#### *Bank of U. S. v. Beirne. Farmers Bank of Va. v. Beirne.

August, 1844,

Lewisburg.

[42 Am. Dec. 551.]

(Before a special court of appeals consisting of Judges Stanard of the court of appeals, and Scott, Leigh and Fry of the general court.)

*1.*Powers *of*Attorney—Construction.*—A letter of attorney giving authority to the agent to endorse the names of his principals, as sureties, construed.

2. Negotiable Paper—Accommodation Endorsers—Liability.†—Endorsements upon negotiable paper, made for the accommodation of the drawer, import, not a joint, but a several and successive liability; each endorser being responsible to all who succeed him.

These cases were argued together in the court of appeals; and although the facts of the cases vary slightly, the question involved in each, is the same.

The first is an action on the case, brought in the superior court of law and chancery for the county of Rockingham, by the Bank of the U. S. against Andrew Beirne, as endorser on the following bill:

“Philadelphia, Dec. 20, 1839.

“$655,406,07.

“Without grace, 8 sixty days after date, pay tq.theorder of, g Andrew Beirne, six hundred’ and fifty- ^ five thousand four hundred and six § dollars, seven cents, value received, and g charge the same to account'. S,

Deft blank

“ John B. Steenbergen.” for power of att’y.

“To Michael Arnold, Philadelphia.”

“No. two.”

Endorsed, Andrew Beirne, Samuel Coffman, James M. H. Beale, Charles T. Beale, Ben. Blackford, Erasmus Coffman, Thomas T. Blackford, Rhesa Allen, John Morgan, by their attorney T. S. Taylor.

*The endorsements upon this bill, were made by T. S. Taylor, under the following power of attorney:

“Know all men by these presents, that whereas it is the wish and desire of John B. Steenbergen of the county of Shenandoah, and state of Virginia, to procure certain notes, bills, and drafts to be drawn by the said John B. Steenbergen at such times as he may think fit, to be discounted at the Bank of the United States, and the Bank of the United States in New York, either or both, from time to time, according to the customs, and usages of the said Bank of the United States, and the Bank of the United States in New York; and whereas the said John B. Steenbergen hath applied to us, Samuel Coffman, J. M. H. Beale, Andrew Beirne, Erasmus Coffman, Benjamin Blackford, Thomas T. Blackford, John Morgan, and Charles T. Beale, to endorse such bills, notes, or drafts, as may be offered by him from time to time, at the said banks, or either of them as aforesaid, and we have consented thereto: Now therefore know ye, that we whose names are hereinbefore written, and hereunto subscribed, have made, ordained, constituted, and appointed; and by these presents do make, ordain, constitute, and appoint John B. Steenbergen of the county of Shenandoah, and state of Virginia, and Thomas S. Taylor of the City of Philadelphia, and state of Pennsylvania, jointly, or either of them severally, our true and lawful attorneys, for us and in our names, and our behalf to sign our names as endorsers, upon such bills, notes, or drafts, which the said John B. Steenbergen may offer as aforesaid, for discount at the said banks, or either of them, at any time, and for any amount, not. exceeding his present liabilities to said banks. Giving and granting to our said attorneys jointly, or either of them severally, ‘ by these presents, full power and authority, in and about the premises, for effecting the purpose hereby intended, as fully in all respects, and to all intents, and purposes, as we ourselves might, or could *do, if we were personally present. Hereby ratifying, allowing, and holding for firm, and effectual, all and whatsoever our said attorneys jointly, and severally shall lawfully do in and about the premises by virtue hereof. In witness whereof, we have hereunto set our hands and seals this seventeenth day of September, in the year one thousand eight hundred and thirty-nine.

Samuel Coffman, [D. S.

James M. H. Beale, [D. S.

Andrew Beirne, Chas. T. Beale, D. S. !d. S.

Ben. Blackford, Thomas T. Blackford, Erasmus Coffman, [D. S. [D. S. D. S.

Rhesa Allen, John Morgan, [D. S. [D. S.

Witnesses as to Andrew Beirne,

James M. H. Beale,

John Morgan.

Witnesses as to Samuel Coffman,

Diman S. Stuart,

Joseph Moore.

Witness as to Rhesa Allen and John Morgan,

W. Cigler.

Witness for all others,

Diman S. Stuart.”

The second case is an action of debt brought in the circuit superior court of law and chancery for the county *of *101Rockingham, by the Farmers Bank of Va. against Andrew Beirne, as endorser upon the following note:

“Winchester, August 22d, 1839.

“$5000.

“Sixty days after date I promise to pay to the order of Samuel Coffman five thousand dollars, for value received, negotiable and payable at the office of discount and deposite of the Farmers Bank of Virginia at Winchester, without offset.

“John B. Steenbergen.”

“Credit the drawer,

Erasmus Coffman.

By R. B. Holliday,

His attorney.”

Endorsed, Samuel Coffman, J. M. H. Beale, Andrew Beirne, James S. Arthur, Erasmus Coffman. By their attorney in fact R. B. Holliday.

These endorsements were made under a power of attorney to George Orick and R. B. Holliday in all material respects similar to that before given, except that it expressly authorized the endorsements to be made without any restriction as to the amount, at the office of discount and deposite of the Farmers Bank of Virginia at Winchester; and was executed by the parties whose names are endorsed on the note on which the suit was brought, and also by William Steenbergen; and it authorized the attorneys to act either jointly or severally.

Both causes came on for trial in the court below, upon the general issue; and after the before mentioned papers had been submitted to the jury, and proof of protest and due notice had been offered, the plaintiffs in the first case introduced a witness who had been a discount clerk in the Bank of the U. S. from the period of its charter: and the plaintiffs in the second case introduced two witnesses, one of whom had been the discount clerk in the office of the Farmers Bank at Winchester for fifteen years; and the other had been the teller of the said office *'for eleven years; who testified as to the usage of their respective banks, that they had not known an instance of any bill, to be discounted at said banks, on which there was a joint endorsement, except in the case of a mercantile firm, when the endorsement was made in the name of the firm: but they testified also, that they had never known any case in which a note was offered to said banks, upon which there was a joint endorsement, except in the case of the endorsers being a mercantile firm; and that they had never known an instance of a note or bill made payable to two or more payees, except in the case of a note or bill made payable to a mercantile firm, being offered for discount at said banks. They also testified that they had known attorneys to act under other letters of attorney in all respects like the letters of attorney herein before set out; and that, in all such instances, the attorney made the notes payable to one, the first of his constituents, and then endorsed his name, and the name of the other constituents in the same manner as had been done in the cases at bar.

In the case of the Farmers Bank v. Beirne, it further appeared that the note on which the suit was brought, was given to renew a note for the same amount which had been discounted at that bank, on which was the name of William Steenbergen as an endorser; and that between the times of the execution of that, and the present note, he had died; and therefore his name was not put upon this one.

The evidence having been submitted, the counsel for the defendant moved the court in each case, to instruct the jury, that the said letters of attorney did not authorize the.attorneys, or either of them, to endorse the names of his constituents on bills, or notes drawn by the said John B. Steenbergen, to be discounted at the Bank of the U. S. in one case; and the office of the Farmers Bank of Virginia at Win-Chester in the other—*in such manner as to bind them as several, and successive endorsers; but only to make a joint endorsement of, and for them all; so that they should be jointly bound as endorsers to the holder; and equally, and jointly bound as among themselves: and the court did so instruct the jury accordingly.

To this opinion of the court the plaintiffs by their counsel excepted; and the jury having found verdicts for the defendant, they applied for, and obtained appeals to this court.

G. N. Johnson, for the U. S. Bank.

This cause turns upon the construction of the power of attorney executed by the defendant, and others.

The preamble of the power explains the object, and motive of the parties. In the power, they recognize the usage, and customs of the bank; and appoint their attorneys ; imposing no restrictions on the mode, form, or manner of the endorsement to be made.

Where no mode of executing a power is prescribed, the attorney may pursue either of two which may be presented to him; and he cannot be held responsible for not pursuing that which is most beneficial to his principal; unless he has been guilty' of fraud, or negligence: and even then, the principal is bound by the acts of his attorney, so far as third persons are concerned, if they' are not parties to the fraud. Paley on Agency 9; Law Lib. vol. 28, p. 82; Moore v. Mourgue Cowp. Rep. 479; Russell v. Hankey, 6 T. R. 12; Ex parte Belcher, Amb. 218. So, it is held that an authority to do the principal act, includes in it all the means necessary to accomplish it. Paley on Agency 189, 209; Story on Agency 58, *§*57. And an authority involved in a power, must be expressly excluded, if it is intended that such authority shall not be exercised. Fenn v. Harrison, 3 T. R. 757; 4 Id. 177 ; Alexander v. Gibson, 2 Camp. 555; Helyer v. Hawe, 5 Esp. Rep. 72; Runquist *v. Ditchell, 3 Id. 64, and note 1, p. 66. All these cases are illustra*102tions of the principle, that whether the power is written, or oral, an agent has a discretion in the mode of executing it.

We admit, that a special agent must act within his power; but the principle which we assert is, that where a power is given, and the mode of executing that power is not prescribed, the agent has a discretion; and it is not essential that he shall adopt the mode most beneficial to his principal, in order to bind him. If a power to sell is given, the agent may sell for such price, on such time, and to such person, as he thinks proper; and if there is no fraud in the agent, the contract is valid, as between principal and agent: and if there is no fraud in the purchaser, it is valid as between the principal and the purchaser. So also, an agent to sell land, may convey without warranty, or with special, or general warranty; and whichsoever of the modes he may adopt, the contract is valid. Farther, if the power is doubtful, and the agent acting in good faith, adopts one mode, when the principal intends another, the principal is bound. Story on Agency 71, § 74; and the power is to be taken most strongly against the principal. Courcier v. Ritter, 4 Wash. C. C. Rep. 549; Detastett v. Crousillat, 2 Id. 132.

As a fact, it is a matter of universal notoriety, that the usual mode of endorsing is by several endorsements. The books scarcely afford us an instance of joint endorsements, except in the case of endorsements by mercantile firms; and this is not an exception, as one member of the firm signs the name; and notice to one is sufficient : and where two endorsers are required, the firm, however numerous the partners, counts but one. Indeed the case of Carvick v. Vickering, Doug. 683, shews that so late as the year 1783, judges were so little acquainted with joint endorsements, that they decided that a note made to two, might be endorsed by *one of them; a decision which lord Mansfield permitted the jury to overrule, upon their knowledge of the custom. But although joint endorsements are recognized, the cases found in the books shew that they are only required where absolutely necessary, as on a note made to two.

The evidence in this cause shews that joint endorsements are not known at the U. S. Bank; and that it is the custom, to make several endorsements, under such a power as that we are now considering. Now, it is settled law, that a party offering paper at a bank, agrees to be governed by the customs, and usages of that bank; Owings v. Hull, 9 Peters’s Rep. 607; that an act to be done at a bank, must be done according to the customs and usages of the bank; and that it is not essential that parties should know the usage. Bank of Washington v. Triplett, 1 Peters’s Rep. 25; Mills v. Bank of the U. S. 11 Wheat. Rep. 431. The usage of the ü. S. Bank, may therefore be referred to in interpreting this power: and it being the usage to execute such a power, as authorizing a several endorse-1 ment, the parties must be presumed to have assented to that mode. Story on Agency p. 77, *l*83.

In construing this power, we must look to the objects sought to be attained; and the power is to be construed, ut res magis valeat quam pereat. The object was to give to Steenbergen a continuing credit at the bank, to the amount of his then indebtedness. To effect this, it was necessary they should make the security acceptable to the bank. This was not to be done by a bill to be endorsed jointly, by nine persons. The law in relation to joint endorsements is so unsettled, as of itself to be a good reason why the bank should refuse it. It is at least doubtful whether notice must not be given to all. Story on Bills 335, § 299, and note. The holder must know the residence, and post office of each endorser, *that he may give him notice; and if by any act, or omission of the holder of the bill, one joint endorser is released, they are all released. The fact that the parties to this power insisted on a joint endorsement, would have destroyed Steenbergen’s credit; and thus have defeated the very object they had in view.

Again, the power authorizes the attorneys to endorse all such bills as may be offered by Steenbergen for discount. But this defendant insists in another case depending in this court, that a bill drawn, payable to one cannot be jointly endorsed by the payee and others. Here then is one bill, that upon this premise, cannot be jointly endorsed; and yet the power authorizes the endorsement of all bills which may be offered by Steenbergen for discount. Many other cases might be stated, where if this power only authorizes a joint endorsement, the authority thereby given could not be exercised.

But again, the power says, “as fully as if we were present acting for ourselves.” If they had been present, they might have made several endorsements. It may be true that these words do not give an independent power; but they may be referred to, to ascertain what is the power intended to be given.

The authority to the attorneys to endorse, is given jointly, and severally. If the agents were to act severally, this must be expressly provided for, in the power; as an authority given to two cannot be exercised by one. But in Slingsby’s case, 5 Coke’s Rep. 18 b. a distinction is taken between a grant of authority by several, and a similar grant to several. A joint grant by several, is several; an authority given to two, or more, by several, is a joint authority.

Various objections are made to the construction which we give to this instrument. It is said first, that this being a written instrument, it must be construed strictly. If by this is meant, we must construe it according to the letter; then we have followed the authority to the letter; *for we have endorsed all the names. If it is meant, we must adhere to the spirit of the power: we concur in this; and *103shew that the object in view in its execution, could be best accomplished, by a several endorsement. If it is meant, that the power is to be limited to the lowest amount of meaning; this is against the principle that the grant shall be taken most strongly against the grantor.

But let us consider this rule. Paley on Agency p. 9, says, “all written powers, as letters of attorney &c. must be strictly construed. ’ ’ The authority to which he refers, only shews that the power is to be construed according to the reasonable meaning of the terms; and that where an authority is not expressly given, you may not interpolate a doubtful power, not necessary to effect the object of the party granting it. But the same author goes on to shew how readilj', a power may be implied, where it is necessary to effect the object in view. Paley on Agency 196. Withington v. Herring, 5 Bing. 440; 15 C. C. L. R. 492. The rule means nothing more than this, that where the principal defines the authority he gives to the agent, the directions must be followed ; though where there are no directions the agent has a discretion. Smith’s Commercial Law 60, 61. But although it is true that the agent is required to pursue his authority strictly, when that authority is once ascertained, this rule of strict construction, cannot have place in ascertaining what the authority is, without a violation of the sound rule that the grant must be taken most strongly against the grantor.

It is next objected, that the plural words in the power, we, our, us, &c. imply a joint authority. These words may be read distributively. Each of the parties to the power had only his own power to grant; and could grant no other than his own ; and certainly could not be held responsible for the validity of the grant by the others. But the authorities shew that where the thing ^granted is several, the covenants will be considered several. Slingsby’s case, 5 Coke 18 b. ; James v. Emery, 5 Price 529; 2 Exch. Rep. 290; Shepherd’s Touch. 30 haw Bib. 302; Story on Agency 41, § 38; 1 H. B1. 37.

But it is again objected that these parties intended to be equally responsible ; and that our construction destroys this equality of liability. It does not follow that if the parties intended to be mutually and equally bound inter se, they intended to be jointly bound to the bank. If this agreement does not appear upon the face of the power, then it is impossible that the bank can be affected by it. They must be liable to the bank, according to the contract made with her, whatever may be their rights as to each other. If then the bank is to be affected by a right existing among these parties for contribution, it must be shewn from the face of the power, that this right did exist; and that it has not only been destroyed, by the mode in which the power was executed, but that in so executing the power, the agent has deprived them of this right, by transcending his authority. Now it is certain that nothing is said in this power, of the agreement among the parties to it, for contribution ; it can only be implied from the nature of the authority conferred on the agent; and then the argument is, that a right to contribution was intended, because only a joint endorsement was authorized by the power, and a joint endorsement was only authorized, because contribution was intended.

If, indeed, a right to contribution among the parties to this power, is to be inferred from the circumstances attending its execution, then the mode of making the endorsements by the agent, cannot deprive the parties of it. It is an equitable right, not arising out of contract express, or implied, but out of the circumstances of the case. 1 Story’s Equi. 470, g 492; Dearing v. Winchelsea, 1 Cox’s Rep. 318; approved in Craythorne v. Swinburne, 14 Ves. 159; and not to be enforced in *this cause; but to be adjusted upon equitable principles, in a court of equity; and is in no wise affected b3r the mode in which their contract with the bank has been executed.

Mason, for the Farmers Bank.

The question in the cause is upon the true construction of the power of attorney. Does it authorize a joint, or a several endorsement? Upon the construction of a power, there are some admitted principles. First, to ascertain the intention of the parties: and this is to be learned from the power. From this, we learn that it was the intention of these parties to give to Steenbergen the credit of their names, without stint. That they intended to endorse all notes, and bills, which h,e might draw, and offer for discount, at the bank; and that they intended such bills, and notes should be endorsed, according to the custom and usage of the bank. The evidence in the cause, shews that for fifteen years at least, the custom and usage of this bank, was to discount upon several endorsements. We are not contending for the usage which creates law; but the usage, by which contracts will be construed. By this usage these parties consented to be bound.

The inconvenience, and danger to the bank, attendant upon joint endorsements, is a sufficient reason why the bank should refuse to discount paper upon them. It would be necessary to prove the handwriting of all, before a recovery could be had against one. So, too, there must be proof of notice of protest to all. Story on Bills 299. And if by an3r slip one is released, that releases all. These considerations are a good foundation for the usage of the bank. And they seem to have influenced not onl3r this bank, but all others; as Carvick v. Vickering is the only case to be found in the books, where there was a joint endorsement.

*But it is said, we must construe this power strictly. It is true in construing a grant, we must take it as conferred ; and not engraft another power upon it: but in enquiring what is conferred, we must look to the intention of the parties: and the grant is to be taken most strongly *104against the grantor. These rules do not conflict; and taking them together, the amount of the rule is, that the agent must be confined to the authority given; and in choosing among modes for the execution of his authority, he should choose that mode which is most conformable to usage; though he may choose any mode which is incidental to the power; unless the power itself restricts him expressly. Penn v. Harrison, 4 T. R. 177, shews the rule; see also Andrews v. Kneeland, 6 Cow. Rep. 354; and for rules for the construction of instruments, the court is referred to Shep. Touch. 53, 85, 86, 87.

In this case, the authority given to the agent, is to endorse the names of his principals. He does this, and then the law determines the liabilities arising out of it. But our opponents say no; he must not only endorse, but he must secure the right of contribution among endorsers. The act of endorsing is all he is authorized to do; but again they say no; he must consider what he does by endorsing; and must take care that whilst he binds his principal under one law, he provides him a remedy under another. Such a duty can only be devolved upon the agent, where the character of common sureties is first ascertained; but in this case, the authority to the agent is to endorse the names upon a peculiar paper; and the endorsement itself divests them of this character.

But this power is to be executed in such a way as to effect- the intention of the makers. Their intention as expressed in the power, is to endorse all notes, and bills, offered for discount at the bank, by Steenbergen. And, yet, if this power only authorizes a joint endorsement, *it is obvious that many notes, or bills, might be made, and offered for discount by Steenbergen, which could not be endorsed under it. The note on which this suit is brought, is an instance of the kind.

It is said, the terms “we, us, our,” indicate that the parties who use them are not to be segregated. If looked to alone, that maj' be so. But you must enquire what the agent is to do. Here, the agent is authorized to endorse the names of his principals upon commercial paper. The liability of the first to a succeeding endorser, is a mere incident of the form of the contract; and if they would prevent this, they must do it expressly. Windham’s case, 5 Coke 7 b. 8 a. If the parties do not prevent this consequence, by guarding the power, the law affixes the consequences; and will make the liability several. Shep. Touch, by Preston 301-2. These cases shew that the joint terms will be disregarded, where the objects in the view of the parties, require it, as do also the cases of Eccleston v. Clipsham, 1 Saund. 153, note 1; James v. Emery, 5 Price’s Rep. 529; Withers’s ex’or v. Bircham, 3 Barn. & Cres. 254. You may do injustice to the grantee, if you look alone to the terms of the grant: you look, therefore, to the intention of the grantor, and to the subject matter of the grant.

Apply these , principles, to this case. Here, the purpose is to endorse. The act is to endorse. The only thing done by the attorney, is to endorse the names. The law raises the contract. The force of the joint terms is exhausted, in the appointment of a joint agent.

The whole argument on the other side, is the improbability that they would endorse severally; and subject themselves to the liabilities arising out of that species of endorsement. Whether to preserve the right of contribution a joint endorsement is necessary, may be a question; see Winchelsea v. Dearing, 1 Cox’s Rep. 322; but it is a question, in which the plaintiff in this cause *cannot be interested, unless the power requires the endorsement to be so made as to preserve it. If such is the agreement among themselves, no doubt a court of equity will enforce it. But their contract with the bank, is several. This arises out of the nature of the contract. But this cannot affect their rights as to each other, if they can shew that they agreed to become common sureties.

Macfarland, Heigh and Jones, for the appellee.

In these cases the defendant is a security, and a constituent in a power of attorney: in both respects entitled to the legal sympathy of the court. As endorser he is a surety, collaterally and conditionally bound: and the authority to bind him as such, must be clear and explicit. Walsh v. Bailie, 10 Johns. Rep. 189; Russell v. Perkins, 1 Mason’s Rep. 368; Miller v. Stuart, 9 Wheat. 680; Theobald on Principal & Surety, 1 Haw Hib. 39. But as endorser, he is entitled to even more than the common measure of favour shewn to sureties ; because only active laches can release an ordinary surety; but as to endorsers, the laches which releases may be passive. As principal in a power, though he is the grantor, yet the rule is that in his favour, the power shall be strictly construed. Plowden 396; Atwood v. Munning, 7 Barn. & Cres. 278; Story on Agency § 68, 72, 83, 165; Palej’ on Agency 83; Horton v. Townes, 6 Heigh 47; Rosseter v. Rosseter, 8 Wend. Rep. 494.

Het us look then to the power. It gives to the attorneys, an authority to endorse the names of their principals, upon all notes, and bills,- which Steenbergen may offer at the specified banks. Their only authority is to make endorsements; a strict commercial security, of which the nature, and liabilities, are perfectly settled by the law. Under this authority, the attorneys have endorsed the names, not jointly, but successively; so that, not only are they all bound to the banks, but each is *bound for the whole amount of the bill, to all who succeed him. By this contract, they are not common sureties. And out of this contract, the right to contribution cannot arise. Farmers Bank v. Vanmeter, 4 Rand. 553; Chalmers v. M’Murdo, 5 Munf. 253. Is this the contract which the attorney was authorized to *105make for his principals? or did his authority require him to endorse their names jointly? so that the character of common sureties would be fixed by the contract itself; and the right to contribution would appear upon its face.

An authority limited by definition, is as much restricted to the limits of the definition, as if excluded by express prohibition. We all know, that if a power is granted to two, it is a joint power, in which both must join; if it is joint, and several, then both, or either may act; if it is to more than two, then it must be executed by all, or one. Story on Agency, § 42. Much has been said upon the liberal construction of the acts of parties, in relation to the law merchant; and of the influence which usage will have upon the construction of their contracts. But this power is not a commercial instrument, but a common law paper, and is therefore to be construed according to the rules of the common law. Atwood v. Munning, 7 Bam. & Cres. 278. In the case of Atwood v. Munning, the power of attorney was treated with the strictness of a common law deed; though it authorized the making of commercial instruments.

When we look to this power, we find that here are nine men, who are about to become securities for Steen bergen to the bank. They bind themselves at the same time; by the same power, through the same attorney, who they probably do not even know personally ; upon the same paper. Do they mean that all shall share the same, and equal liabilities by the act? or do they mean that this attorney, a stranger, may at the pleasure of himself, and the bank of which he is an officer, put the *whole of the liabilities which it is their purpose to incur, upon one, or some, or all of them, with power to select from among them, the person who shall bear the burden.

[C. Johnson explained. We admit for the U. S. Bank, that the agent must sign all the names on every paper executed. The power authorizes the names of all the parties to be signed as common sureties. How far the death of one would revoke the power as to him, or the others, properly arises in the Farmers Bank v. Beirne.]

The counsel for the appellees. It is admitted then, that the power requires all the names to be endorsed on each paper. But why endorse all the names, if they may be so endorsed, as that they shall not only be all bound to the bank; but each be bound to all who shall succeed him. This provision is not made for the benefit of the bank; but the endorsers. But if successive endorsements may be made, of what benefit is all the names to the endorsers. We have seen that this species of endorsement does not constitute the parties sureties, standing upon the same footing; and bound to contribution ; but actually raises a presumption against any such liability: and to the authorities before cited, we will add M’Donald v. M’Gruder, 3 Peters’s Rep. 470; Hixon v. Ward, 2 Littell’s Rep. 174; Longley v. Griggs, 10 Pick. Rep. 386. If, then, this right to contribution exists, and it does not arise out of the contract which the attorney was authorized to make ; it must be founded in some special agreement between the parties : and if so, the endorsement of the names would seem to be wholly unnecessary. But if all the names are on the paper, by successive endorsements; the bank maj1 not care to hold all responsible; and may give notice of protest to the first endorser alone. The others then, are released, for want of notice; and the fact, that their names are to be found on the paper, cannot impose upon them a responsibility which did not previously exist.

*It is also admitted that the power provides, these parties shall be common sureties. But under the endorsement made, they are common sureties in no sense of the term. To be common sureties it may not be necessary that they shall be jointly bound; but they must be equally bound ; and in the same degree as it respects each other. But in this case they are not jointly, or equally, but successively, and contingently bound: the contingency in each case being distinct; and dependent upon the judgment or caprice, or good will, or industry, of the bank, or its officers? Is that the common suretyship, for which this power provides, which may be defeated at the will of the bank, or its officers? Or did these parties intend, and provide for, a common suretyship, arising out of a joint endorsement; by which if the bank feleased one, she released all; and if one, or some of them were compelled to pay the debt, in the first instance, the liability of the others to contribution, would be indisputable? An examination of this power will enable us to determine this question.

The application by Steenbergen to these parties, to become his sureties, is in the aggregate; and the consent is in the aggregate ; and they jointly execute the same power, using the plural number throughout. Thus it says he has applied to us, and we have consented. We have made and ordained &c. our true, and lawful attorneys, for us and in our names &c.

In all contracts, and delegations of power, the juncture of names, without any thing more, ex vi termini imports a joint contract, or a joint power: and where the parties join in a contract, or a power, it imports juncture. Theobald on Surety, p. 79, J 99, 100.

Look, then, at this power; is it a joint delegation of authority proceeding from all; or a several delegation of authority proceeding from each? Gentlemen seem to admit that the plural we, our, us, &c. import prima facie, a joint power ex vi termini ; but they say, here are nine persons, *with distinct faculties, and independent wills, each for himself giving the authority to endorse his name; and therefore the power is from each separate. But does the conclusion follow from the premises. Take the case of partners; each is distinct, but they form a union: and their acts are joint. So of two who are not partners; they join in a bond; and the “we *106bind,” &c. ex vi termini, make a joint contract: and to make it several, express terms must be used. Where is the distinction between the force and effect of the word “we” in the case of a power, and in that of a bond. We are told every where, that under an authority to two, they must act jointly: and so in a contract to two, to guarantee; the contract is to all collectively, and does not survive. Theobald on Principal and Surety, p. 79, § 99, 100. The authorities cited on the other side, to maintain their proposition of a several grant of authority, and a several contract, will be found to be wholly unlike the present case. One .of them is a case where several united in one deed, to convey their several property, to the grantee; and they each covenanted severally; and it was held, that the covenant of each referred to the property conveyed by him. Another case is, where several united in one bill of lading, to consign their several property to the same factor; and it was held, he was not the joint factor of all; but the several factor of each. In these cases, there was nothing common to the parties; no common property ; no common interest; no common purpose ; and there was no reason why their acts should be joint; whilst every thing shewed that they were several. In the case at bar, the parties convey no several property ; and make no several covenants; but each, deeply interested in the common responsibility of all; with one common object, they join to give to the attorney the authority to endorse their names. What is there in this case, to take it out of the admitted general principle, that the juncture in the power, *imports a joint authority, and a joint contract? Upon principle, and authority, then, it is clear that this is not a several, but a joint power: andthe-corollaryis irresistible, that the contract-to be made under the'power, is' a joint contract.

In furthe.r examining this power, it will be seen, that when these parties wish their attorneys to act jointly or severally, they give them the authority, in express terms; shewing that they well understood what was the force and effect of the language they employed: and we must therefore presume that when they confine themselves to the use of terms which will authorize a joint contract alone, that they do so by design ; and because such is the only contract which they intend to make.

But it is said, that we must look beyond the language of the power, to the intention of the parties; and that the power is to be construed so as to effect that intention. And then they tell us that the intention was to sustain the credit of Steenbergen at the banks. It is true the intention of the parties is to be looked to, in the construction of the instrument; but that intention is to be derived from the instrument itself. That says nothing of the intention to sustain Steenbergen’s credit. But if that was the fact, the enquiry would still remain, did they intend to sustain it by endorsing for him jointly, or severally? and the contract which they authorized their attorney to make, is the only exponent of that intention. It would indeed be a violent presumption, that because all were willing to incur jointly, the liabilities authorized by the power; each was willing to be subjected alone, to the whole of these liabilities; and to leave it to the attorney, or the bank, to say which of them should be the victim.

But it is said again, that these parties consented to be bound by the custom and usage of the bank; that it was the usage of the bank to discount paper upon several endorsements only; and indeed that joint endorsements *are scarcely known to the commercial world. If it was the purpose of the bank, only to discount paper upon several endorsements; then her first duty, when this power was produced to her, was to ascertain the kind of endorsement, which it authorized; and finding that this was a joint endorsement, to reject it. The power informed her what these parties would do; and surely if she accepted their endorsements under that power, she must be presumed to intend to accommodate her usage to the power; and not to change the power by the usage.

But what is the usage relied upon? Taken in the strongest point of view, it is a usage of but a few years standing; and only extends to what was the usual course of business at the banks. But the evidence does not shew that the banks had ever refused, or were unwilling to discount paper, upon joint endorsements. Cases have been cited to shew that parties dealing with banks, must be governed by the customs and usages of the banks. In reply it is enough to say, that these parties having stated the terms upon which they would deal with the bank, the bank could only reject their proposition, or accept it, as it was made; that the proof of usage is wholly insufficient; and- that the cases cited have no reference to such a usage as that attempted to be set up in this case. The kind of usages which the law recognizes, may be seen by reference to the cases of Renner v. The Bank of Washington, 9 Wheat. Rep. 581; Trott v. Wood, 1 Gallison’s Rep. 443. But even if the usage was established, it is the settled law that the authority of the agent is to be ascertained from the power; and is not to be enlarged by the usage, and practice of other agents. Story on Agency, *§*76, p. 63.

It is again insisted, that the power does not authorize the attorney to make a contract for his principals; but simply to sign their names as endorsers; and the law determines the liabilities arising out of the act. If the *duty of the attorney, is the mere manual act of signing the names of his principals, the plaintiffs, nevertheless, insist there is a contract between these principals, and themselves; and are here to enforce it. That contract must be ascertained from the power; and we are thus brought back to the enquiry, what is the true construction of the power; in order to ascertain whether *107the attorney has performed his manual act in such way as to raise the contract intended by his principals. But here it is insisted, that no mode of signing is prescribed in the power; and the attorney may therefore use his discretion in the matter: and for this various authorities are cited. These authorities however shew, that the discretion of the attorney is limited to those modes which are incidental to the principal power; and the mode adopted must raise the contract intended by the parties. If we have succeeded in shewing that the power only authorized a joint contract; then the doctrine of the discretion of attorneys, can have no influence upon this case; unless indeed the counsel on the other side can shew that there are two modes of raising a joint contract by endorsement; and that several and successive endorsements is one of these modes.

The last objection we shall notice is, thai the power authorizes the attorney to endorse all notes, and bills &c. ; and it is insisted that if he is restricted to a joint endorsement, this cannot be done. The instrument must be construed all together; and the word “all” must be so restricted, as to make it consistent with the other provisions of the power: and must therefore be limited to those bills, and notes which might be endorsed in the manner authorized by the power. If this limit was too narrow for Steenbergen and the bank; their only course was to get it enlarged by the principals; or refuse to act upon it entirely. Having accepted it, they must take it as it is given.

*C. Johnson for the appellants.

These causes depend upon the correctness of the instruction given by the court below. That instruction is, that the powers, under which the endorsements were made, did not authorize an endorsement which would bind the endorsers severally' and successively, but that they only authorized joint endorsements, so that the principals should be jointly bound to the holders; and equally, and jointly bound as among themselves. It is for the counsel on the other side to inform us, how sureties may be jointly' bound to each other; it being a well settled principle of law, that sureties are only bound to each other for their aliquot part of the burden.

But let us come to the examination of this power of attorney. Does it only authorize a joint endorsement? It is said, that the appellants are doubly entitled to the protection of the court, as grantors in a power, and as sureties, and, therefore, that the utmost strictness is required in the execution of the power. The authority relied on by the counsel says, that all the requisites prescribed by the power must be combined in the act of the agent. But the same authority shews, that where the prescribed requisites are observed by the agent, that this is sufficient, and his act is valid. What then is the act prescribed by the power; and what has been done by the agent? The power says “to sign our names as endorsers.” Here principals are about to give authority to an agent to sign their names as endorsers. The object is, to give to Steenbergen the use of their names at the two specified banks, and nowhere else, and to give it not in the form of bonds, or as the makers of notes or drawers of bills, but as endorsers on all such notes, drafts, or bills, as he shall offer for discount at these banks. We all know that there are various forms of endorsement ; that it may be joint, or joint and several, or several; and there being no direction in the power as to the form to be adopted, and no prohibition of any ^particular mode, the attorney was of necessity' compelled to select the mode, in which the power was to be executed.

This is the power conferred; a power which does not contemplate as one of its objects to provide for or secure the responsibility of the parties inter se, but which looked to and intended to provide for the endorsement of Steenbergen’s paper in a manner, that would make it available to him at the bank, whilst it secured to them all the advantages of prompt notice, &c. belonging to the character of endorsers. What then is the meaning of this grant of authority? The counsel on the other side say, that ex vi termini, the words “sign our names as endorsers,” import a joint endorsement. We say, they give to the agent the authority to endorse the names in any honest and fair manner, which will effect the purposes of the parties. If the counsel on the other side are right in their opinion, then it ends the case. But what is the ground of their reasoning on this subject? They go to the books, and find that in contracts the words “we convey',” “we warrant,” “we covenant,” and the like, without farther explanation, imply a joint undertaking. All the authorities cited by them, are authorities having reference to contracts. But they have produced none to prove, that in grants of power to an agent, the language authorizes a joint act only. On the contrary, Slingsby’s case, 5 Coke 17 b., justice Windham’s case, Id. 7 b., and James v. Emery, 5 Price 529, 2 Exch. R. 290, prove that the plural words will be construed to import a joint or several obligation ratione subjects materias. It is admitted that in conveyances by several of their several property, the covenants will be considered several; and that in consignments by several to one factor by the same bill of lading of their several property, he is the several factor of each, and not the joint factor of all.

*If the words of the power do not ex vi termini import a joint endorsement, is there anything in the context to fix their meaning? The counsel on the other side have referred to other joint words in the preamble; but, surely, words used in the same manner, cannot strengthen the argument drawn from the words of the power itself. We admit it is manifest from the power, that the parties intended that *108all should be put upon the paper offered for discount, as endorsers, but this does not justify the inference that they should jointly endorse. All of them having agreed to become the endorsers of Steenbergen, each was interested that all should endorse, and thus that Steenbergen’s credit should not only be sustained, but continued at the bank; that he might not be immediately called upon for payment, or they, through his failure to do so, be subjected to such a demand.

In examining this power, it is obvious that it was the intention of the parties, that Steenbergen should have the benefit of the endorsements of all the principals on such paper, as he should offer for discount. It is also apparent that there is a studied absence of all words, which would import a restriction to a several or joint endorsement; whilst the extended and unlimited nature of the power, is evinced by the general words at the close of the instrument. It is true, that .the general words in the instrument, will be restricted where there is an ascertained limit in the preceding part of it, but the general words are never rejected where in the grant of authorit3r a discretion is allowed to the agent. Withington v. Herring, IS C. C. L. R. SOI. Parke’s opinion. In this instrument, the words giving the power, are peculiarly appropriate to authorize a separate endorsement. The agent is to do the act. With the consequences of that act he has nothing to do. The law defines the obligation or contract arising out of it. There is nothing restrictive or technical in the grant of *power. The words sanction equally a several and joint endorsement, leaving the choice of the mode to the agent.

The clause following the primary grant of power, is confessed^' large enough to authorize any mode of endorsement, and if the previous grant be ambiguous, or too strict, the only function of the additional clause, is to dissipate the ambiguity or to remove the restraint. Atwood v. Munning, and Rosseter v. Rosseter, which were cited to shew that these general words are unmeaning, only shew that these words do not extend the power to other objects than those embraced in the primary grant: but, when the principal object may be attained by different modes, these words at least authorize a discretion to use either of the modes. Withington v. Herring, supra.

The object of these parties was to give to Steenbergen the benefit of their credit, and the co-operation of all in imparting that credit. It is admitted that all must endorse; and if all do endorse, then that requisition of the power is complied with. As to the benefit of their credit, the several endorsement of all was at least as apt, as any other. Indeed, the object might have been frustrated, had the endorsement been restricted as to the mode. It would prevent the endorsement of any bill or note made payable to one of the constituents; and under the usage of the bank.might have prevented the discount of any paper, endorsed under the power. This usage, although it is not such as to constitute law, is certainly to be considered as shewing, that parties knowing that usage, as they assume by the power to know it, cannot be intended to have placed a restriction as to the mode of endorsement, which would frustrate the object of the power.

The argument, hitherto, has proceeded on the concession, that the power is to be construed strictly. But this concession is not required by the principles of law ^applicable to the case. The genéral rule is, that the words used in a grant are to be taken most strongly against the grantor; and the cases of sureties, and grantors of a power are no exceptions to the rule. In the case where it is doubtful, which of two things can be done under a power, the words are to be taken most strongly against the grantor, and the rule only forbids implications in addition to that which is plainly granted. We do not claim, to extend the authority of the agent to any thing forbidden, or to preclude him from the performance of any act authorized by the power. The use of the plural “we,” “our,” &c. do not govern the construction, but are to be taken secundum subjectam materiam. Nor does the union of parties in the creation of a power infer jointure of contract in the contract to be made. Every grant of power, must take effect from the sole power of each. Each grants for each, and the entire power to bind any one springs entire from him, and as the power springs exclusively in respect to each from each, each has full power at will to revoke it.

• There is a clear distinction between joint words in a letter of attorney, and in a contract. When a contract is made, it has its fixed form, and is the measure of right or responsibility. When a power is given to make a contract without specification of form or modes, there is nothing to restrict the agent to any one mode. A power from two to give their bond—it may be executed by a contract under seal with or without a penalty, and the agent may give it in either form; and may in either case make it joint and several. When the substance of the authority has been pursued, the selection of modes impliedly follows, unless there be express restrictions: and although the agent selects the mode carelessly, or injudiciously, or even fraudulently in respect to his constituents, if without notice of the fraud to the party claiming under the power he may be responsible, but his acts bind his constituents if within the patent authority. *The question here is not a question of incidental power. The power claimed is primary, and depends upon the question, whether the primary power embraces discretion as to the mode of its execution? And that discretion exists unless a specific mode be prescribed, or the mode used be forbidden. The authorities cited by the counsel who opened these causes, sustain these propositions.

We admit that if the mode of executing *109the power selected by the attorney, violates any of the objects of the power, it is not to be used. In this case it is insisted that this is done, in respect to the diligence imposed upon the holder of the bill; that by the mode of endorsement adopted, one or more might be discharged, whilst the others were held liable.

There is nothing on the face of the power or inferrible from it, which indicates that the parties intended that all should be held bound to the bank, or all discharged. They could have no interest in having all held bound to the bank, or all discharged. There was no necessity for it, if the endorsers were inter se common sureties; and if they were not common sureties, they had no right to demand it, or complain, if it was not done.

The right to contribution between the endorsers did not, to any extent, depend on the order in which their names stood upon the bill; as is clearly evident from the principles, on which the right to contribution depends. It is said that it is an inflexible rule, that the contract of endorsement, makes the prior endorser liable to the succeeding one. But this is not correct. The extent of the rule is, that the order of endorsement is prima facie evidence of the order of responsibility inter se. So endorsement is prima facie evidence of value; but that prima facie case is liable to be rebutted by evidence: Thus an endorsement without recourse, on the face of-the endorsement defeats the prima -'facie case. Story on Bills, 236, *\*214. And where from the nature of the relation of endorsers inter se, resulting from the agreement under which they became such, there is a just claim for contribution, the order of ■ endorsement cannot affect that right; and if the parties have not thought proper to put their agreement upon the face of the power, they cannot require those dealing with their agent to take knowledge of it. Story on Agency, § 73. There certainly is nothing in this power, which indicates an agreement between the endorsers for contribution. The agent was not informed, and was not obliged or authorized to enquire into the private agreements between the parties; and therefore could not be under any obligation to mould the execution of the power with reference to such right.

It is insisted, that the conceded requisition that all must endorse, makes the implication clear that all were to be equally bound. But nothing being known as to the purpose or agreement for contribution inter se, the attorney could not mould the endorsement to preserve the right. The parties might have stipulated that they should all contribute equally ; or that one or more were to be primarily responsible. In such case, the agent should not indicate by the form of the execution of the power, the responsibilities of the parties between themselves.

The principles which govern the doctrine of contribution, are clearly settled in the cases of Deering v. Winchelsea, 2 Bos. & Pul. 270; Harrison v. Lane, 5 Leigh 414; Stout v. Vause, 1 Rob. Rep. 169; Love v. Wall, 1 Hawkes’s R. 313; 10 Serg. & R. 75. The case of The Farmers Bank v. Vanmeter, only shews that where there are successive endorsements for accommodation, w'ithout concert or common agreement between the endorsers, they are liable inter se in the order in which they endorse. 3 Peters 470, only sustains The Farmers Bank v. Vanmeter, and shews that the *order of endorsement is but prima facie evidence that the responsibility is in the same order. In this case, the endorsers did not choose the order of endorsement, and they did not consider it of any moment. It was not in the power of the attorney to choose for them, so as to have any effect on the responsibility between them; and no order accidentallj' used by the attorney can have the slightest effect on that responsibility.

*

Written Instruments — Construction. — Upon tie question of the construction of written instruments, the principal case is cited and approved in Redd v. Com., 85 Va. 651, 8 S. E. Rep. 490.

†

 Negotlable Paper—Accommodation Indorsers—Order of Liability.—See *foot-note*to Hogue v. Davis, 8 Gratt. 4, where there is a quotation from Willis v. Willis, 42 W. Va. 522, 26 S. E. Rep. 515, which case cites the principal case; also, monographic *note*on “Bills, Notes and Checks" appended to Archer v. Ward, 9 Gratt. 622.

SCOTT, J.

The record in this case presents for our decision, but a single question ; and that lies within the narrow limits of a short letter of attorney constituting an agent with authority to sign the names of his principals, as endorsers on certain bills and notes to be thereafter drawn by a third person.

A wide range has been taken by the learned counsel on both sides, in the discussion of this question, leaving nothing unsaid which can be said on either side.

I do not deem it necessary to follow them step by step; nor to go into a minute analysis of the cases cited to enforce, or illustrate those rules of construction which are to serve as our guides. I will content myself with stating the principles deducible from such of them as apply to the question before us.

It is insisted by the counsel for the defendant in error, that all delegations of power must be strictly construed.

The object of construction in all cases, is to ascertain the intention of the parties, or more properly speaking, the meaning of the instrument: for we are bound to say that the parties intend, what the written instrument declares. It not infrequently happens, that we have to settle the construction of a contract in regard to questions, which never occurred to the parties to it. And were we permitted to indulge in conjecture and probabilities, nothing is more probable than that the difference between one joint endorsement and several *successive endorsements, never occurred to the makers of this power of attorney. We shall best carry out their intentions by construing their language neither strictly nor liberally, but fairly: and this, I apprehend is, in general, the true rule. Some of the cases relied on by the defendant’s counsel, will be found on examination, rather to enforce a strict obedience to the mandate of the constituent, than any rigor of construction in ascertaining what that mandate is. On the other hand cases have been cited which decide, that when the words of a letter of attorney *110admit of two constructions, they shall, as in other grants, be construed most strongly against the grantor; that the grant of power to do a particular thing, carries with it the power to employ appropriate means; and where no particular mode is either prescribed, or forbidden, he may adopt any which does not disappoint some purpose of the grant. It is not necessary in this case, to reconcile any apparent discrepancy between the cases on this point. All agree that when the power, whether it be conferred in express terms, or by fair implication, is once ascertained, the agent cannot depart from it. He can neither go beside, nor beyond, nor fall short of it. He must do the very thing which he is empowered to do; and cannot substitute an equivalent. His power being an emanation from his constituent, exists only to the extent to which it is imparted. It is incorrect to say that, an agent may exercise his discretion where it is not restrained. What is called a restriction, is more properly an exception of that which would otherwise be granted, either in express terms or by fair implication. Nor is it necessary that a reason should be given for the limits within which the agent is confined. The appointment is the voluntary act of the principal. He is under no obligation to repose confidence in another, or part with his power over his own property. His will, whether it be the result of sound judgment, or wild caprice, is law. Story on Agency, p. 85, ? 75. *In construing all instruments, powers of attorney included, we are not at liberty to depart from the plain and obvious meaning of the words. They may nevertheless be restrained, or enlarged, by the subject matter. Words importing juncture, may be construed distributively; and vice versa. Cases which furnish examples of this exception to the common sense rule, which refers us to the words employed by the parties, as the exponents of their intentions, were cited in the argument. Slingsby’s case, 5 Coke’s R. 18 b.; Windham’s case, Id. 7 b. ; James v. Emery, 2 Cond. Exch. R. 290. The principle settled in these and other cases on the same subject, will be found in a note in 5 Coke’s R. 19 b.

> “Whenever the interest of the covenantees is joint, although the covenant is in terms joint and several, the action follows the nature of the interest, and must be brought in the names of all the covenantees. But where the interest of the covenantees is several, they may maintain separate actions, although the language of the covenant be joint. ”

Keeping these principles in view, let us proceed to the case presented by the record.

[The judge-stated the facts and then proceeded.]

The legal effect of several successive endorsements is, that each endorser has a right to look for . indemnity, to. all the endorsers who precede him, whether they endorse for accommodation of the drawer or for value received ; unless there be an agreement aliunde, different from that evidenced by the endorsements. 5 Munf. 252 ; 4 Rand. 553._ By a joint endorsement for accommodation of the drawer, all the endorsers are cosureties, bound to contribution: and if such an endorsement had been made in this case, Beirne would have a right, by virtue thereof, to call on the others to share the burden: unless there was an agreement, proved by evidence aliunde, that he should bear the whole, or more than an aliquot part. It cannot be questioned that it was competent *for the parties to occupy the relation among themselves, of cosureties, and yet authorize their agent to endorse for them severally; for although such endorsements would be prima facie evidence of a different agreement, it would not be conclusive. It would, however, throw upon the endorser suing for contribution, the burden of proving a different contract, from that evidenced by the endorsements. The task might, and in many cases Would be a difficult one. In this case, the authorit3r of the agent is in writing, and as will be hereafter shewn, furnishes the proof. But although found in the record in this case, it does not, necessarily, make part of the record in a suit on these endorsements. If the power was duly executed, the plaintiffs might recover on the count which charges Beirne as sole endorser, by his own hand; and he could not call for the production of the power of attorney. Under our statute he could file no plea which would call for that evidence, unless he swore to it; and that he could not do if he had authorized his attorney to make a several endorsement for him.

Supposing the parties to stand in the relation of cosureties, as between themselves, there are several other considerations which would render a joint endorsement preferable to several successive endorsements. Upon a joint endorsement, it would be necessary for the bank to give notice to all the endorsers; a duty imposing a light burden upon the bank; requiring nothing more than common prudence would dictate for its own safety; nothing more than a knowledge of the residence of those, on whose responsibility the draft was discounted ; (a knowledge without which their responsibility would be unavailing;) and the labour of writing, and putting into the post office; a letter to each of them; (labour commonly performed by the notary;) whereas prompt notice of the dishonour of the draft might be of vital importance to the endorsers. All would be, instantly, set at work, for the benefit of each. So much importance *does the law attach to notice, that it requires of the holder the utmost diligence in giving it. Upon several endorsements, the bank, if it had been so minded, might have given notice to. one only; and in this very case every count in the declaration avers notice to Beirne alone. And- were such the fact, he was under no obligation to give notice to the others to entitle him to sue on an agreement for contribution. Such an *111agreement is not a mercantile contract, but is governed by the common law: and the party seeking to enforce it, is under no greater necessity of giving notice, than he would be if the contract were in the form of a bond of indemnity. The party charged, is entitled to no notice, but that which is furnished by the contract itself: so that the first notice of the demand, might be the suit to enforce it.

Upon a joint endorsement, all must be sued; and although under our statute, judgment might be given against one only, or if against all, the goods of one might be taken in execution, yet each would stand an equal chance of escape. Upon several endorsements one might be selected as the first victim; as has been done in this case. A judgment against all would bind the lands of all; and if one paid the debt, he would be entitled to the benefit of the lien. In a suit for contribution, a joint endorsement would be evidence for the plaintiff; several endorsements would be evidence against him. Upon several endorsements, the one who is sued would have to litigate questions with the bank; and being unsuccessful, would have to change sides, and litigate them over again with the others; and might be unsuccessful in both instances. In this very case, had the judgment below been against the defendant, and affirmed by an equal division of this court, although conclusive upon Beirne, the whole question would be open in a suit brought by him against another endorser.

*In a joint suit, a judgment against all the defendants would be conclusive upon the questions in issue. There is, then, an essential, and material difference between joint, and several endorsements; even where the endorsers occupy inter se, the relation of cosureties; and if the power of the agent extend only to one, he cannot make the other.

In examining the question, whether the attorney in this case, was authorized to present the endorsers, to the bank, and to the world, as liable to each other, in the order in which their names appear upon the draft, it is important to ascertain their true relation. If it appears by the power of attorney, that they are responsible to each other, in the order in which their names are endorsed, it would be conclusive to shew the authority of the agent so to place them on the draft. General words which standing alone, would import a power to make a joint endorsement only, would be construed distributively in such a case. If, on the contrary, it appears by the power of attorney, that the parties to it intended to take a common risk, and share the burden equally, it will go far to shew that they did not intend to be held out to the world, in a different character. If Andrew Beirne did not intend to embark his fortune in the same bottom with John B. Steenbergen, and sink or swim with him, it will go far to shew that he did not intend to peril his credit, by holding himself out to the | bank, and to the world, as having encountered that hazard. If he did not intend to | interpose himself as a shield for the protection of the other endorsers, it will go far to shew that he did not intend to authorize his, and their agent, to make a contract for him, which would prima facie subject him to that liability; and lay him under the necessity of extricating himself from it, by producing other evidence, which if the authority had been by parol, he might find it impossible to do.

*What then was the relation in which these endorsers stood to each other? Have we any sure foundation on which to rest an answer to this important question? and what is it? We have in this record, as I think, a certain and sure foundation on which we may safely rest a satisfactory answer; and that is the letter of attorney itself.

In order to constitute an agreement, it is not necessary that the parties should use words of contract, as “we covenant,” “we promise,” “we agree.” It is sufficient if what they have done amounts in law to an agreement. It is not necessary, therefore, that we should find in this power of attorney, an agreement in so many words, that they would share equally any loss which the proposed endorsement of Steenbergen’s paper might occasion. It is enough if it appears that the transaction to which they are parties, imposed that obligation.

When two or more persons are sureties for another, the law implies a promise from each to the other, to contribute equally towards any loss which may be occasioned thereby. If they become sureties by successive endorsements on mercantile paper, as that is a form of contract which in general binds the first to indemnify the second, the law presumes that they mean to stand as they have placed themselves. But if there was a previous communication between them, which resulted in an agreement to become endorsers for the accommodation of the drawer, the later presumption is removed', and the original owner restored. ‘ ‘Mutual liability arises from mutual agreement to become bound for accommodation, unexplained, or uncontradicted by other circumstances.” Love v. Wall, 1 Hawks’s R. 318. Upon turning to the power of attorney in this case, we find that it gives a history of the connection of the parties, and all that they have done touching this matter, from the first application of Steenbergen to them to become his endorsers, to the final act of signing, sealing, and *delivering the letter of attorney. The beginning, progress, and termination, of every thing, save the act of their agent, connected with the transaction.

There was not only the communication, which in the case cited from Hawks, was held sufficient evidence to be left' tó a jury, from which to infer a mutual agreement to become sureties, but the whole instrument speaks a language too plain to be misunderstood. They all speak together, and *112say “John B. Steenbergen hath applied to us Samuel Coffman,” &c. &c. “to endorse” his paper; and “all have consented thereto. ’ ’ The appli cation was not made to one to endorse, and to the others to guarantee the paper thus drawn and endorsed, but uno flatu to all to “endorse.” 'The answer was not, if one would agree to indemnify the rest they would endorse after him, much less did they marshal the whole line, but all with one united voice “consented.” They all embarked at the same instant, in the same enterprise, not' in single file, but shoulder to shoulder. I consider it clear, therefore, that as between themselves, they intended perfect equality.

Having thus agreed to unite their fortune in support of their friend, and the time and place, when and where resolves were to become action, making it inconvenient to act in person, they select an agent to act for them. To do what for them? That thing which they had determined upon? Or another and a different thing? Having agreed to unite themselves, and share equally, a common danger, did they authorize their agent to sever them, and place one in front, and another in the rear? This they might unquestionably do. The question is, have they done it? Bet the power of attorney answer. After reciting the request of Steenbergen, and their answer, it proceeds thus, ‘ ‘Now therefore know ye that all whose names are herein before written, have made, ordained, constituted, and appointed, and by these presents do make” &c. &c. There is nothing here which ^imports a severance of their union. All unite in the delegation of authority. I deem it unnecessary to discuss the question, on which the counsel on both sides exercised their ingenuity, whether this can with technical propriety, be called a joint grant. It is sufficient for my purpose, that the persons making it, acted collectively. The power conferred, if it existed in separate particles prior to the grant, united in the grantee, and formed a unit. It constituted him, not the attorney of each of the grantors separately, but the attorney of all collectively. The grantors all speak together, and say “we appoint,” “our attorney.” When the attorney speaks he is the mouth piece of all, when he writes he is the hand of all, when he signs the name of one he does it by authority of all. There is nothing, then, in the relation of the attorney to his constituents, which severs the original union of the letter. What do they authorize him to do? ‘ ‘ For us, and in our names, and our behalf, to sign our names as endorsers.” There is nothing in the words employed to define the thing to be done, which imports a severance of that unity which pervades the rest of the instrument. What he does is to be done in the names of all, and for and on behalf of all. Does the thing itself sever that unity? He is to sign their names as endorsers. He cannot do this by a single stroke of the pen. He must write the name of one, before he can write the name of another. The name of one must, therefore, stand before the name of the others, whether written in a perpendicular, or horizontal line; and this is all that results of necessity, from the nature of the act to be done. He may so sign as that the signing shall be in the -names of all, and for and on behalf of all jointly. He may so sign as to carry out the whole purpose of his constituents, to wit, to sustain the credit of Steenbergen, and share the risk equally.

But he is to sign their names as endorsers on all notes, bills, and drafts, drawn by Steenbergen, and it is supposed *that a bill or note made payable to one, cannot be jointly endorsed by him and others; and the bill in this case being made payable to Beirne, the attorney could not make a joint endorsement of, and for Beirne and his other constituents; and, therefore, the words “all bills” cannot be satisfied, unless the attorney is authorized to make successive endorsements. Be it so. The question then is whether the words “all bills” shall control all the other words of the instrument, which import united action and common liability, and authorize the agent to defeat some of the leading purposes of his constituents, to wit, prompt notice to all, and perfect equality amongst themselves, when the other object of his agency, to wit, the accommodation of Steenbergen, does not require it. It is just as easy to draw a' bill payable to all as to one, and precisely the same labour to endorse one as the other. The bank would just as soon discount it in the one form as in the other. Why should it not? Bills payable to two or more payees, who are not partners, are as well known to the law as any others. True no such bills have ever, as far as we are informed, been presented to this bank for discount. As none have been presented none have been refused. There can be no usage of the bank which rejects them. Nor are we informed of any by-law, rule, or resolution of the stockholders, directors, or any officer of the bank, which repels or discourages them. All that we know, is that none such have been offered within the memory of one'of the discount clerks. Why, I again ask, should the bank reject them? Because notice must be given to all who unite in a joint endorsement? The more names upon the paper the better the security. To make them available all must have notice, whether payees or not. Any officer of this bank who would curtail the number of those who were willing to become liable for the large sum due by Steenbergen, to save himself the trouble of giving notice, or fail to give notice to all who were responsible ^whether first, second, or remote endorser, would deserve to lose his office. But a joint suit must be brought. And what is the trouble of that? next to nothing. But let us return to the words of the letter of attorney. He is to endorse “all bills,” but he is to make but one species of endorsement. He is to make an endorsement which will be in the names of all, and *113for and on behalf of all his constituents; and if a bill is presented to him on which he cannot make such an endorsement, he must either reject the bill, or vary the endorsement ; and which shall he do? Could he hesitate? Change the form of your draft he would say to Steenbergen, make it payable to your own order, or to bearer, or to all my constituents, or to a third person, and let him endorse it to them, without recourse if he so please, and then I will, for and on behalf of all my constituents, endorse their names upon it. The bank will as readily discount it in the one form as in the other, and thus the whole purpose of my agency will be accomplished. You will be accommodated, they will all have prompt notice if it shall be dishonoured; and equally divide the loss, if any shall arise. No one of them will have to meet the responsibility alone. All will be on a footing of perfect equality. The letter of attorney concludes by “giving and granting full power and authority in and about the premises, for effecting the purpose hereby intended, as fully in all respects” as the parties themselves could do if personally present. Concede that this confirmatory clause, which, as a matter of course, makes part of every letter of attorney, is not in all cases idle repetition, mere verbiage, what are the “premises” in regard to which, the “purpose” for which this plenary power is conferred? Why to give to Steenbergen the united aid of these his friends, to sustain his credit at the Bank of the U. S. by pleading their united responsibility as endorsers on his paper; giving him credit, and placing them in a condition of ^perfect equality; and the agent has just as much authority to disappoint one part of their purpose as another; just as much power to endorse other notes and drafts, to be discounted at another bank, as to destroy the equality intended by his employers. I find nothing in the language of the instrument, nothing in its scope and purpose, nothing in the subject matter, nothing in the usage of the bank, to warrant several and successive endorsements.

It is not necessary to say any thing in the case of the Farmers Bank v. Beirne. What is said in the other case, applies a fortiori to that. Both judgments must be affirmed.

The other judges concurred.