delivered the opinion ;,of the court. Under the third count iri the declaration the evidence offered was admissible, Unless, indeed, the pi’omise is within the statute of frauds. A declaration may count, as on a promise by parol, and it may be supported by a promise in writing, if it comport with the, promise stated,.
Since the cases of Leonard v. Vredenburgh, (8 Johns. Rep. 29.,) and Bailey & Bogert v. Freeman, (11 Johns. Rep. 221.,) it cannot be questioned that there was a consideration for the defendant’s promise. The case, then, turns on this point, was . the promise within the statute of frauds ?
If what was said by me, in delivering the opinion of the court in the Case of Herrick v. Carman, (12 Johns. Rep, 160.,) be law, then the decision of the .court below Was erroneous. Although what was then said was deemed pertinent to that case, it may not have been necessary to the decision of the cause, and this court, therefore, are not' to be considered as compromised by it. The factsj in that case, are the same as in this, with the difference only, that it did not appear that Herrick endorsed the note for the purpose of giving Ryan, the maker of the note, credit with Lamente, Carman Co. It was then, and still is, my opinion, that, had he done so, he would have been liable to them or any subsequent endorsee, and that Hetrick's endorsement might have been converted into a guarantee to pay the note, if Ryan did not. In the present case, it does appear, clearly and affirmatively, that the plaintiff refused to sell the horse, for which the note was given on Brundige's responsibility, and that the defendant put his name on the note as guarantee tor B rundí go's payment of it, when it fell due ; and that, but for the defendant’s undertaking, as guarantee, the plaintiff would not have parted with his property. . ,
In saying what I did, in Herrick & Carman, I reposed myself, principally, on the cases of Josselyn v. Ames, (3 Mass. Rep. 274.,) and Bishop v. Hayward, (4 T. R. 470.) In the former of these cases, the plaintiff sued on a note of hand not negotiable, given by John Ames, and payable to the defendant; and it was averred, that the defendant had guarantied the payment *178of the note to .the plaintiff. The facts were, that John Ames was indebted to- the-plaintiff upon a note, and, on demand of security,, he offered Oliver Ames as security the old note was. given, hp-and; a new orie taken, made payable by'.if ohn ,to Oliver,,' and upon - which Gliver endorsed, his,, name, in blank. ,.The court held,5 that the plaintiff might , write an- .undertaking by Oliver,, to- .pay the-note, above his name,, and then might main-, tain hi-s action.-,-
In Bishop. and'Hayase!, Lord Kenyon-admits, that, iq á suit, by a. prior endorser agsi'inst a subsequent- one,-A-case, tnight. happen in. which the.plaintiff.might recover,.--if his name- we,r'e used for form only, and the' nó.té, though nominally- payable, to.' the plaintiff, was substantially ,to b'e.páid to. the defendant.-
The case of Hunt v. Adams, (5 Mass. Rep. 358,,) bears./, strong analogy to this. case. ' There,, one.€'hflplin gave a. note to / the plaintiff’s intestate, for 1,500 dollars. / The defendant sign-., ed, .-underneath the note, an acknowledgment. that he- was '. hgld'e-n as surety for the payment-of-the note. .-It Was objected,, that-if was a collateral undertaking, to pay the .debt of anotherv Parsons, Gh. Jr, with the concurrence of the .'other judges, held,-, that the defendant was an-.'ofiginal party-to the; contract, 'Chaplin as prihei-pal, and the .defendant as surety.’; • He relied on the fact, that the signa tures of the promiserswere naade'at the same, time, "-and; that,.' in effect, -if was the. note-of .both ; and that, the consideration to- the. surety was the credit- given to the princi-, pal by. the promisee. ’ ’ , . 1 ' \ QA Í -
The case of White v. Howland, (9 Mass. Rep. 314.,) is ex- • pressly' in point., In that , case, one, Taber gave, a note- to the plaintiff for 250 dollars, payable on demand., On the back of ’it wás a promise, by Coggeshall and the defendant, jointly and severally,, ‘to pay4-he note to’-White. .It appeared, that the amount wasJoa-ned:t>y. the plaintiff .to Taber,, on- his-agreeing to give' his rióte with two endorsers ; and that the- note was given with that intent, but made,‘payable to. White-, instead of Coggeshall, the'.'-first endorser. "The court held, that the plaintiff was . entitled to recover, and that the effect of the. defendant’s signar ture was the same as if he had subscribed the note on the face, of.it, as suretyand that he was .answerable as an original pro-miser, equally with Taber., it. is evident that the' promise Was filled up oyer.the names of the endorsers. In- Russell .v. Lang-. < staffer (Doug. 514.,) Lord Jffansfield held, that the endorsement *179of a name on checks, in blank, without sum, date, or time of payment being mentioned-in the body of the notes, was a letter of credit for an indefinite sum. In Collins v. Emett, (1 Hen. Bl. Rep. 313.,) Lord Loughborough held, that signing a party’s name to a blank paper, and delivering it to B. to draw á bill of exchange, for such sum, payable at such time) and to such person as B. should think fit, was a binding instrument.
In the case of Violett and Patton, (5 Crunch’s Rep. 151.,) circumstanced very much like the one before us, Ch.. J. Marshall, in delivering thé opinión Of the court, which appears to have been unanimous, said, the paper was endorsed with the intent that a promissory note should be written on. the other side, and ' that he should bé considered the endorser of that note ; and he is now concluded from saying or proving that it was not filled up when He endorsed it; it would be to protect himself from the effect of his promise, by alleging a fraudulent combination between himself and another ; and, in that casé, the exception was taken, that the statute of frauds and perjuries avoided the agreement, but the court held it did not. -
' 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 as surety ; and the defendant is as much holden as if he had signed the body of the note.
Van Ness,. J., dissented.
Judgment reversed, and cause remitted, &c.