Huelin a. Ridner.

HUELIN a. RIDNER.

Supreme Court, First District; Special Term, January, 1858. EXAMINATION OF PARTIES UPON A MOTION.

The Code does not authorize the examination of a party to the action except as a witness at the trial of the issue in the action, or upon commission, his testimony to be read on the trial.

An order for the examination of a party to the action in a motion preliminary or collateral to the issue,- -e. g. a motion to vacate an order of arrest,-should not be granted.

Motion for a commission.

The plaintiffs having obtained an order of arrest, an attachment, and an injunction in this action, the defendants moved, upon affidavits, to vacate those orders. Before the motion was brought on, and before issue joined in the action, the plaintiffs moved for a commission to examine two of the defendants as witnesses, their testimony to be used upon the motion to vacate, and for an order requiring the same defendants to appear and be examined, under sections 390 and 391 of the Code.

J. S. McCulloh, for the motion.

Henry Nicoll and James Eschwege, opposed.

SUTHERLAND, J.-I think the examination of a party, either at the trial, or conditionally, or upon commission, or at any time before trial, under sections 390 and 391 of the Code, must be as to matters pertinent, or supposed to be pertinent, to the trial of the action, and that those sections of the Code do not authorize the examination of the adverse party, in a motion to vacate an order of arrest, or any other mere motion preliminary or collateral to the issue.

By section 389 of the Code, no examination of a party shall be allowed or be had on behalf of the adverse party, except in the manner prescribed in the Code. By the subsequent sections he can be so examined as a witness only.

I do not think that one who is examined merely as to matters

Waterbury a. Sinclair.

controverted in a motion to vacate an order of arrest, or whose examination is used only in such motion, can be called as a wit

ness.

It follows that the plaintiff is not entitled either to an order or a commission to examine the defendants Ridner & Wachschlager merely in opposition to the defendants' motion to vacate the order of arrest.

Motion denied.

WATERBURY a. SINCLAIR.

Supreme Court, Second District; Special Term, Nov., 1857. PROMISSORY NOTE.-LIABILITY OF INDORSER TO PAYEE.PLEADING.

One who indorses a negotiable promissory note payable to the order of the payee, before its delivery to the payee, for the purpose of obtaining credit with the payee for the maker by such indorsement, is liable as indorser, upon due notice of presentment to the maker, and non-payment.*

The objection to the payee's recovering from such an indorser, is founded on the rule that forbids the admission of parol evidence to modify or contradict a written contract. There are two cases in which he can recover, unless this rule is held to interpose: First, where the payee parted with value on the faith of such an indorsement made for the purpose. Second, where the indorsee received value from the payee, or, in other words, was privy to the consideration of the note.

Moore v. Cross (23 Barb., 534), where a recovery was had, was a case of the latter class. See the complaint in that case, Abbotts' Forms of Pleadings, 146. The above case was of the former class.

Morris v. Walker (15 Q. B., 589, decided in 1850), was a case of the same nature. The declaration, by O. M., stated that B. made his promissory note for £23, payable "to the order of O. M." three months after date, and delivered it to "the said O. M.," and the said O. M. indorsed to the defendant, and the defendant indorsed to the plaintiff; it stated also dishonor and notice. Plea: That O. M., stated in the declaration to have indorsed to the defendant, and O. M. the plaintiff, are one and the same person. Replication: That before the indorsement, &c., B. was indebted to plaintiff in £23; and it was agreed between plaintiff and B., at B.'s request, he being unable to pay, that he should give plaintiff, who would accept and take on account of such debt B.'s note for £23, payable at three months, which time plaintiff should give for payment provided B. would procure the defendant to indorse the note for the purpose of securing payment and by way of guarantee; of which premises the defendant had notice, and assented and agreed

Waterbury a. Sinclair.

Whether the indorsee of the payee in such a case could recover against such an indorser,-Query?

Where the complaint stated these facts, and also averred that the defendant guaranteed the payment of the note, it was held that the averment of a guarantee might be disregarded as surplusage.

Form of complaint against husband and wife, on a note indorsed by the wife when unmarried, before the delivery of the note to the payee.

Demurrer to complaint.

The plaintiff was the payee of a negotiable promissory note, which the defendant Ann Sinclair, when unmarried, had indorsed before its delivery to the plaintiff, in order to induce him to accept it. The complaint was as follows:

"That on November 9, 1855, the defendant George Dick was justly indebted to this plaintiff in the sum of three hundred and eight dollars and forty-two cents, for rent of certain premises in the city of Brooklyn, before that time let and rented to said defendant Dick by this plaintiff; and for a certain promissory note made by said Dick, and delivered to this plaintiff, which was then past due, and held by said plaintiff;—that for the purpose of securing said indebtedness, and also the further sum of one hundred dollars, which would accrue and become due from said defendant Dick to this plaintiff on the 1st day of February then next, for the rent of said premises above mentioned, and in consideration of the forbearance of day of payment of said indebtedness by the plaintiff, and as an inducement for said plaintiff to allow said Dick to remain in possession of said premises, said Dick agreed to make and deliver to this plaintiff his promissory note in writing, indorsed and guaranteed to this plaintiff by the defendant William Ann Sinclair, then a feme sole, and known by the name of William Ann Lawson, payable three months

thereto; and that thereupon, in pursuance of the agreement, B. made and delivered the note to the plaintiff on account, &c.; and the plaintiff, in furtherance of the agreement and not otherwise, and without any consideration or value in that behalf, indorsed to the defendant, as in the declaration mentioned, in order that the defendant might, in pursuance and furtherance of the agreement, indorse the same to the plaintiff; and that the defendant accordingly, in pursuance of the agreement and for the purpose aforesaid and not otherwise, indorsed the same to the plaintiff, which is the indorsement to him in the declaration mentioned: and it was held, on demurrer, that this replication was no departure, and was an answer to the plea; and the plaintiff had judgment.

Waterbury a. Sinclair.

thereafter, for the sum of four hundred and thirteen dollars and eighty-two cents, being the amount of said indebtedness, with three months' interest, and the said rent of said premises; and the said William Ann Lawson, with a full knowledge of all the facts above stated, and for the same consideration, agreed to indorse and guarantee said note to this plaintiff.

"That thereupon, in pursuance of said agreement, and for the consideration aforesaid, the said George Dick, on the said 9th day of November, in the year 1855, made his promissory note in writing, bearing date on that day, whereby, for value received, he promised to pay, three months after the date thereof, to this plaintiff or his order, the said sum of four hundred and thirteen dollars and eighty-two cents, for value received, at No. 190 Pearl-street, in the city of Brooklyn; and the said defendant William Ann Sinclair indorsed the same by the name of 'W. A. Lawson,' and the same was afterwards duly delivered to this plaintiff, who thereupon became, and ever since has been and now is, the sole owner and holder thereof. That said defendant Dick remained in possession of said premises until after the said sum of one hundred dollars became due for rent. That on the day whereon the said note became due and payable, the same was duly presented for payment at the place therein designated, and payment thereof was duly demanded, which was refused, whereupon the said note was duly protested for non-payment, and due notice of such non-payment and protest was on the same day given to said defendant William Ann Lawson.

"That since the said note became due, and as this plaintiff is informed and believes, some time during the year 1857, the said defendant William Ann Lawson intermarried with the defendant Sinclair, and is now the wife of said Sinclair. That no part of the sum secured by said note has been paid to this plaintiff, or to any person for his use; and that the said defendants are justly indebted to the plaintiff on account thereof, in the sum of $413.82, and also in the further sum of 75 cents, for the fees of said protest, paid by this plaintiff, besides interest. "Wherefore," &c.

The defendants Sinclair and wife demurred, and assigned as ground thereof that the complaint did not state facts sufficient to constitute a cause of action.

Waterbury a. Sinclair.

J. Paulding, in support of the demurrer. It is well settled that this action cannot be sustained upon the indorsement merely. It makes no difference that the defendant's indorsement was first in point of time. In the language of Chief-justice Spencer in Herrick v. Carman (12 Johns., 160, 161): "The fact of his indorsing first in point of time can have no influence; for he must have known, and we are to presume acted on that knowledge, that though the first to indorse, his indorsement would be nugatory unless preceded by that of the payees of the note."

This rule has never since been varied in ordinary cases, and certainly cannot be in a case like the present, where the allegations of the complaint show that the plaintiff did not take the note in its course as a commercial indorsement; but, on the contrary, show that he was privy to the nature of the contract, and was aware that no consideration passed to the defendant for her indorsement, either from herself or from the maker of the note.

The plaintiff has therefore based his right to recover, on the ground that the indorsement was intended as a guarantee to the plaintiff of a debt due to him from the maker of the note.

The question therefore to be decided by the court in this demurrer is, whether such a contract of guarantee is, or is not, void by the Statute of Frauds. That it is void, is settled by the following cases-Hall v. Newcomb (7 Hill, 416); Spies v. Gilmore (1 Comst., 321); Ellis v. Brown (6 Barb., 282); and see Brewster v. Silence (11 Barb., 144); Tyler v. Stephens (11 Ib., 485); Hall v. Farmer (2 Comst., 553); Durham v. Manrow (2 Ib., 533); Brown v. Curtis (2 Ib., 225).

Theodore F. Jackson, in support of the complaint. The defendant's counsel errs in assuming that we seek to recover upon the note described in the complaint against his client as guarantor and not as indorser. We concede that the principle is well established that an indorser cannot be made liable as guarantor. But we claim that our complaint shows facts sufficient to entitle us to recover from the defendant W. Ann Sinclair (late Lawson), establishing her liability as indorser of the note in question.

It alleges among other things-I. That the indorsement was