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against him

of such endorsement being made before the body of VIOLETY the note was filled up by the plaintiff and signed by PATTON. Brooke, is no bar to the plaintiff's recovery in this action; although the jury should be satisfied that no his insolvency other value was received by the defendant for his renders a suit endorsement than the credit thus given by the plain- unnecessary. tiff to Brooke. And further, that the endorsement It is a question to, be left to by the defendant with the intent aforesaid, if proved, the jury whe authorized Brooke to make the note to the plaintiff ther a suit ain the form and manner in which it appears upon the ker would have gainst the maface of it to be made; and that the circumstance produced the that the body of the note was in the hand-writing of money.. the plaintiff, was wholly immaterial to the present issue.

The second bill of exceptions stated, that the defendant prayed the court to instruct the jury that if they should be satisfied by the evidence that Brooke, at the time the note became payable, or at any time. previous to the commencement of this action, had property sufficient to pay the debt claimed by the plaintiff, and that both he and the plaintiff lived in the town of Alexandria at the time the note became due, and that the plaintiff brought no suit against Brooke to recover the amount of the note, but suffered him to leave the district of Columbia, without suing him or if the jury should be satisfied that the plaintiff and Brooke have, since the note became due, both lived in the county of Fairfax, in Virginia, and have continued to reside there until the bringing of the present suit, and that the plaintiff has not brought suit against Brooke in Virginia, then the defendant is not liable in this action. But the court refused to give those instructions as prayed.

:

E. f. Lee, for the plaintiff in error.

1. The endorsement, being on a blank piece of paper, and delivered with intent to give credit to Brooke, but without an express authority to him to fill up the paper with a promissory note, did not authorize him so to fill it up. But if Brooke was so authorized, Patton was not. There does not ap

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pear to have been any communication between Patton and Violett upon the subject.

The cases of Russel and Langstaffe, Doug. 514. and Collins v. Emett, 1 H. Bla. 313. do not apply; because in those cases it appears that the body of the note was filled up by the person authorized, and who was to use it for his benefit; and because the principles of those cases are not drawn from the common law, but from the custom of merchants, which is not applicable to promissory notes in Virginia, which are there placed upon the same footing as bonds, and subject only to the same common law principles.

2. There was no consideration from Patton to Violett. The defendant in error must show a good and valuable consideration. Chitty, 9. 4 Mod. 242. 1 Strange, 674. Buller, 274. 2 Bl. Com. 445. 1 Fonb. Eq. 331, 332. 335, 336. 7 Term Rep. 350. Rann v. Hughes.

A consideration which will support an assumpsit must be either a benefit to the defendant, or a prejudice to the plaintiff; but here Violett received no benefit, and Patton no prejudice.

It does not appear that Patton gave a credit solely in consequence of Violett's endorsement. On the contrary, there was no communication between them, so that there was no undertaking on the part of Violett to Patton, except what the law implies from the endorsement; and that implication is founded upon a presumption that the endorsor received value, and can be extended no farther than the value received.

It does not appear that Patton would not have credited Brooke without Violett's endorsement.

not

3. The endorsement, being in blank, was a writing signed by him; and the undertaking being to pay the debt of another, is void by the statute of frauds of Virginia.

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At common law the holder of the paper had no right to fill up the endorsement so as to make it a PATTON. promise in writing. Such a right in mercantile cases is founded only on the custom of merchants. The undertaking in writing must set out the precise terms of the promise, as well as the consideration. Prec. Ch 560. Strange, 426. 1 Atk. 13. 5 East, 10. Wain v. Warlters. Brooke was clearly liable for this debt. And it is laid down as a principle, that if he for whose use the goods are furnished be liable at all, the promise of a third person must be in writing, or it is void. Roberts, 209. But if this is a parol promise, it must be made to appear that the credit was given to Violett alone. 1 H. Bla. 120. 2 Term Rep. 80.

4. Violett is not liable, if Brooke, at the time the note became due, and at the time the suit was brought, had property sufficient to pay the amount of the note, and Patton did not at any time bring suit against Brooke.

In Mackie v. Davis, 2 Wash. 219. it is decided that the holder of a bond must use due diligence for the recovery of the money. In Lee v. Love, 1 Call, 497. the assignee of a note must sue the maker before he can resort to the endorsor.

The case of Fenwick v. Barkesdale, decided in the court of appeals in Virginia, in October, 1803, affirms the general doctrine laid down in Mackie v. Davis, and shows that a suit is necessary, and is the only kind of diligence which is meant.

It also proves that it is not sufficient to show that the maker of the note was not able to pay all his debts; but the plaintiff must go further and show that he was not able to pay the particular debt due to him by the note.

The oath which is taken under the insolvent law. of Virginia, shows what is meant by the term insol

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vent. He must swear that he is not worth 30 dollars, exclusive of his wearing apparel.

The insolvency of the drawee of a bill is no excuse for neglect to give notice of its dishonour. Chitty, 88. Doug. 497.515.

Swann, contra.

The case of Russel and Langstaffe, Doug. 514. As clear as to the authority given by an endorsement on a blank piece of paper.

It is a letter of credit. The defendant has given the bearer of it authority to use it, and cannot deny the authority when it is executed. This is a mercantile transaction depending upon good faith, in which the want of consideration can never be alleged. 3 Burr. 1663. Pillans & Rose v. Van Mierop & Hopkins. It is a promise in writing, which is sufficient to take it out of the Virginia statute of frauds. The defendant cannot be permitted to say that the endorsement was blank, and the plaintiff had no authority to fill it up, unless he can show that the confidence he placed in Brooke and the plaintiff has been abused.

If the maker of a note be insolvent when the note becomes due, it is not necessary that the holder should bring suit against him. Brooke might have

had property enough to pay this note, and yet be insolvent: And it does not follow because he might have paid this note, that he would have paid it if suit had been brought, or that he could have been compelled to pay it.

Youngs, in reply.

No action can be sustained upon the endorsement of the note. The act of assembly respecting promissory notes gives no action against the endorIt only gives the assignee a right to recover in his own name against the maker. The action

sor.

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against the endorsor is only at common law, upon the ground that the consideration paid for the note PATON. has failed. The legislature of Virginia did not mean to extend the liability of the endorsor farther than that. They had the statute of Anne before them, but they did not choose to adopt it; they preferred to place notes in the class with bonds rather than with bills of exchange. The endorsor is liable only upon the principle of money had and received to the plaintiff's use. 1 Cranch, 298. Mandeville v.

2

Riddle. 2 Wash. 219. 221. Mackie v. Davis. Wash. 248. Norton v. Rose. If there be no consideration, if the defendant has never received value for the note, he is not liable upon any of the grounds stated in those cases. Between immediate parties. the want of consideration is always a good defence, even in England. Kyd, 276.

In an action against a surety for money had and received, you cannot recover if the money were received by the principal, although the surety join in giving a receipt for it. 2 Term Rep. 366. Straton v. Rastall.

In a written agreement to pay the debt of another, the consideration must be stated as well as the promise. 5 East, 10. Wain v. Warlters.

MARSHALL, Ch. J. Do you mean to state that if A. writes a letter to B. stating that if B. will let C. have goods, A. will pay for them if C. does not, A. would not be bound?

Youngs. Probably in that case it would be considered that the letter did state the consideration.

In the case of Clark v. Russel, 3 Dal. 415. it was decided by this court, that the whole agreement must be in writing, and that nothing oan be supplied by parol. It must be a complete agreement, or it will not support an action at law. And upon the count for money had and received, you must prove a consideration in money actually received by