The undertaking of an indorser is always collateral, unless made otherwise, by a special agreement. But the defendant was not an indorser; because he was neither promisee nor indorsee. Palmer v Grant, 4 Conn. Rep. 389. His contract was, therefore, necessarily special, and whatever the parties chose to make it. Had it remained blank, it must have been considered, prima facie, a guaranty, or nothing. This depended on the inducement and intention, with which the defendant wrote his name; and the question now is, could these be proved by parol.
Had it been technically an indorsement, it might have been explained by testimony aliunde, as the late Chief Justice Swift, whose authority on this occasion will not be questioned, informs us, that the obligation, implied by a blank indorsement, is, that the note is due, and collectable, by the use of due diligence ; and if filled up with a different stipulation, the assignor may show, that the indorsement was in blank ; and that while it remains in blank, in the hands of the original assignee, it is admissible to prove any special agreement, made between him and the assignor, at the time of the assignment, as that there was no warranty, &c. Swift’s Ev. 332. 1 Swift’s Dig. 434. Herrick v. Carman, 10 Johns. Rep. 224. Barber v. Prentiss, 6 Mass. Rep. 430. Surely, then, if the assignor may show, by parol, that there was no warranty, the assignee may show there was a guaranty.
*318In Josselyn v. Ames, 3 Mass. Rep. 274. where the defendant had indorsed in blank, the note of John Ames, payable to the plaintiff it was decided, that the plaintiff might fill the blank with an absolute promise to pay, and maintain an action upon the promise, on proving, by parol, a consideration, and the defendant’s confession, that he was answerable for the debt.
In Ulen v. Killredge, 7 Mass. Rep. 323. 235. upon a similar state of facts, the defendant claimed, That this being a promise to pay the debt of another, was void by the statute of frauds. " But we are of opinion,” said the court, “ that the defendant’s signature upon the back of the note, with the authority given by him, to write over the signature, a sufficient guaranty, and such guaranty being accordingly written, and proved by parol, may be considered as a memorandum signed by the party, within the intent of the statute.”
In While v. Howland, 9 Mass. Rep. 301. where the defendant with Coggeshall, had indorsed the note of Taber, payable to the plaintiff, who wrote over their names, a joint and several promise to pay the note, it was proved, that Taber had agreed to give a note to the plaintiff with two indorsers, and that the defendant objected to putting his name on this note, because it was not drawn as intended, but he did put his name upon it, and contended, that he ought to be treated, as an indorser. But the court said, " We are satisfied, that this case is within the reason of Hunt v. Adams, 5 Mass. Rep. 358. and that the effect of the defendant’s signature is the same as if he had subscribed the note on the face of it, as surely.”
In Moies v. Bird, 11 Mass. Rep. 436. where the defendant had indorsed a note payable to the plaintiff but declared at the time, (not to the payee,) that he would not be accountable, but would write his name to make the plaintiff easy; the court said, “ that the effect of his signature was to make him absolutely liable to pay the note.”
In Upham v. Prince, 12 Mass. Rep. 14. the promisee of a negotiable note transferred to the plaintiff indorsed it thus : “ March 25, 1809, I guarantee the payment of this note within six months. A. H. Prince.” The court said “ that the defendant’s engagements amounted to a promise, that the note should Re paid at all events, within six months.”
But these decisions, it may be said, are not law in Connecticut. If, however, they are according to the course of the *319common law, they will be respected, wherever that law is respected. They certainly are not peculiar to Massachusetts. Though many of them were made by a Parsons ; they have all been sanctioned by a apencer. Un whom can we repose with more safety ?
“ Had it appeared,” said Ch. J. Spencer, in Herrick v. Carman, 12 Johns. Rep. 159. 161. " that the plaintiff, (not payee nor indorsee,) had indorsed the note for the purpose of giving Ryan, (the maker,) credit with Lawrence Carman & Co. (the payees,) then, I should have considered him liable to them, or any subsequent indorser; and the plaintiff’s indorsement might have been converted into a guaranty to pay the note, if Ryan did not, according to the decision of the supreme judicial court, in Massachusetts. Josselyn v. Ames, 3 Mass. Rep. 274.
In Nelson v. Dubois, 13 Johns. Rep. 175. the defendant had indorsed in blank the note of Brundige, payable to the plaintiff, and the plaintiff offered to prove, that the defendant agreed to become the surety of Brundige, and said he considered himself bound to pay the note, and guarantied the payment of it to the plaintiff; which the court below rejected as within the státute of frauds. But the judgment was reversed, by the supreme court; and Spencer, J., who delivered their opinion, after citing and commenting on the previous cases in Massachusetts, and elsewhere, concluded in these words: “ I confess, I do not perceive, that this case is at all within the statute. The defendant’s promise is not to pay on the default of Brundige, but is an original undertaking as surety ; and the defendant is as much holden, as if he had signed the body of the note.”
In Campbell v. Butler, in error, 14 Johns. Rep. 349. Campbell & Harvey indorsed in blank, two notes, made by Low, payable to Butler, who wrote over their names severally : “ For valae received, I undertake and promise to guaranty the payment of the within mentioned money, to the within mentioned James Butler." It was proved, that the defendant indorsed the notes to give Low credit with Butler ; and the counsel for the defendant below contended, that he was liable as a mere in-dorser, on certain conditions only, as to due notice, &c. whereas, by the guaranty, he is made liable at all events. The holder has no right to convert the engagement of a mere indorser into a guaranty. But the court said : “ The question is, wheth*320er the plaintiff below was authorized to write such a contract, over the names of the indorsers of the notes, respectively, and can sustain, an action upon that contract ? According to the decision in Nelson v. Dubois, and as the law Is recognized in Herrick v. Carman, we think the plaintiff below had a perfect right to recover as on an original undertaking to pay, by each of the indorsers as guarantors of the note.
In Allen v. Rightmere, 20 Johns. Rep. 365. the defendant being the promisee of Toan’s note, indorsed it thus : “ For value received, I sell, assign, and guaranty the payment of the within note to J. Alien, or bearer. L. Rightmere.” The defendant claimed, that before the plaintiff could recover on the note, he must prove a demand of the maker, and notice to the defendant. But Ch. J. Spencer, who delivered the opinion of the court, said : “ Proof of demand and notice of non-payment, were not necessary. The defendant’s engagement, is, in effect, that Toan should pay the note, or that he would pay it. It is the duty of the debtor to seek the creditor, and pay his debt, on the very day it becomes due. As regards the maker of the note, and to render him liable, no demand is necessary. A demand of payment is necessary only to fix an indorser, or a surety, whose undertaking is conditional. An indorser does not absolutely engage to pay. It is a conditional undertaking to pay, if the maker does not, upon being required to do so, when the note falls due, and upon the further condition that the indorser should be notified of such default. The defendant insists, that he stands in the situation of an indorser merely ; but such is not the fact. The undertaking here is not conditional ; it is absolute, that the maker shall pay the note, when due, or that the defendant will himself pay it. In Tillman v. Wheeler, 17 Johns. Rep. 326. and the cases there referred to, it was taken for granted, that upon a guaranty, such as this, no demand or notice, would have been necessary. Upham v. Prince, 12 Mass. Rep. 14.”
In Russell v. Langstaffe, Doug. 514. the defendant had indorsed five blanks, with intent to have them filled with negotiable notes, payable to the plaintiff, by Galley, the intended maker, with the defendant’s indorsement in blank. At the trial, it was objected, that these notes being blank, when indorsed, were not then promissory notes; and that no subsequent act of Galley would alter the nature of the defendant’s signature, which, when written, was a nullity. But Lord Mans-*321Jield, said, “ The indorsement on a blank note, is a letter of credit for an indefinite sum. The defendant said, “ trust Galley to any amount, and I will be his security.” It does not lie in his mouth to say the indorsements were not regular.”
The authority of this case was recognized by Buller, J. in delivering his opinion in Dom. Proc. in Lickbarrow & al. v. Mason & al. 6 East, 21. n. wherein he said : “ He who delivers a bill of lading indorsed in blank to another, not only puts it in the power of the person to whom it is delivered, but gives him authority to fill it up as he pleases.”
So, in Collins v. Emett, 1 Hen. Black. 343. Lord Loughborough held, that a party’s signing a blank paper and delivering it to B. to draw a bill of exchange, payable at such time, and to such person, as B. should think fit. was a binding instrument.
In Violett v. Patten, in error, 5 Cranch, 142. Patten, as indorser, sued Violett, as indorser, of Brookes note. The indorsement was in blank, by Violett, upon blank paper, with intent to give credit to Brooke, with Patten. In delivering the opinion of the supreme court of the United States, Marshall, ”Ch. J. said inter alia : “ Violett has signed his name on this paper, for the purpose of giving Brooke a credit with Patten, and his signature has obtained that credit. The consideration is precisely the same, whether his name be on the face or back of the paper.” “ The objection [that the indorsement preceded the making of the note,] comes with a bad grace from the mouth of Violett. He indorsed the paper with the intent, that a promissory note should be written on the other side ; and that he should be considered as the indorser of the note. He is now concluded from saying or proving, that it was not filled up, when he indorsed it." It was also objected, that the statute of frauds and perjuries, rendered the contract void; hut the court held it did not.
It may, perhaps, be said, that some of these cases are irrelevant to the point in question. But in my humble opinion, they all clearly evince, that the import of a signature or indorsement in blank is not so immoveably Sxed and, determined as has been sometimes supposed; and that blank Indorsements and signatures, may be moulded into any shape to effectuate the intention of the parties. Vide Hungerford v. Thompson, Kirby 392. Brewster v. Dana, 1 Root, 266.
I advise a new trial
*322Chapman, J. was of the same opinion.