £40, dated 20th of October, 1807, drawn and endorsed by him in the partnership name, and accepted by the defendant. The bill was drawn, endorsed, and accepted, before it was produced to the plaintiffs, and it did not appear that they knew that it had been drawn and endorsed by Ewbank. Ewbank afterwards applied to the plaintiffs for the difference between the balance due, and the £40, but they refused to pay it until payment of the note. This bill was dishonored; and the plaintiffs in their account debited Ewbank for the amount. Ord and Ewbank afterwards became bankrupt, and the plaintiffs now sued the defendant as acceptor. A verdict was found for the plaintiffs, subject to the opinion of the court of King's Bench on a case, stating these facts. The court held, that in this case, there being no evidence of covin between the plaintiffs and Ewbank to defraud Ord, and no such gross negligence on the part of the plaintiffs in not inquiring whether Ewbank had authority to transfer the bill, as to render the transaction fraudulent, the plaintiffs were entitled to recover, and they held, that Ord or Ewbank might have been called to disprove Ewbank's authority. The plaintiffs had judgment for the amount of Ewbank's debt.

(22) Lord Galway v. Matthew and Smithson, 10 East's Rep. 264. The defendants and Whitehouse (since deceased) were in partnership as brewers. Matthew applied to the plaintiff to lend his acceptance for £200, to enable him to pay excise duties due from the house, and promised in return to give the note of the firm payable four days before the acceptance. The plaintiff gave his acceptance, and Matthew drew the note and signed it for himself and partners. He then got the acceptance discounted, and applied £130 in payment of partnership debts, reserving the rest to himself. The plaintiff (after Whitehouse's death) was obliged to take up his acceptance, and now sued the defendants on the note, Matthew suffered judgment by default. But Smithson proved that the plaintiff before he took the note had received notice of an advertisement by him warning persons not to trust Matthew on his account, and that he would no longer be liable for drafts drawn by the other partners on the partnership account. And Lord Ellenborough held that the plaintiff having taken the note after such warning could not recover, and therefore nonsuited him; and on motion to set aside the nonsuit the court held it right, and refused a rule.

And though an innocent endorsee may be able to inforce payment the creditor cannot. (23)

And in such case, if an action be brought by such creditor, notice need not be given him that the consideration will be disputed; the nature of the transaction is sufficient notice to him. (23)

[And a person endorsing such a note as surety believing

(23) Shirreff v. Wilks and others, 1 East's Rep. 48. In October, 1795, Bishop and Wilks, who were then partners, became indebted to the plaintiffs for goods sold and delivered. Robson became a partner with Bishop and Wilks, in April, 1796, and continued so until the 8th November following, when the partnership was dissolved. On 5th November, 1796, the plaintiffs drew on the partnership for the amount of their demand against Bishop and Wilks, and Bishop accepted the bill in the partnership-firm. The plaintiffs now sued the three partners upon this acceptance. Bishop and Robson were outlawed; and Wilks pleaded the general issue. A verdict was found for the plaintiff, subject to the opinion of the court. Lord Kenyon said he did not know how the case came to be reserved, as he had repeatedly decided the same question at the sittings; the propriety of which decisions had not been canvassed. He said, the consideration of the bill was goods sold to Bishop and Wilks only, when Robson was not a partner. "Then the plaintiffs, knowing this, draw the bill on the three partners, and knowingly take an acceptance from one of them, to bind the other two, one of whom, Robson, had no concern with the matter, and was no debtor of theirs; no assent or knowledge on his part being found. The transaction is fraudulent on the face of it." The other judges concurred. Postea to the defendant.

Hope v. Cust, B. R. M. 1774, cit. per Lawrence J. in Shirreff v. Wilks, 1 East's Rep. 53. Fordyce traded on his separate account, as well as in partnership with others, and being indebted to Hope on his separate account, gave him a general guaranty in the partnership name for his own debt. Lord Mansfield left it to the jury, whether the taking of the guaranty were, in respect of the partners, a fair transaction; or covinous, with sufficient notice to the plaintiff of the injustice and breach of trust Fordyce was guilty of in giving it. The jury found for the defendant.

See also Pinkney v. Hall, 1 Salk. 126. S. C. Lord Raym. 175., and Wells v. Masterman and another, 2, Esp. N. P. C. 731; [and Baird v. Cochran, 4 Serg. & Raw. 397; Livingston v. Hastie, 2 Cain. R. 246; Lansing v. Gaine, 2 Johns. R. 300.]

Green v. Deakin, 2 Stark. 348. Hickman owed Green money, and gave him a draft for the amount in the name of himself and his two partners, Deakin and Bickley: neither Deakin or Bickley knew of the giving of this draft, nor had this been done with their concurrence; Green was not apprized that the other partners were ignorant of the transaction, and it was urged that Deakin should have given notice of his intention to dispute the consideration; sed per Lord Ellenborough, the transaction is intrinsically notice: one partner has no right to bind another without his knowledge by drawing in the partnership name før his private debt. Nonsuit.