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

V.

PATTON.

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. is 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 mer

cantile 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.

against the endorsor is only at common law, upon the ground that the consideration paid for the note 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. Riddle. 2 Wash. 219. 221. Mackie v. Davis. 2 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 can 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

VIOLETT

V.

PATON.

V.

ΡΑΤΤΟΝ.

VIOLETT the defendant, and can then recover only the amount of that consideration. Suppose a note endorsed for accommodation at the bank, and the bank refuse to discount it. If the endorsee puts it in circulation can the holder recover upon it against the endorsor?

If the promise be in writing, there must still be a consideration, and you can recover only to the extent of that consideration. 7 Term Rep. 350. Rann v. Hughes.

MARSHALL, Ch. J. The question seems to be whether the declaration must not state the consideration ?

WASHINGTON, J. In Mackie v. Davis there was a special consideration.

LIVINGSTON, J. The case of a promissory note is the only case where you need not state a consideration in your declaration.

MARSHALL, Ch. J. My impression is very strong that in Virginia there has been a general practice to consider an endorsor as liable upon an implied promise; and to declare upon it without averring a consideration.

Youngs. If there must be a consideration to support the assumpsit, it must be averred in the declaration. Simms v. Cook, 2 Call. Winston v. Francisco, 2 Wash. 187. Taliaferro v. Robb, 2 Call, 258.

February 23.

MARSHALL, Ch. J. delivered the opinion of the court as follows:

This case comes on upon two exceptions; one to the opinion of the circuit court given to the jury, and the other to the refusal of that court to give an

opinion which was prayed by the counsel for the defendant below.

One upon

The declaration contains two counts. the endorsement of a promissory note, and the other for money had and received to the plaintiff's use. The question arising on the first bill of exceptions is, whether the court erred in directing the jury respecting the liability of the defendant below, on the endorsement which was the foundation of the action.

The endorsement was made before the note was written; and it appeared that the body of the note was filled up by Patton. The opinion of the court was, that, if the jury should be satisfied, from the testimony, that Violett endorsed this paper for the purpose of giving Brooke a credit with Patton, and that, upon the faith of the note so drawn and endorsed, Patton did credit Brooke to the amount thereof, the circumstances, that the note was made subsequent to the endorsement, without any consideration from Brooke to Violett, and was filled up by the plaintiff, did not bar the action; and, further, that the said Brooke was to be considered as authorized by the said Violett to make the note to Patton.

This opinion is said to be erroneous; because,

1. The endorsement was made without consideration.

2. It was made on a blank paper.

3. There was no memorandum of the agreement in writing.

In support of the first point, the counsel for the plaintiff in error have cited several cases, intending to prove that an endorsement made without consideration, though it transfers the paper to the endorsee, creates no liability in the endorsor; and that

VIOLETT

V.

PATTON.

VIOLETT

V.

PATTON.

a promise in writing, made without consideration, is void.

So far as respects the immediate parties having knowledge of the fact, and so far as relates to an endorsement under the statute of Virginia, this is correct; but the real question in the cause is, does the testimony prove a sufficient consideration for the promise created by the endorsement? This is not intended to comprehend any writing on which an action of debt is given.

To constitute a consideration it is not absolutely necessary that a benefit should accrue to the person making the promise. It is sufficient that something valuable flows from the person to whom it is made; and that the promise is the inducement to the transaction. In the common case of a letter of credit given by A. to B., the person who, on the faith of that letter, trusts B., is admitted to have his remedy against A., although no benefit accrued to A. as the consideration of his promise. So in the present case, Patton trusted Brooke on the credit of Violett's name, and Violett wrote his name for the purpose of giving Brooke that credit with Patton. It was, in effect, and in intention, a letter of credit. The case shows that this was both the intention and the effect of Violett's giving his name to Brooke. In conscience, and in substance, then, it is a letter of credit, upon which the money, it was intended to secure, was advanced; and although in point of form the transaction takes the shape, and was intended to take the shape, of an endorsement, yet, so far as respects consideration, the endorsement has the full operation of an undertaking in the form of a letter of credit.

It is common in Virginia for two persons to join in a promissory note, the one being the principal and the other the security. Although the whole benefit is received by the principal, this contract has never been considered as a nudum pactum with regard to the security. So far as respects consideration, no

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