(After stating the facts.) A new trial is asked on two grounds : 1. That Horsejield was not a competent witness; 2. That if admissible, as a witness, then the evidence does not support the declaration.
It appears to me, that Horsejield is liable to the plaintiff as endorser ; and, consequently, is directly interested, whether the note be considered that of the company, or the defendant. It is alleged that he is not interested, because it was no part of the original understanding that he was to be liable ; that his endorsement, as agent, was a notice to all subsequent holders, that he would be responsible as agent only, and not individually. The facts upon which this question must be decided, are such as appear in the case, independent of Horsejield’s testimony ; and these shew nothing about the original execution of the note. Horsejield, it is true, signed the endorsement, “ Israel Horsejield, agent.” But why agent ? Agent for whom ? He is the payee of the note individually, and it does not appear, except from his own testimony, that he was agent for the company. They cannot be sued upon this endorsement ; and no judgment could be rendered against Horsejield, which would bind their property. He is therefore liable personally, or there is no liability attached to this endorsement. In Thatcher v. Dinsmore, (5 Mass. Rep. 299,) it is decided that the guardian of an insane person cannot avoid *541responsibility upon a note, signed by as guardian. (Foster v. Fuller, 6 Mass. Rep. 58, S. P.) In Taft v. Brewster, (9 John. Rep. 334,) the defendants executed a bond, by the style of “ Trustees of the Baptist Society of the town of Richfield.” The Court say, the bond is given in their individual capacities ; and the addition of Trustees, fyc. is a mere description of the persons. (See also, Wilkes et al. v. Back, 2 East, 142. White v. Cuyler, 6 T. R. 176. Combes’ Case, 9 Co. 76, b. White et al. v. Skinner, 13 John. Rep. 307.) I confess, therefore, I can see nothing in the facts of the case, independent of Horsefield’s testimony, which looks like discharging him from his liability as endorser.
I concur in the answer, which has been given to the argument that this witness was rendered indifferent by a balance of interest, being liable at all events, either to the plaintiff or defendant, the latter of whom, as surety, would be entitled to stand in the place of the former. The very contract relied upon, pre-supposes that the defendant must be put in funds by the company, before any liability could attach to him personally. Being thus paid by the maker, he could never afterwards call upon the endorser.
It then becomes important to enquire whether, independent of jHorsefield’s testimony, there was sufficient evidence before the jury to warrant the verdict. Rejecting the testimony of Horsefield, the facts proved are—the making of the note —the recovery upon it against the plaintiff, as endorser—the admission of the defendant, that the plaintiff’s inducement to endorse was the agreement, that glass enough should be put into the hands of the latter to indemnify him—and the defendant added that, but for the election of Mr. Abeel, as director, the agreement would have been complied with. A further admission was, that the first glass which came down, was to have been thus appropriated ; and that if the defendant had received glass enough for the pur. pose, he ought to pay the note; but he at the same time denied that he had received enough. This is the amount of ' the testimony on the part of the plaintiff, rejecting Horse-*542field’s ; and certainly it is not sufficient to sustain either of the counts in the declaration, which go upon the guaranty.
The plaintiff, then, cannot sustain this verdict, unless the defendant is personally liable on the note. He is so, undoubtedly, unless the company is liable. (Randall v. Van Vechten, 19 John. 63, per Platt, J. and the cases cited by him.) Formerly it was holden that a corporation could be bound by its corporate seal only. Later adjudications have established a different doctrine ; (Chitty on Bills, 20 ; and it is now perfectly well settled, that an action of assumpsit will lie against a corporation upon the simple contract of its authorized agents, when acting within the scope of the legitimate purposes of such incorporation. (Bank of Columbia v. Patterson’s Adm’r, 7 Cranch, 306. Danforth v. Schoharie Turnpike Company, 12 John. 227. Dunn v. The Rector, &c. of St. Andrew’s Church, 14 id. 118. Randall v. Van Vechten, 19 id. 60.)
Independent of Horsefield’s testimony, it appears that the "note was given by the defendant as president of the Woodstock Glass Company, for wood furnished the company in prosecuting the manufacture of glass, the purpose of .the incorporation. The company being liable, even on an implied promise, there can be no need of authority to shew that they are equally liable upon an express one—a promissory note. A corporation may give a promissory note, negotiable within the statute of Ann, (1 R. L. 151 ;) for. should it be objected, that this statute is confined to notes when drawn by any person, &c. and that corporations are not mentioned, I answer, it has been decided by this Court, that the word person includes corporations in a variety of cases ; (15 John. 382;) and there is no doubt, that upon a fair construction of this act, corporations are in-eluded. In my opinion, therefore, this was a good promissory note against the company.
I agree, that if Horsefield is to be considered a mere agent, and not liable to the plaintiff at all, he is a competent witness, and his testimony supports the declaration ; for the variance of the word agent, added to his name, I do not think materiah It might be rejected as surplus-*543But being liable, I think, as endorser, for aught that appears, independent of his own testimony, he is, of course, an incompetent witness. As the other testimony does not justify the verdict, it ought to be set aside, and a new trial granted, the costs to abide the event of the suit.
Judgment for the plaintiff.