#### Edward J. Long *versus*James S. Colburn.

A promissory note was subscribed thus: “Pro *W.*G.— *J. S.*C.” It was holden to be the promise of *W. G.,*if *J. S. C.*had authority to malte it; and if not, that he would be liable to the promisee in a special action of the case.

Assumpsit on the following promissory note, *viz.: “ No*273, $301. *Boston,*17th March, 1812. For value received, I promise to pay Mr. *Edward J. Long,*or order, on demand, three hundred and one dollars, with interest after four months. Pro *William*Gill,—■ J. S'. Colburn.”

The action came on for trial upon the general issue, at the last November term in this county, before *Parker,*J.; when, it appearing in evidence that the defendant had a letter of attorney from *William Gill,*who was in *Europe*when the note was given, and when the action was commenced *;*and *that the note was for*a premium on a policy of insurance effected for *Gill*and on *Gill’s*property ; and the note being, in the opinion of the judge, signed by the defendant for Gill,—a nonsuit was directed, with liberty to move the Court to set it aside; the defendant agreeing, in case the non-suit should be set aside, to be defaulted.

*Sullivan,*for the plaintiff,

argued that this was the promise of the defendant, and not of *Gill.*So was the language of the note, — “I promise,” &c. It is immaterial whether the promise was for *Gill,*or for any one else. It was still the defendant’s own promise. If he had intended it as the promise of *Gill,*he would have subscribed the note *William Gill,*by *J. S. Colburn,*which is the usual form of signing by an attorney. The defendant may have his action over against *Gill,*after he has paid the plaintiff the money due. The plaintiff could not maintain an action upon this note against *Gill.*

*Crane*for the defendant.

* Parker, J.,

delivered the opinion of the Court.

In this case, *Colburn,*the defendant, is declared against upon a promissory note made by him; and when the note was offered in evidence to support the declaration, it appearing to be, as construed by the judge, a promise in behalf of *William Gill,*a nonsuit was directed, on the ground that the evidence offered did not support the declaration. If the note warranted a verdict against the defendant in the present action, the nonsuit must be set aside, and judgment be rendered for the plaintiff upon the default of the defendant.

But we are all very clear that the nonsuit was properly ordered; *97it being certain that a verdict could not have passed for the plaintiff upon this evidence, if the cause had gone on to trial. It appears upon the face of the note itself, that the present defendant was not to be considered as the promisor. He signed his own name, Pro *William Gill;*and the plaintiff’s remedy is against *Gill,*if *Colburn*had authority to make the promise for him; and if he had not, a special action of the case might make *Colburn*answerable.

This authority may be by paroi, by letter, by verbal directions, or may even be implied from certain relations proved to exist between the actual maker of the note and him for whom he undertakes to *act;*and it may sometimes be inferred from the subsequent assent or ratification of the party who is charged by the writing. But in all cases, the name of the party intended to be charged must appear upon the instrument itself.

But in the case at bar, the evidence exhibited by the defendant, although unnecessary for the purpose of discharging himself, abundantly shows that he had authority to promise for *Gill,*and that *Gill*is accountable for the contents of this note.

The counsel for the plaintiff has ingeniously endeavored to construe this note into a promise of *Colburn*to pay this money for *W. Gill.*But the obvious and true construction of the instrument is a promise of *Gill*by *Colburn,** his agent [ * 99 ] or attorney. And, indeed, if the construction given by the plaintiff’s counsel were correct, he could not recover in the present action; for he should have set forth that, *Gill*being indebted, *Colburn,*the defendant, for forbearance, or some other legal consideration, promised to pay. There is, however, no reason to suppose this the nature of the transaction, and there seems to be no difficulty in the plaintiff’s pursuing his proper remedy.against *Gill.*The nonsuit must remain, *(a)*

*Costs for the defendant.*

(a)

**If the *instrument*appear to be executed in the name of the principal, the form of the words used is not material. *—Wilks*vs. *Bach,*2 *East,*142. — *Spittle*vs. *Lavender,*5 *Moore,*270. — 2 *B. & B.*452. — *Combes’s*case, 9 *Co.*77, a. — *Frontin*vs. *Small,*2 Lord *Raym.*1418. — *White*vs. *Small,*6 *D. & E.*642. — *Taylor*vs. *Dobbin, Sir.*399. — *Mott*vs. *Hicks,*1 *Cowen,*513. — *Episcopal Char. Soc.*vs. *Episcopal Soc. Dedham,*1 *Pick.*372. — *Mann*vs. *Chandler,*9 *Mass. Rep.*335. *—Mechanics’ Bank*vs. *Bank of Columbia,*5 *Wheat.*326.