
    Mott against Hicks.
    An action corporation, pfe°n ofjts anthoriwhen acting Jcope’ofthek6 gitimate pur¿^poratíon!1 . A corpora-itself "by' Ccm!fact without its corporate seal, it may f“'® ^“otiaMe note; bejn° the word Pers°n<as use<1 of 3 and 4 ^ R" L‘ Where the th^Woodstock Glass ComPany executed a promissory °°^ ^® for
    Assumpsit, tried before his honour, Mr. Justice WooniVORTH, at the New- York Sitting's, April 15,1822.
    The following is an abstract of the declaration, so far as it Is material to the questions in the cause:
    
      1st Count. That the defendant, on the 25th day of April, 1816, was anxious to purchase from one Isaac F. Roe, a quantity of fire wood, for which he demanded a large sum of money, viz. $948TVV, and, after various negotiations, he agreed to sell, and the defendant to purchase the wood at $948J/o, to be paid for by a note of the defendant, to bé made payable at a certain day, and to be endorsed for the better security of Roe : That the defendant, in order to carry this arrangement into effect, made a note, dated the day J J before stated, for $948,65, payable six months afterdate, to Israel Horsefield, or order, and endorsed by him, and then undertook and faithfully promised the plaintiff, that, if he would also indorse it, the defendant would deliver over to him, for his indemnity, the first parcel of glass which he should thereafter receive from the Woodstock Glass Company, of which the defendant was president: In consideration of which promise, the plaintiff did endorse the note, and was -afterwards compelled to pay it, with costs of suit. This count also contained averments of receipts of the glass and r ° non-delivery, &c. 2d count. That, on the same day, the defendant made his promissory note, and thereby, six months after the date, promised to pay Israel Horsefield, or order, 
      %, for value received, which note was afterwards duly endorsed by ilorsefield; that the defendant, being anxious to negotiate the note, and requiring, for that purpose, an additional endorser, applied to the plaintiff to indorse ; and promised the plaintiff, if he would endorse, that he (the defendant) would deliver into his hands,' for his indemnity, the first- parcel of glass he (the defendant) should thereafter receive from the Woodstock Glass Company, of which he was president; that.the plaintiff, relying on this promise, endorsed the note, and was afterwards compelled to pay it, with costs of suit. This count also contained the same averments- as the last, relative to the glass, &c. The 3d count was, in all things, the same as the^rsZ, with this difference, that the defendant was set forth as the President of the Woodstock Glass Company, and, as such, anxious to purchase the wood-, arid contracting for it as such ; and, as such, making the note by which the company promised to pay ; and then individually promising the plaintiff to indemnify him, in consideration of -his endorsing, &c. The 4ih count was the same as the second, with the same variations as in the last. 5th count, that the defendant made his note, and thereby, “ by the name and description of the President, Directors and Co. of the Woodstock Glass Company,” promised to pay Israel Horse-field, or order, as before. It then averred, that the defendant was anxious that the plaintiff should endorse the note, and promised him, if he would indorse, to save him harmless frorti any loss or damage by reason of such indorsement. This count averred the plaintiff’s endorsement, in consideration thereof; and that he (the plaintiff) was afterwards compelled to pay, with costs, and the defendant did not indemnify, &c. The 6th count was the same as the 5th, alleging’ that the defendant made the note as president of the company, and, thereby, the President, Directors and Co. of the' Woodstock Glass Company promised to pay, with like averments. The 1th count- was the usual one by the plaintiff, asfi-rst endorsee, against the defendant as maker of the note-The 3th count was for money paid, laid out and expended j. the 9th for money-had and received; and the 10ih on- an in* simul computassenl.
    
    Wood furnished them t‘o use in the manufacture of glass; held, that the company were liable.
    Corporations may be thus bound by a promissory note, without a. special clause in the act of incorporation, giving them power to issue notes, such as are found in bank charters; several instances whereof were referred' to in arguing this cause.
    Where such a note was made to J. H. or order, who-endorsed it thus—“J. H. agent;*’ held, that though nothing appeared to shew that he was, in fact, agent, yet he was not liable as endorser; for though payee he has a right to make a special indorsement so as to avoid personal liability, and put his name upon the note for the purpose of passing the interest therein
    Plea—The general issue.
    
      Upon the trial, the plaintiff offered Isaac Wright, as a witness, who proved the hand writing of the maker and endorsers of a promissory note, in the following words:
    “ New-York, 4th mo. 25,1816.
    Six months after date, The President and Directors of the Woodstock Glass Co. promise to pay Israel Ilorsefield, or order, nine hundred forty eight dollars value received,
    and another, nothing more.
    Such an indorsement is equivalent to a declaration, that the indorser will not be personally liable ; es-
    pecially, where the indorsee has notice of the original transaction. And it seems there would be enough on the face of the paper, to put any one on inquiry, so that no holder could recover against J. H. as indorser.
    
      Whiiehd. Hicks, President.
    
      {Endorsed,)
    
    “ Israel Ilorsefield, agent.
    “ Jordan Mott.” ■ ,
    
    It is analogous to a special endorsement, declaring that the note shall be at the risk of the endorsee, in which case the endorser would not be liable ; and therefore, one making such a special endorsement, is a competent witness for his endorsee in an action by him against the maker ; or against any one who had guaranteed the payment of the note to such endorsee, in behalf of the maker ; but it would be otherwise, in both these instances, if the endorsement were absolute.
    Where a note was made by a corporation, payable to J. H. or order, who, as agent, endorsed it to M, and one W. H. agreed with M, that if he would endorse to R, he (W H.) would, on receiving certain glass of the maker, deliver the same to M, to hold as an indemnity for his i Vi’s) endorsement; and M endorsed accordingly, and the note was protested and R recovered of M, as endorser; in a suit by M against W. H. upon the guaranty ; held, that J. H. not being liable as endorser, was a competent witness for the plaintiff. But if J. H. had been liable as endorser, he would not be a competent witness. He would not, in such a case, be indifferent between M and W H. as being liable to one of them at all events, upon the ground'that W. H. being a surety, might be entitled to stand in the place of M, on paying the debt; for W. H. would be liable, only upon the condition of first receiving the glass, as a fund for the payment; which would bar a recovery by him against J. H.
    One who has a promise of indemnity against a debt, and is.sued and compelled to pay it,
    ' with costs, may recover over against the promissor, not only the principal and interest upon the money which he has paid, but also the costs.
    Where a note is payable to A, or order, who indorses it as agent for another, this addition of agent is merely a declaration that he will not hold himsef liable as endorser ; yet it is, in effect, an endorsement by him, and may be so stated in pleading; and though it turn out in proof that he was agent, and had a right to endorse as such, yet this is no variance; especially, where it is stated as mere matter of inducement to an action, broughkby the endorser against one who has agreed to indemnify him against his endorsement.
    Where a judge, at the trial, receives the testimony of a witness, who is objected to as incompetent, upon the facts already proved, reserving the question of competency, the testimony of the witness thus sworn, de bene esse, is not to have any weight in determining his competency; but this must be referred exclusively to the other evidence given in the course of the trial.
    The question in what cases a publick or private agent is personally liable, considered.
    Bills of exchange and -promissory notes must be absolute between the original parties ; but an indorser may make bis liability depend upon a particular contingency, or restrict it to a particular character or fund.
    A note ran thus : “ The President and Directors of the Woodstock Glass Co. promise to pay,” &c. signed “W. H. presidentwhereas the real name of the company was, “ The Woodstock Glass Company,” of which W. H. was president; and the note was set forth in pleading as one against the company by its true name, and it appeared from the. evidence that the latter company was intended; held, that the company were liable.
    
      The plaintiff’s counsel then stated that he should claim rjgfí¿) as fjrst endorsee, to recover as well upon the note, as being made by the defendant in his individual capacity, as uPon the special agreement stated in the declaration. In order to prove the special agreement, he called Jacob C. Mott, who testified that he was the brother of the plaintiff; that a recovery had been had upon the note against the plaintiff, as endorsee, by one Isaac F. Roe, who held the note ; that he called, with the plaintiff, upon the defendant, after the recovery, in the summer of 1818, relative to that business ; that the plaintiff stated to the defendant, that he had been cast in the suit, at which the defendant expressed his regret, and said he was sorry that he (the defendant) was out of town, at the time of the trial. The witness further stated that the defendant knew of the pendency of the suit against the plaintiff, on the note. The witness then stated to the defendant, that he, the witness, had understood that the defendant was to have put glass in the plaintiff’s hands, to secure the payment of the note, and that this agreement, on his part, had been the plaintiff’s inducement for indorsing, to which the defendant replied, that there was such an agreement, and that if it had not been for the election of Mr. Abeel, as a director, it would have been complied with. The witness further testified, that the defendant admitted that it was also agreed, that the first glass which should come down after the agreement was to be so applied; that the witness then observed to him, that he was informed he had received glass enough, after the endorsement, to meet the note, to which the defendant replied,.that it was not so, and that if he had received such glass he ought to pay the note.
    On his cross-examination, the witness stated that the plaintiff had been, previous to the endorsement of the note, a stockholder and director of the Woodstock Glass Company, of which the defendant was reputed president, but whéther he was a director, at ^ the time the note was endorsed, he was not certain. The plaintiff’s counsel then offered Israel Horsejield, as a witness, and stated that he intended to prove by him the special agreement laid in the declaration.
    
      The defendant’s counsel objected to the admission of the ' i , : , ■*. witness, on the ground that he was directly interested in the event of the suit. His Honour, the Judge, reserved the question as to his admissibility, and permitted him to be sworn, subject to the question reserved. This witness testified, that in April, 1816, just before giving the note, Isaac F. Roe, to whom the glass company were indebted for wood, previously furnished the company, came to New-Yark, and was desirous of payment; that Roe declined, taking the company’s note without an endorser ; that the witness, who was then the agent for the Woodstock Glass Company, and the defendant, who was then president of the company, applied to the plaintiff to endorse the note to be given to Roe, in his individual capacity; that the plaintiff objected for fear of difficulty, as the company was then involved; that the witness, then being the agejnt for the company, all the glass from the factory came into his hands as such agent; that he thereupon proposed to relinquish enough glass to the defendant, of the next parcel which should come down, to meet the payment of the note ; he, on his part, to agree to apply such glass to indemnify the plaintiff on his indorsement ; that the plaintiff and defendant agreed to this arrangement, and as an inducement for the plaintiff to endorse the note, the defendant then agreed to deliver to him the first glass he should thereafter receive from the company .as his indemnity ; that in consideration of this undertaking, the plaintiff endorsed the note in controversy; that the arrangement was made at the defendant’s office ; and the note was signed by the defendant, and endorsed by the witness and Mott, at the same time ; that, shortly afterwards, 265 boxes of glass came down the river, which the defendant received and the receipt given therefor by him, dated 8th May, 1816, was produced, signed by the defendant, and is in the words and figures following :
    “ Received, Nerv-York, 5 mo. 8,1816, of Ontwater Deboise, two hundred sixty-five boxes of glass, per Jacob Acker, on behalf of the Woodstock Glass Company.
    
    26$. Whitehead Hicks,”
    
    
      The witness farther testified, that the glass, supposing the whole of it to have been of the smallest dimensions, was, at that time, worth from $4,T5T°T to $5 per box ; that the witness, having agreed to allow this glass to come into the .defendant’s hands, to secure the plaintiff upon his endorsement, the defendant received it directly from on board the sloop, which came to the wharf near the defendant’s store, without the knowledge of the witness, and without his order ; that it would have been more proper to have received the witness’ order for its delivery, but still he had allowed it to come into the defendant’s hands ; that about the beginning of June following, he discovered that the defendant had received another parcel of glass, before the endorsement ; and that the witness, thereupon, immediately stopped any further delivery of glass to the defendant, who never received any afterwards. The witness, on further examination, explained, that he was, by the arrangement, to suffer 'the defendant to receive glass enough to cover the plaintiff as endorser, but no more ; and the defendant promised to apply it in payment of the note ; and that the plaintiff refused to endorse the note on' any other terms. The witness, on his cross-examination,, stated that the plaintiff, at the time the note was given, and for several years, before, had been, and was a stockholder, and one of the directors of the company; that the witness afterwards sued Hicks, the defendant, and claimed, among other things, the 265 boxes of glass, on the ground that he had not applied it according to his agreement, and was, therefore, accountable to him as agent'of the company for it; that the referees, however, in his suit, did not allow him the glass.
    The plaintiff then produced the record of a judgment, in the Supreme Court of the state of Mew-York, in favour of Roe, as endorsee, against Mott, the plaintiff, as endorser upon the note, for $1222,xy¥ damages and $155,r%\ costs, docketed August 10, 1818. The plaintiff also produced a satisfaction piece, in due form, shewing that the judgment had been paid.
    The plaintiff having rested on this testimony, the defendant sailed Michael M. Titus, who testified, that he was, at the time, a stockholder in the company, and a partner of the defendant, who was both president and treasurer of the company ; that the note in question was given for a demand claimed by Roe, on account of a contract to furnish wood to the company ; that the plaintiff and Horsejield first applied to the defendant with Roe, who had come down on the business, to make some arrangement respecting it, when the defendant told them, that Roe had broken the contract, and been guilty of a fraud, and he, the defendant, would have nothing to do with it; that, at the time when the witness, Horsejield, stated the note was given, which was after the above application, Horsejield and the plaintiff called together at the defendant’s office, and stated, that they had agreed to give Roe a note of the company, which note they produced, and wished him to sign it as president. He remonstrated with them for making the settlement, but said he supposed he must sign the note as president, if they required it, which they did, and he accordingly signed, and they, at the same time, endorsed the note and went away, the defendant telling them, the last thing he said, as they were leaving the office, that they had done wrong, and remonstrating against it; that nothing at all was said or agreed about the defendant’s delivering over glass as security to the plaintiff, or appropriating glass to pay the note, and no such agreement or understanding was had or made on the subject. About a month afterwards, the latter part of May, the plaintiff and Horsejield called on the defendant, and wished to know if he would not turn out glass to secure this note, which he declined, stating to them, that they well knew all the glass was already arranged to pay other debts prior to this ; they replied, that they supposed there was .more than"" enough to pay those debts, and the defendant said, if there should prove to be more than enough, the, plaintiff should have it. They then went away, and Horsejield then stopped the glass from coming to- the defendant, who never received any more afterwards.
    The witness also stated, that he was present at the conversation testified to by the witness, Jacob C. Mott; and that the defendant, in that conversation, did not state that he Was to deliver glass to the plaintiff, but only, if they had permitted him to go on and receive the glass, the plaintiff would have been paid.
    On his Cross-examination, this Witness testified, that he was present when Hicks, the defendant, signed the note in controversy, but he was not confident enough, as to the other facts, to say whether the plaintiff endorsed the note in his presence ; that there was no conversation about guaranteeing Mott; that when the plaintiff and Horsefield called on the defendant, about a month after his signing the note, the defendant said, that, if the directors had allowed the glass to come into his hands, as they had agreed, the plaintiff would have sustained no loss.
    The plaintiff then called Israel Horsefield again, who testified, that the statement of the last witness was not true; that the witness and the plaintiff had not called on the defendant to persuade him to sign the note, but, on the contrary, the witness and Hicks had made the arrangement with Roe, and had persuaded the plaintiff to endorse, as the witness before testified ; that Michael Titus Was passing to and fro in the store, while the witness, the defendant and plaintiff were talking on the subject, previous to the plaintiff’s endorsing ; and, not being concerned in the matter, could not have attended particularly to what passed, nor could he have heard their conversation; that, as to the statement of Titus, relative to the witness and the plaintiff having called a month afterwards on the defendant, to desire him to turn out glass for the plaintiff’s indemnity, and the conversation alleged by Titus to have taken place at that time, no such interview or conversation had passed.
    
      Jacob C. Mott was then again called by the plaintiff, who testfied,. that Michael Titus was not present at the conversation testified to by him ; that he was satisfied his statement- of that conversation was, in all its parts, true, he having particularly noted in writing, what passed at the conversation, immediately afterwards.
    The defendant then offered Gilbert' Hicks, as a witness, to prove the state of the accounts between himself and the company^. This was objected to by the plaintiff, but ad-milted by the Judge. This witness testified, that he is the son of tile defendant; that he did not keep the defendant s accounts with the company, but had examined them; that his father is in advance to the company, but how much he could not say.
    The plaintiff then called Israel Horsefield, who testified, that the defendant’s accounts were still unsettled with the company. The plaintiff then offered to shew, that the company claimed a large balance against the defendant. This evidence, however, was overruled by the Judge.
    His Honour, the Judge, then charged the jury ; and, after remarking upon the improbability of the plaintiff’s giving his personal responsibility for an involved company, without some special guaranty for his indemnity, stated that the evidence of the witnesses for the special agreement, and the evidence against it, were in direct collision ; that it was for the jury to say, which of the witnesses appeared to have had the best opportunities of understanding what had passed between the parties, for he presumed, from the appearance of the witnesses, they were men of character, and would not wilfully swear false in this transaction ; that if they found for the plaintiff, he was entitled to recover the amount of the judgment obtained by Roe against him, with interest.
    A question was then raised by the defendant, whether the plaintiff was entitled to recover the costs of suit in the case of Roe ; whereupon his Honour, the Judge, proposed, which was accorded to, that the jury, if they found for the plaintiff, should find the whole amount, to be afterwards liquidated by the Court, according as they should or should not consider the plaintiff entitled to the costs.
    The jury found for the plaintiff the amount of the judgment recovered on the note by Roe against the plaintiff, with interest.
    
      W. Slosson, for the defendant. It is contended, that a new trial ought to be awarded, on the ground that Horse-field, the witness, was inadmissable ; or, if admissible, then, that the evidence does not support the declaration.
    It is contended, that a new trial ought to be awarded, on the ground that Horse-field, the witness, was inadmissable ; or, if admissible, then, that the evidence does not support the declaration.
    
      The plaintiff’s recovery can be supported upon the special counts, only, by which the defendant is averred to have come under an agreement, that in consideration the plaintiff would indorse a certain note, made by the company, or by Hicks, as the president of the company, in favour of, and endorsed by Horsejield, he, the defendant, would apply the first glass that should be received by him, towards indemnifying the plaintiff against his endorsement. The plaintiff, therefore, to entitle himself to recover, was bound to shew, that he endorsed the note stated in the declaration, and that the defendant received glass sufficient to provide for the payment.
    To prove this, he offered Horsejield, the prior endorser, who was clearly an inadmissible witness, on the ground that he had a direct interest in effecting a recovery.' The objection is, not that as endorser, simply, he is not a witness against the maker, where the question would turn upon the point of his interest being balanced, but on the ground that he is adduced to prove that Hicks, who is not at all liable as maker, and against whom, therefore, Horsejield could not, in any action on the note itself, recover, was liable, by reason of his collateral undertaking, to apply the glass, which should come to his hands, in payment of the note. The witness, therefore, is produced to establish a liability, and create a collateral fund for the payment of the note,- and which, if established, goes directly to exonerate himself. A more clear and palpable interest cannot be adduced.
    But it will be objected, that Horsejield endorsed the note as agent. The answer is, that the note is drawn in his favour individually, and not as agent, and that the addition of the word “ agent” to his signature, cannot exonerate him from his liability as endorser. The note is, in form, a promise by the company to pay him generally, not as agent,, or otherwise, except in his own private character. Now, he can endorse it in no other character—certainly not as agent of the company, because it is not payable to him in that character. The note is not made payable to the company’s own order, which it must have been to have enabled Horsejield to endorse it as their agent, but to him individually. The plain test is this : By the act of endorsing, some one must be liable in the character of endorser : if the endorsement does not bind the principal, it must bind the endorser. It is impossible that this endorsement can bind the company as endorsers, for the note is made payable to Horse-field in his individual character, and not to the company’s order, and, of course, the title to the note can only be passed by his endorsement in that character, and not as agent. The very term agent implies an act of the principal by his agent. Besides, the word agent is wholly senseless ; because it no where appears of whom, or in what respect he was agent. No principal was disclosed. (Thomas v. Bishop, 2 Str. 955. Cas. Temp. Hardw. 1, S. C. and the cases cited in Chitty on Bills, Amer. ed. of 1821, p. 56.)
    But if Horsefield was agent, and as such the endorsement is to be considered the act of the company, then there is a fatal variance between the note stated in the declaration and the note proved. The declaration states the note to be drawn in favour of, and endorsed by Horsefield, in his private character simply; and the note proved upon the hypothesis of Horsefield’s agency, is a note in the company’s own favour and endorsed by them, by their agent. It is not, then, the note, respecting which the promise to indemnify is laid in all the counts in the declaration.
    Viewed in either way, there must be a new trial. If Horsefield is liable to the plaintiff as an endorser, then he is directly interested and not admissible. If, on the other hand, he is to be considered the agent of the company, then the note described in the special counts is different from the note produced and provpd, and the plaintiff must fail for the variance.
    
      J. Anthon, contra.
    The first enquiry which naturally presents itself, in this case, is, whether the note binds the defendant, or the Woodstock Glass Company ?
    
    If the defendant is bound, personally, by that note, then, being already bound to indemnify the plaintiff, as maker, the whole body of facts testified to by Horsefield, relative to the defendant’s special guaranty, becomes superfluous.
    
      I propose, first, to shew that the company is in no wise bound by the note, and then, as a necessary corrollary, that the defendant is alone personally bound as maker.
    The statutes creating this company are publick, and I shall, therefore, refer to them as such.
    The first is entitled “ an act to incorporate the stockholders of the Woodstock Glass Manufacturing Society,” and was passed in 1809 : the second, “ an act to amend an act. entitled, an act to incorporate the stockholders of the Woodstock Glass Manufacturing Society,” and was passed 19th June, 1812.
    By the first act, this corporation is named, “ The President and Directors of the Woodstock Glass Manufacturing Society :" by the last, the name is a1t~red to " The Wood~ sthclc Glass CoQnpany."
    Both statutes create a corporal ion, empowered to act by its corporate seal only, in the usual form, and in neither statute is any clause found enabling the president, in any manner, to hind the company by his signature. 1 am aware that, in various corporations, the president possesses this power; but it will he found that, in every instance, it is expressly given by the act of incorporation, and where it is not so given it cannot be exercised. On this head the general and invariable rule is, that a corporation can only act in the mode prescribed by the law creating it. To enable its agents to bind the company, they must act pursuant to the requisites of the incorporating statute. To shcw that this power to bind a corporation, by the signature of the president, must be expressly given in the act, I refer the Court to the standing clause on the subject, which is inserted in every banking corporation : "And bills or notes which may be issued by order of the said corporation, promising the payment of money to any person or persons, his, her, or their order, or to bearer, though not under seal of said company, shall be binding and obligatory," &c. The statutes cited are examples of the mode of conferring this power. We neither find this clause, nor any clause of similar import, in the act to incorporate the Woodsiocic Glass Company, and it therefore follows, that the company can, only be bound by its corporate seal. The note, consequently, does not bind the company, for two reasons. 1st. Because the company is not described in it by its name of incorporation, “ The Woodstock Glass Company,” but by the name of “ The President and Directors of the Woodstock Glass Company.” 2d. Because, even if correctly named, the president had no power, by his bare signature, to bind it, the seal of the company being necessary for this purpose.
    The company, then, not being bound by this note, it follows, that the defendant is bound in his individual capacity. This was so held, where the parties had described themselves in a bond, as “Trustees of the Baptist Society, &c.” but, in sealing it, they used their own, and not the corporate seal, the words, “ Trustees, &c.” being deemed descriptio personarían merely, 
    
    The 1st, 2d, 5th and 7th counts, are all framed on this personal responsibility of the defendant—the 1st, 2d and 7th setting forth the note, according to its legal import, as the note of the defendant, without giving his description ; and the 7th count alleging that the defendant made the note, by the name and description of “ The President, &c.”
    
    If I am correct, in this view of the case, it follows, that proof of the hand-writing of the maker and endorsers was enough for our purpose, and that the additional evidence of a special undertaking, on the part of the maker, to indemnify the last endorser, was superfluous ; and if an error had occurred, in admitting the endorser to prove it, it would be idle, on this account, to award a new trial, the purposes of justice not requiring it.
    But again : in this view of the case, the defendant being liable as maker, the first endorser was a competent witness to prove all he has proved, as the defendant himself admits in his argument. He would not, indeed, have been a good witness to prove the hand-writing of the maker, on account of the implied warranty on his part, that the maker’s signature was genuine. This difficulty we obviated by proving the hand-writing by Isaac Wright, before we offered Horse-field as a witness, using him, only to make out the collateral malter.
      
    
    
      111 these several views of this subject, all resting on the defendant’s personal liability on the note, the objection to the admissibility of Horsefield is utterly untenable.
    To discard, for the .moment, however, all the preceding reasoning, let us consider the subject in the light in which the defendant places it.
    He, in the first place, contends, that the note in controversy, is the note of the company, and not the individual note of the defendant. I do not know by what reasoning this can be supported. But if, from the nature of the transaction, or from any other cause developed in the proceedings, it should be thought that this ought to be deemed the note of the company, I will not quarrel with this reasoning, however illogical it may be, provided it is extended so far as to em-b ace Horsefield, the endor er who, in this view, no more intended to bind himself personally, when he called himself “■agent,” than the defendant did, when he called himself “ president,” in which event he will stand every way disinterested.
    The defendant’s counsel assumes, as matters conceded, 1. The responsibility of the company, and 2. The individual liability of Horsefield ; and then contends, that Horsefield was inadmissible as a witness, because he had a direct interest in the event, his evidence establishing a fund for the payment of the note.
    
    Granting, then, the premises assumed, it necessarily follows, that if the defendant was not responsible, as a party to the note, yet, for all the purposes of this discussion, his name must be considered as not on the paper at all ; it is then the note of the company in favour of, and endorsed by Horsefield. The defendant’s undertaking, then, is entirely collateral ; and so it is considered in all the counts in which the note is treated as the note of. the company. Now can it be for one moment contended, that in an action brought by the holder of a note against a third person, on a special guaranty óf payment by the maker, that a prior endorser cannot be received as a witness to prove the collateral undertaking ? Is he, in any manner, a party to that contract ? Gan the record of judgment, in such a case, ever be given in evidence in his behalf ? Does a recovery on the special guaranty cancel his endorsement ? Surely not. His liability, and the liability of all the parties, prior to the holder, remain the same. No collateral contract made between the holder and any third party, for his own indemnity, can ever affect the several contracts of the parties to such notes.
    Again : a third person, who has thus guaranteed to the -holder the payment of the note, would, in the event of his being compelled to pay upon such guarrantee, become the true owner of the note, and could compel the assignment of it by the holder to him, for his indemnity, after such payment ; and he would then stand in the place of the holder, and would have his action against the prior parties for his indemnity. The endorser, in such an action, on such a guarantee, stands indifferent between the parties, being liable to the one or the other, on his endorsement. It is manifest, therefore, that, on the very grounds assumed by the defendant’s counsel, Horsefield was a good witness, and the fallacy of his argument consists in taking for granted, what can never be legally or properly conceded, that by a recovery against Hicks, on his special guaranty, Horsefiddds endorsement was discharged. “ Quacunque via dala,” therefore, Horsefield is a competent witness.
    The only remaining question, then, is, whether the verdict is to be reduced, by deducting the costs of the suit brought against the plaintiff by Roe. This note, as far as it concerns the plaintiff, was entirely an accommodation note. His endorsement was without any consideration or value, and for the accommodation of the defendant and others engaged in negociating it; and the defendant, having undertaken to indemnify him, is bound to pay, not only the. amount of the note, but also all damages the plaintiff may have sustained by being sued for it, he being bound to indemnify him against all the consequences of an endorsement made for his accommodation. This point is well settled, both in this Court and in E?igland.
    
    
      Slosson, in reply.
    The argument on the other side calls the attention of the, Courtffrorp the real point in the case.
    
      
      Horsefield was offered expressly to prove the collateral guaranty ; and the true question is, whether he was competent for that purpose ; and if not, then, whether the plaintiff, upon the facts disclosed by the other witnesses, is entitled to recover ? It is clear, that, whether the note be considered as binding on the company or not, if HorsefitWs testimony is rejected, there is not a particle of ground to justify the verdict.
    I do not accede to the plaintiff’s proposition, that the note is void as against the company, either on the ground of a variance, (for certainly the true name might have been averred and shewn) or of an incapacity in the company to give a note for a debt contracted in the course of their business, which, according to the modern decisions, 1 apprehend, is by no means a settled point; but I put the case upon the broad ground, that, conceding these points to the plaintiff, Hicks, the defendant, never was, or could be liable to either the plaintiff or Horsefield, upon the note itself.
    
    This is clear, both from the testimony of Horsefield and of Titus, the defendant’s witness. Both these witnesses concur, that the note was given, and was endorsed by the plaintiff, with a full knowledge that it was for a pre-existing debt of the company ; that Hicks signed it merely as president, and it was perfectly understood between them, that he was not to be liable in his individual capacity. Nay, the very ground upon which Horsefield puts it is. that the plaintiff refused to endorse it, unless Hicks would give his collateral guaranty to pay out of the glass he should receive.
    It is immaterial whether a third person, not party to the arrangement, might have the right to recover on the note against Hicks, as maker, in his individual capacity. It is enough for this case, that it was clearly and distinctly understood, that neither this plaintiff, nor his immediate endorser, Horsefield, could have such right, being both of them parties to the original transaction, and taking the note, with a full knowledge that Hicks merely signed it, without consideration, in his official character, at their request.
    
    To follow the argument a step farther: suppose the glass had never come to the hands of Hicks, could the plaintiff liávé recovered against him ? Would it not have been a dikect violation of the very agreement, that he was to indemnify Mott, only oti the contingency of his receiving the ^ass "
    But if HorseJielcPs testimony is rejected, then Titus stands uncontradicted and unímpeách'ed. He states that Horse« field "and Mott called on the defendant, and stated that they had agreed to give the corhpany',s note to Roe for the demand, which note they produced and wished him to sign as president; that, after remonstrating against the arrangement, he said he supposed he must sign it as president, if they required it, which they did ; and he, accordingly, signed it, and they endorsed it. It will be recollected, that both Horsefield and Mott were "then directors, and had a right to require the defendant, in his official character, to execute instruments "of the company. But whether they had the right ór not, they assumed it, and it would be monstrous, that they should be allowed themselves to bring an action against him, to charge him in his individual character, for an act they required him to do against his assent, and with a remonstrance on his lips, in his official character. He may justly say, non hoc in f cederá veni.
    The case then comes back to the position, with which I started, in the original argument, that Hicks never was or could be made liable on the note itself, either to Horsefield or Mott. If liable at all, it is merely upon his collateral undertaking, to apply the glass which should come into his hands, for Mottos indemnity.
    Now, on this subject, we confidently insist that Horsefield Is an incompetent witness, on the ground, that having no remedy over against Hicks, on the note itself, he is produced to establish a liability and create a fund, which, when obtained, as far as it is obtained and recovered, exonerates himself from liability to Mott, the holder.
    If Horsefield is liable as endorser, a more direct and palpable interest in the event of the cause cannot be stated. The recovery is immediately for his use, because it relieves him from paying that, which, if he pays, he can never recover over of the maker. It is so much saved to him.,' (Marquand v. Webb, John. 93.)
    That Horsefield is liable as endorser, is, impliedly, at least, conceded by the very argument of the counsel, and is not attempted to be controverted. We might, therefore, assume it, ex consessis, and indeed, he is obliged to concede it for the reason stated in the opening argument. Every, count on the note states him expressly to be an indorser in his individual capacity. Proving an endorsement by him as agent, would, therefore, be a fatal variance, and the verdict must inevitably be set aside. Unable to resist this conclusion, which he has not, in the slightest degree, attempted to' question, the plaintiff’s counsel has bent the whole force of his argument, to shew that the note is to be considered as the individual note of Hicks also. I have shewn, and hope that even if that might be the legal effect of his signature, yet as between these parties there cannot, by possibility, be a recovery against him on the note itself, as a note. These considerations do not apply to the endorser, whose liability was not only pledged, but understood t@ be so. The addition of “ agent” to his name, was mere surplusage, senseless in itself, inconsistent with the character in which the note was drawn, and intended only to designate to what account he should charge his liability. That it was so understood by Mott, the holder, is also clear, as, although the whole fate of the cause depended on his testimony, he refused to release him.
    But it is said, that, admitting all which has been contended, by the defendant, to be correct, yet Horsefield stands- iff different; and for what reason ? For this, that Hicks’ undertaking being collateral, if he is compelled to pay, he will have a right to claim the security'in the plaintiff’s hands ; and may himself bring an action against Horsefield as endorser. In this, as throughout, the learned counsel forgets, or overlooks the facts in the cause, and the very object for which Horsefield was offered as a witness. It was to prove that Hicks actually had received the funds, (to wit, the |glass) which ought to be applied to pay the note, and that he was to be charged in respect to those funds. Now, it is an absurdity to say, that if Hicks is charged on the ground that he had received the funds to pay, he can claim a right to recover against the endorser. The very position is, that by the receipt of the funds he was the ultimate debtor, to that extent, and could by no possibility have recourse, either at law or in equity, to any party on the note.
    From these considerations, it follows :
    1. That Hicks, whether the note be considered as the company’s note, or as his individual note, never was liable on any contract arising out of the note as such, either to Mott or Horsejield.
    
    2. That Horsejield is liable as endosser to Mott, and that as such, he is directly interested in the event of this suit.
    3. But if not liable, on the ground of his signature as agent, then there is a fatal variance between the note proved and that declared on : so that, to use the counsel’s own quotation, “ quacunque via data,” the verdict must be set aside.
    One word only, as to the amount of damages. We contend that the defendant, in any event, is not liable for the costs in the recovery against Mott.
    
    
      Mott ought to have paid the note when called on by the holders ; and not have submitted to a suit. But if not, he should have given notice to Hicks, and requested him to pay.
    Instead of this, no application to Hicks is shewn, until after the recovery against him. He has, therefore, incurred these costs in his own wrong. In no point of view, therefore, ought the defendant to be charged with this part of the demand.
    
      
       6 Laws, 575, Webster & Skinner.
    
    
      
       Beatty v. Marine, Ins. Co. 2 John 109. Head v. Providence, Ins. Co. 2 Cranch, 166.
    
    
      
       Bank of Niagara, 4 Laws, 187a, s. 9. Jefferson County Bank, 282a, s. 8. Geneva. ib. 130b, s. 9. Auburn, ib. 134b, s. 9. Washington & Warren Bank, ib. 185b, s. 9. Plattsburgh, ib 210c, s. 9, &c. &c.
    
    
      
      
         Taft v. Brewster, 9 John. 334.
    
    
      
      
         Chitty on Bills, 628, n. 5,Lond.ed. 1818, and cases there cited.
      
    
    
      
      
        Vid. Stevens v. Lynch, 2 Campb. N. P. 332. Skelding v. Warner, 15 John. 270.
    
    
      
      
        Milward v. Hallet, 2 Caine's Rep. 77.
      
    
    
      
      
         Hubby v. Brown & Nichols, 16 Johnson, 70. Jones v. Brookes, 4 Taunt. 464,
      
    
   Woodworth, J.

It is very clear that Hicks was not liable in his individual capacity, as maker of the note. The case is distinguishable from Taft v. Brewster and others, (9 John. 334.) There the defendants acknowledged themselves bound, by the description of “ Trustees of the Baptist Society of the town of RichfieldThe Court considered it a mere descriptio personarían ; and that the defendants were individually liable. By the note in this case, “ the; president and directors promise to pay,” subscribed by the defendant, as “ president.” It is evident, here was no persona^ engagement, nor was any such intended. The plaintiff and Horsefield were intimately acquainted with the whole transaction. The endorsement of the former was obtained, for the purpose of giving credit to the note, not on account of the defendant’s personal responsibility being questionable, but because the company were involved, and. in doubtful credit. It cannot therefore be permitted to the plaintiff, or Horsefield, to call on the defendant in his individual capacity. If he is liable, it must be on the collateral undertaking set out in the special counts. Whether the Woodstock Glass Company were bound by the note, cannot be decided merely by the want of a seal, for a corporation may- make a valid contract not under, seal. (12 John. 231.)

In 7 Cranch, 299, (Bank of Columbia v. Patterson,) the question whether a corporation could make a contract legally binding, except under its seal, was fully examined. It was considered as sound law, that wherever a corporation is acting within the scope of the legitimate purposes of its institution, all parol contracts, made by its authorized agents, are express promises by the corporation ; and all duties imposed on them by law, and all benefits conferred at their request, raise implied promises, for the enforcement of which an action may well lie. This Court, on several occasions, have taken the same ground. Although the particular cases may not have required them to carry the dóctrine to the same extent, they have nevertheless considered the law correctly settled by the Supreme Court of the United States. (12 John. 227, Danforth v. Schoharie Turnpike Company. 14 John. 118,Dun v. Rector of St. Andrews’ Church.) The gre.at convenience of such a rule, indeed the necessity, in some cases, to prevent a failure of justice, will not be doubted. Modern decisions (although it may have been anciently held otherwise) warrant a relaxation of such technical strictness, not answering any salutary purpose. The note declared on was given for a dejaand against the company, for supplies of wood : the de-< fendant was president and treasurer : Horsefield was agent: they concurred iij giving it: it was given for the benefit of the corporation by their authorized agents : the assent of the corporation is inferrible from such acts : they are within the principles laid down, and consequently binding. But admitting the corporation, were liable, it seems to me this will not decide, whether Horsefield was interested in the present suit: that will depend on the question of his liability to the plaintiff as endorser. If liable to him, he is certainly an interested witness ; for the effect of his testimony is to charge the defendant on a collateral undertaking, and create a fund for the payment of the note. If the p laintiff is satisfied from this source, Horsefield is discharged. The defendant could not, after payment, substitute himself in the place of the plaintiff, and call upon Horse-field ; for it will be remembered, that the recovery against him would be founded on the fact, that he had received funds which ought to be applied—this making him the debtor to that extent. No principle of law or equity could, in my view, sanction such a claim, if attempted tq be em forced.

The remaining inquiry is, whether the plaintiff could sustain an action on this note against Horsefield as endorser ? I incline to think he could not. As to personal liability to the plaintiff on the note, I apprehend he stands on the same ground as the defendant. To Roe, the holder, or any other third person, he might be holden ; but here is a different state of facts. Horsefield acted as agent in this transaction, and Mott knew it: he also knew that the note was given by the company for their proper debt. Titus, the defendant’s witness, says the plaintiff and Horsefield called together on the defendant, and stated that they had agreed to give Roe a note of the company, and wished the defendant to sign it as president. The note was executed and endorsed by the plaintiff and Horsefield, and passed to Roe, who recovered the amount from the plaintiff. Jacob C. Mott testified, that he stated to the defendant, that he understood he was to put glass in the plaintiff’s hands, to secure the payment; of the note, and that agreement had been the plaintiff’s inducemenj- for endorsing the same : the defendant replied, there" was such an agreement. From the testimony of Titus, that ■ ^le plaintiff acted jointly with Horsejield, in obtaining the note, for the purpose of discharging the debt to Roe, it would seem to follow, that if Roe compelled the plaintiff), who was the second endorser, to pay the money, the plain,tiff must necessarily have a right of action against Horsejield, to contribute a just proportion, and consequently he must be an interested witness; for although the company were liable on the note, they might, or might not be responsible ; and a recovery against the defendant would, at least, be. gaining additional security, in which Horsejield had a decided interest. When, however, the evidence of Mott is considered, I think it evident, as between Horsejield and the plaintiff, the latter did not look to the former as a surety, or liable to him ; but that he trusted" solely to the agreement to deliver glass for his indemnity. The defendant admitted to the witness, Mott, that this was the inducement. This fact, connected with another, that Horsejield was agent of the company, and annexed the word agent to his signature, seems to warrant the conclusion that it was never intended he should be answerable to the plaintiff in any event; and that the designation of the character in which he endorsed, Was a declaration to the plaintiff, that he intended to incur no individual responsibility. The true question is, what was the meaning of the parties ? Horsejield professed to act in the capacity of agent. It was analagous to a special assignment to the endorsee, at his risk, as in Rice v. Stearns, (3 Mass. Rep. 225,) where it was hplden that the endorser was not liable to pay. Parsons, Chief Justice, observed, “ as the promisee had the property of the note, he might dispose of it on what terms he pleased, with the assent of the purchaser, and the latter cannot complain of the necessary effect of his own agreement. The endorser cannot be charged upon his own contract, decidedly against the express intent of it.” So here, Horsejield elected to endorse, in the character of agent. In Macbeath v. Haldermand, (1 D. & E. 181,) the words of the defendant’s letters were sufficient to have fendered him liable ; but it appeared that he acted as a commanding officer, and that the supplies were for the use bf the py-blick. It was determined that the action could not be maintained. Ashurst, Justice, said, the question mustbe, what was the meaning of the parties at the time of entering into the contract ? He said that a person acting in the capacity of an agent, may, undoubtedly, contract in such a manner as to make himself personally liable, and that brought it to the true question, namely, whether, from any thing that passed between the parties at the time, it was understood by them that the plaintiff was to rely upon the personal security of the defendant. The general principle is recognized in England, and in our own country, and cannot be questioned. (1 D. E. 674. 1 Cranch, 325. 8 Mass. Rep. 162, 3 Caines’ 69.) In 15 John. 1, (Rathhone v. Budlong,) it is said, there is no difference between the agent of an individual and of the government. The question in all cases is, to whom was the credit given ? (18 John. 407.)

In examining the question of Uorsefieldh interest, I have kept out of view every thing testified by himself; for when, he was objected to, he ought or ought not to have been rejected. If the former, and yet is admitted, as in this case, de bene esse, we cannot receive his testimony to remove the objection, which might otherwise be urged against it. But if, from the disclosures of other witnesses in the course of the trial, it appears that he stands indifferent, the Court will receive his testimony. It is on this ground I have considered the question.

If Horsejield was competent, I think the verdict is supported by the weight of testimony, and ought not to be disturbed.

But it is contended, that if Horsejield was not personally liable, then there is a fatal variance between the note declared on, and the note proved. This objection is nor well founded. The description of the note and the endorse-merit by Horsefield, may be considered as inducements td action. The liability of the defendant arises on the special contract made with the plaintiff, by which the former promised, if the latter would endorse, to deliver glass, for his indemnity. Whether Horsefield endorsed in his individual capacity, dr as agent for the company, does not affect that liability. In either character, it was a valid transfer of the rióte to the plaintiff.

fey the averment, that Horsefield endorsed, must be understood, that his interest passed to the plaintiff. This allegation is satisfied by the evidence at the trial. • I am of opinion that the plaintiff is entitled to judgment.

Sutherland', J.

ít is perfectly well settled, that if ¡¿ person undertake to contract &s agent for an individual or Corporation, arid contracts in á manner which is riot legally binding upon his principal, he is personally responsible (White v. Skinner, 13 John. Rep. 307. Randal v. Van Vechten and others, 19 id. 60. Taft v. Brewster and others, 9 id. 334. Tippets v. Walker, 4 Mass. Rep; 595. 7 T. R. 207. Thomas v. Bishop, Cas. Temp. Hard. 1. 3 John. Cas. 70.) And the agent, when sued uptinsuch a contract, Can exonerate hiniself frdm personal liability, only by shewing his authority to bind those for vidiorn h'é has Undertaken to act. It is not for the plaintiff to shew, that he had not Authority. The defendant must show affirmatively, that he had. But as the authority of the defendant, to" act for the company on this occasion, was riot questioned at the trial, we are now,' perhaps, bound to presume it.

If the defendant was instructed or authorized by the company to make the note in question, then there is no doubt that they are liable to the plaintiff for the amount which he has paid ; and if the company are liable, the defendant is not. It is either the note of the company, or of Whitehead Hicks. It Cánnot be both.

The ancient technical doctrine, that a corporation could not contract, except under its corporate seal, is now exploded. There are a variety of cases in this Court, in which they have been held liable upon implied a's well as express promises. (Danforth v. Schoharie Turnpike Company, 12 John. 227. Dunn v. Rector of St. Andrews, 14 John. 118. Randal. v. Van Vechten and others, 19 John. 60.) In the case of The Bank of Columbia v. Patterson, (7 Cranch, 306,) Mr. Justice Story, in discussing this point, says, “ it would seem to be a sound rule of law, that where-ever a corporation is acting within the scope of the legitimate purposes of its institution, all parol contracts made by its authorized agents, are express promises of the corporation ; and all duties imposed on them by law, and all benefits conferred at their request, raise implied promises, for the enforcement of which an action may well lie.”

The Woodstock Glass Company, therefore, are clearly responsible to the plaintiff, either in an action upon the note itself, or in' an indebitatus assumpsit for money paid to their use. It seems to follow, that the defendant cannot be liable upon the note.

But the special agreement of the defendant to deliver to the plaintiff the first glass which he should receive from the company, as his indemnity against his endorsement, was exclusively personal; and if the making and breach of it were proved by competent testimony, there is no ground for disturbing the verdict.

This presents the question whether Israel Horsefield, the payee and endorser of the note, was a competent witness to prove that agreement.

It is contended by the defendant’s counsel, that Horsefield was directly and strongly interested in procuring a recovery by the plaintiff against the defendant, upon this collateral guaranty, because, if he failed to recover against him, he would resort to the witness upon his endorsement. And Hicks, not being liable upon the note as maker, the endorsee could not recover over from him. It might, perhaps, be sufficient to say, in reply to this argument, that the company would be liable to the endorser, if Hicks was not; and although it may be inferred from the case, that the company were not in very good credit, it does not appear that they were insolvent. But this question is susceptible of another and more conclusive answer. The plaintiff could not recover against Horsefield, as endorser of this note. Whatever doubt ma/ once ¡jave heen entertained upon the subject, it is now well-settled, that an endorser may make a restrictive endorsement. He may limit the' payment to a particular person. (Burr. 1226. Anchor v. The Bank of England, Doug. 637. Chitty on Bills, 151-2.) He may exempt himself from all liability as endorser, without affecting the negotiability of the note', by specially staling in the endorsement, that it is taken at the risk of the endorsee.- (Rice v. Stearns, 3 Mass. Rep. 225.) That the endorser is not in any event to be liable'to pay the note, (Russell v. Ball, 2 John. Rep. 50.) That it is taken without recourse to the endorser, (Wilson v. Codman’s Executor, 3 Cranch, 193.) In Rice v. Stearns, the endorsement was in these words-: “ For value received, I order the contents of this note to be paid to A. B. at his ozon risk.” The suit was against the makers of the note, and the endorser was offered as a witness to prove their hand writing, and other facts showing their liability. He was objected-to on the ground of interest.- Ch. J. Parsons, in deliverving the opinion of the Court, says.,. “ Upon consideration, we are of opinion, that the promisee, endorsing the note under this express stipulation, is not eventually holden to pay the note, if the maker should not. As- the promisee had the property of the note, he might dispose of it on what terms he pleased, with the-assent of the purchaser, and the latter cannot complain of the necessary effect of his own agreement ;■ and the endorser cannot be charged upon his own contract, directly against the express intent of it. The- endorser, therefore, had no interest in the event of the suit, and was a' competent witness.” The endorsement of a note creates a new .contract between the parties, and it requires no reasoning to show,.that if the endorser can exempt himself from- all liability by á special endorsement, he can make that liability depend* upon a- particular contingency, or restrict it to a particular character, or fund. A bill of exchange, or promissory note,: must, as between the drawer and acceptor of the one, and-the maker and payee of the other, be absolute and payable At all events ; notout of any particular fund, or dependent upon any contingency. But when such an instrument 1» ©nee made, the subsequent parties to it may attach such condition .to its transfer as they may think proper. (Chitty on Bills, 140.)

Was Horsefield?s endorsement upon this note conditional or absolute ? There can be no doubt, that it was not the • intention of the parties, that either Hicks or Horsefield should be individually liable upon the note. And this is apparent upon the face of it. It is drawn in the name of The president and directors of the Woodstock Glass Company, signed by Hicks as president, and endorsed by Horsefield as agent, carrying, upon the face of it, strong, if not conclusive evidence, that it was a company transaction, and that Hicks and Horsefield acted in their official characters only. It is not necessary for us to determine whether a bona fide holder of this note, without notice of the original transaction, could recover upon it against the endorser or not $ though I should be strongly of the opinion that he could not, as enough appears upon the note to put him upon inquiry. But the plaintiff, with a full knowledge of all the facts, most clearly cannot recover .against Horsefield in his individual character, admitting the company to be bound by the note. Whether, if the contract was not binding upon the company, Horefield would be personally responsible (as I have already shown Hicks would,) it is not necessary to discuss. I am, therefore, of opinion, that Horsefield was a disinterested witness, and was properly admitted by the Judge to prove the guaranty of the defendant,

There is no force in the objection, that if Horsefield is not personally responsible as endorser, there is a variance between the note declared upon and that given in evidence. In the count upon the guaranty, upon which the plaintiff must recover, the note is stated merely by way of" inducement to, and as explanatory of the special agreement, It is not the contract declared upon. It is mere matter of evidence, and the question of variance cannot arise,

The plaintiff is entitled to repover, not only the amount pi the note, but also the damages and costs sustained in consequence of the suit against him. The defendant unddrtook to ¡¡n¿emn¡fy as far as the glass which he should receive would go. The evidence justifies the belief, that the §lass receive(l by him exceeded in value the recovery against the defendant.

Upon the whole case, therefore, I am of opinion,

1. That the note in question is binding upon The Woodstock Glass Company, and that the defendant, therefore, is not personally responsible upon it.

2. That he is responsible upon his guaranty, and that Horsejield, the endorser, was a competent witness to prove the special agreement.

Savage, Ch. J. dissented.

(After stating the facts.) A new trial is asked on two grounds : 1. That Horsejield was not a competent witness; 2. That if admissible, as a witness, then the evidence does not support the declaration.

It appears to me, that Horsejield is liable to the plaintiff as endorser ; and, consequently, is directly interested, whether the note be considered that of the company, or the defendant. It is alleged that he is not interested, because it was no part of the original understanding that he was to be liable ; that his endorsement, as agent, was a notice to all subsequent holders, that he would be responsible as agent only, and not individually. The facts upon which this question must be decided, are such as appear in the case, independent of Horsejield’s testimony ; and these shew nothing about the original execution of the note. Horsejield, it is true, signed the endorsement, “ Israel Horsejield, agent.” But why agent ? Agent for whom ? He is the payee of the note individually, and it does not appear, except from his own testimony, that he was agent for the company. They cannot be sued upon this endorsement ; and no judgment could be rendered against Horsejield, which would bind their property. He is therefore liable personally, or there is no liability attached to this endorsement. In Thatcher v. Dinsmore, (5 Mass. Rep. 299,) it is decided that the guardian of an insane person cannot avoid responsibility upon a note, signed by as guardian. (Foster v. Fuller, 6 Mass. Rep. 58, S. P.) In Taft v. Brewster, (9 John. Rep. 334,) the defendants executed a bond, by the style of “ Trustees of the Baptist Society of the town of Richfield.” The Court say, the bond is given in their individual capacities ; and the addition of Trustees, fyc. is a mere description of the persons. (See also, Wilkes et al. v. Back, 2 East, 142. White v. Cuyler, 6 T. R. 176. Combes’ Case, 9 Co. 76, b. White et al. v. Skinner, 13 John. Rep. 307.) I confess, therefore, I can see nothing in the facts of the case, independent of Horsefield’s testimony, which looks like discharging him from his liability as endorser.

I concur in the answer, which has been given to the argument that this witness was rendered indifferent by a balance of interest, being liable at all events, either to the plaintiff or defendant, the latter of whom, as surety, would be entitled to stand in the place of the former. The very contract relied upon, pre-supposes that the defendant must be put in funds by the company, before any liability could attach to him personally. Being thus paid by the maker, he could never afterwards call upon the endorser.

It then becomes important to enquire whether, independent of jHorsefield’s testimony, there was sufficient evidence before the jury to warrant the verdict. Rejecting the testimony of Horsefield, the facts proved are—the making of the note —the recovery upon it against the plaintiff, as endorser—the admission of the defendant, that the plaintiff’s inducement to endorse was the agreement, that glass enough should be put into the hands of the latter to indemnify him—and the defendant added that, but for the election of Mr. Abeel, as director, the agreement would have been complied with. A further admission was, that the first glass which came down, was to have been thus appropriated ; and that if the defendant had received glass enough for the pur. pose, he ought to pay the note; but he at the same time denied that he had received enough. This is the amount of ' the testimony on the part of the plaintiff, rejecting Horse- field’s ; and certainly it is not sufficient to sustain either of the counts in the declaration, which go upon the guaranty.

The plaintiff, then, cannot sustain this verdict, unless the defendant is personally liable on the note. He is so, undoubtedly, unless the company is liable. (Randall v. Van Vechten, 19 John. 63, per Platt, J. and the cases cited by him.) Formerly it was holden that a corporation could be bound by its corporate seal only. Later adjudications have established a different doctrine ; (Chitty on Bills, 20 ; and it is now perfectly well settled, that an action of assumpsit will lie against a corporation upon the simple contract of its authorized agents, when acting within the scope of the legitimate purposes of such incorporation. (Bank of Columbia v. Patterson’s Adm’r, 7 Cranch, 306. Danforth v. Schoharie Turnpike Company, 12 John. 227. Dunn v. The Rector, &c. of St. Andrew’s Church, 14 id. 118. Randall v. Van Vechten, 19 id. 60.)

Independent of Horsefield’s testimony, it appears that the "note was given by the defendant as president of the Woodstock Glass Company, for wood furnished the company in prosecuting the manufacture of glass, the purpose of .the incorporation. The company being liable, even on an implied promise, there can be no need of authority to shew that they are equally liable upon an express one—a promissory note. A corporation may give a promissory note, negotiable within the statute of Ann, (1 R. L. 151 ;) for. should it be objected, that this statute is confined to notes when drawn by any person, &c. and that corporations are not mentioned, I answer, it has been decided by this Court, that the word person includes corporations in a variety of cases ; (15 John. 382;) and there is no doubt, that upon a fair construction of this act, corporations are in-eluded. In my opinion, therefore, this was a good promissory note against the company.

I agree, that if Horsefield is to be considered a mere agent, and not liable to the plaintiff at all, he is a competent witness, and his testimony supports the declaration ; for the variance of the word agent, added to his name, I do not think materiah It might be rejected as surplus-But being liable, I think, as endorser, for aught that appears, independent of his own testimony, he is, of course, an incompetent witness. As the other testimony does not justify the verdict, it ought to be set aside, and a new trial granted, the costs to abide the event of the suit.

Judgment for the plaintiff.  