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such evidence not tending to extend, but to explain the terms of the written agreement.

The undertaking also will be good where the promise was originally verbal, but is, subsequently to its being acted upon, reduced into writing (s).

IV. What is a sufficient signing by the party, or his agent.

The signature required by the Statute is to have the effect of giving authenticity to the whole instrument (t); and where the name is inserted in such a manner as to have that effect, it does not much signify in what part of the instrument it is to be found (u); and it is no objection to the validity of an instrument signed by a surety, guaranteeing to the seller the price of goods, which it is arranged are to be furnished by the seller to the principal, and which are afterwards furnished by him, that neither the principal nor the surety could compel the seller to furnish the principal with those goods, by reason that the seller had never signed the guarantee (v). To satisfy the Statute, there must be either an

(s) Longfellow v. Williams, Pea. Ad. Ca. 225.

(t) Sug. V. & P. p. 90, 7th ed.; and see Stokes v. Moore, 1 Cox, 219; Selby v. Selby, 3 Meriv. 2.

(u) Sug. V. & P. supra; and see Stokes v. Moore, supra; Bird v. Blosse, 2 Ventr. 361; Laythoarp v. Bryant, 2 Bing. N. Č. 735; Welford v. Beazely, 3 Atk. 503; but see Welford v. Beazely, 1 Ves. 6; and Lord Eldon's observations in Saunderson v. Jackson, 2 Bos. & P. 238; and the case of Tawney v. Crowther, 3 Bro.

C. C. 318; with Lord Redesdale's observations in Clinan v. Cooke, 1 Sch. & L. 22, upon Lord Thurlow's judgment in Tawney v. Crowther.

(v) Allen v. Bennett, 3 Taunt. 169; Laythoarp v. Bryant, 2 Bing. N. C. 735; Coleman v. Upcot, 5 Vin. Abr. 527, pl. 17; Cotton v. Lee, 2 Bro. C. C. 564, cit.; and see Egerton v. Mathews, 6 East, 307; Fowle v. Freeman, 9 Ves. 351; and Seton v. Slade, 7 Ves. 265.

of Gwyn's, or the defendant in the second case could have shown that there were two notes for the same sum, but of different dates, or that there was one note given by the father, and another by the son, parol evidence could not have been received; for evidence so let in, would lead to the very perjury, or subornation of perjury, which it was the object of the Statute to exclude.

actual signing of the name (w), or something intended by the writer to be equivalent to a signature, as a mark by a marksman (r); and if a man be in the habit of printing instead of writing his name, he will be held to have signed by his printed name instead of his written name (y). But as a valid contract may be established by the evidence of several writings (z), it is sufficient if the party's signature appears to a writing, notwithstanding it does not contain the terms of the agreement, if it refer to another which does (a); and parol evidence will be admitted to show to what written agreement the instrument containing the signature refers (b), though if the party in the writing to which his signature is attached disclaims the undertaking relied on by the creditor, and to which the writing refers, as being the undertaking he had entered into, and refuses to fulfil it, parol evidence will not be permitted to connect the two instruments, for the writing relied on by the party endeavouring to establish the undertaking must be taken altogether, and then it falsifies the contract attempted to be proved (c).

An undertaking in the defendant's own handwriting, beginning "Mr. J. S. guarantees," &c. (d), or, "I, J. S., guarantee," &c. (e), it seems, will

(w) Selby v. Selby, 3 Meriv. 2; Cotton v. Lee, supra; Egerton v. Mathews, supra.

(x) Selby v. Selby, supra.

(y) Saunderson v. Jackson, 2 Bos. & P. 238; Schneider v. Norris, 2 M. & Sel. 286.

(z) Tawney v. Crowther, 3 Bro. C. C. 318; Western v. Russell, 3 Ves. & B. 187.

(a) Tawney v. Crowther, supra; Western v. Russell, supra; Welford v. Beazely, 3 Atk. 503.

(b) Allen v. Bennet, 3 Taunt. 169; Western v. Russell, 3 Ves. & B.

187; and see the judgment of Lord Ellenborough, C. J., in Hinde v. Whitehouse, 7 East, 558; Powell v. Dillon, 2 Ball. & B. 416; Cass v. Waterhouse, Pre. Ch. 29; and Clinan v. Cooke, 1 Sch. & L.

22.

(c) Cooper v. Smith, 15 East,

133.

(d) See Western v. Russell, 3 Ves. & B. 187; Propert v. Parker, 1 Russ. & M. 625.

(e) See Knight v. Crockford, 1 Esp. 190; Lemayne v. Stanley, 3 Lev. 1.

have the effect of legal signatures, and amount to such an authentication of the several instruments as is required by the Statute, although a place for the signature is left at the bottom which is never signed (f). But the giving of directions for the drawing up of the instrument (g), or an alteration of it by the party with his own hand (h), or even writing over the whole instrument with his own hand without signing it (i), or (generally speaking) the mere circumstance of the name of the party being written by himself in the body of the instrument (j), will not be held a sufficient signing to take the case out of the Statute.

The signature of one partner in a transaction relating to the partnership, binds all the partners (k), consequently, a guarantee given by one partner, if given in the regular course of dealing by the firm, will bind all the partners (); and this, notwithstanding the partners should have agreed among themselves that no guarantee should be given by either of them (m); and even where a guarantee is given by one partner without the knowledge of the others, and which is not within the ordinary business transacted by the firm, if the transaction has reference to business transacted by the partnership, and is afterwards known, or ought, from the entries in the partnership books, to have been known to the other partners, the guarantee becomes

(f) See the observation of Lord Eldon, C. J., in Saunderson v. Jackson, 2 Bos. & P. 238.

(g) Bowdes v. Amhurst, Pre. Ch. 402; S. C. 1 Eg. Ca. Ab. 21, pl. 8; and see the Earl of Glengall v. Barnard, 1 Keen. 769.

(h) Hawkins v. Holmes, 1 P. Wms. 770.

(i) Ithel v. Potter, 1 P. Wms. 771, cit.

(j) Stokes v. Moore, 1 Cox, 219. (k) Sandilands v. Marsh, 2 B. & Ald. 673; Hope v. Cust, 1 East, 53, cit.; ex parte Gardom, 15 Ves. 286.

(1) Hope v. Cust, supra; and see the observations of Lord Ellenborough, C. J., in Crawford v. Stirling, 4 Esp. 207.

(m) Sandilands v. Marsh,

supra.

in point of law an assurance made by one partner with reference to business transacted by the others, and the firm will be bound (n); but inasmuch as it is not usual for merchants or persons embarked in trade to give (0), and it is not incidental to the general power of a partner to bind his co-partners by, a collateral engagement (p), a party seeking to have the benefit of such an engagement given in the partnership name, must show (beyond the relationship of partners) (q), that the party signing had authority from the other partners to sign in the name of the partnership, the instrument of suretyship declared on (r); or, that the guarantee had been acted on, and adopted by, the other partners (s); or, that there had been a previous course of dealing, in which similar guarantees had been given in the name of the partnership, with the privity of the other partners (t); or should prove a subsequent recognition by the firm of the act and assurance of the party signing (u), and any of which may be shown by parol evidence (v). If, however, a guarantee be signed by one partner in the name of himself and his co-partners, the partner signing having no authority from the others to do so, it seems it will be good to bind the party signing, and the party signing will be held to have described himself by the partnership firm, and be estopped from saying his name was

(n) Sandilands v. Marsh, supra; and see the observations of Lord Ellenborough, C. J., in Crawford v. Stirling, supra.

(0) See the observations of Lord Ellenborough, C. J., in Ridley v. Taylor, 13 East, 175; and see Duncan v. Lowndes, 3 Camp. 478; Sandilands v. Marsh, supra; ex parte Peele, 6 Ves. 602.

(p) See the observations of

Lord Ellenborough, C. J., in Rid-
ley v. Taylor, supra; and see
Hope v. Cust, supra; Duncan v.
Lowndes, supra.

(q) Duncan v. Lowndes, supra.
(r) Ex parte Peele, supra.
(s) Duncan v. Lowndes, supra,
(t) Duncan v. Lowndes, supra.
(u) Duncan v. Lowndes, supra.
(v) Duncan v.
Lowndes, supra

other than that by which he signed the instrument (w).

V. Who will be deemed an agent lawfully authorized.

It seems that the creditor, or person to whom the guarantee is given, cannot be the agent for the surety (r); and the same reasoning would appear to apply to the principal debtor, or the person in whose favour the promise is given; but the agent may be a person incapable of acting in his own individual capacity, as an infant (y), or other disqualified person, as a married woman (2).

Where the instrument of suretyship is not an instrument under seal, the agent may be authorized by parol (a), although the collateral engagement, in order to bind the principal, must be in writing.

His authority may be either expressed or inferred from circumstances (2), and the fact of the agency,

(w) See Elliot v. Davis, 2 Bos. & P. 338; Strangford v. Green, 2 Mod. 228; and Lord Eldon's observations in Underhill v. Horwood, 10 Ves. 209.

(x) See Wright v. Dannah, 2 Camp. 203.

(y) Co. Litt. 52a; Com. Dig. tit. Attorney, c. 4; Watkins v. Vince, 2 Stark. 368.

(2) Co. Litt. 52 a; Com. Dig. tit. Attorney, c. 4; Emerson v.

Blonden, 1 Esp. 142; Palethorp v. Furnish, 2 Esp. 511, in n.

(a) See Waller v. Hendon, 5 Vin. Abr. 524, pl. 45; Wedderburne v. Carr, 3 Woodes. Lect. 423, cit.; Coles v. Trecothick, 9 Ves. 234; Rucker v. Cammeyer, 1 Esp. 105; Barry v. Lord Barrymore, 1 Sch. & L. 28, cit.; Clinan v. Cooke, 1 Sch. & L. 22; Emmerson v. Heelis, 2 Taunt. 38.

(6) In Watkins v. Vince, (2 Stark. 368,) the plaintiff brought an action against the defendant upon a guarantee. It appeared in evidence that the guarantee was in the handwriting of the defendant's son, a youth of the age of sixteen years, and who was proved to have occasionally signed his father's name, and in three or four instances to have accepted bills for him. It does not appear that any evidence was given to show that the youth had upon any previous occasion signed a guarantee in his father's name, or that if he had authority to accept bills, he had any authority to guarantee (the one authority not being necessarily included in the other), and yet Lord Ellenborough held, that there was a sufficient prima facie evidence in the absence of any inducement on the part of the son to commit a crime, to warrant the reading of an instrument purporting to be a guarantee by the father, in the handwriting of the son.

G

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