concurred. He thought it unnecessary to consider the peculiar meaning, which, in this state, has been attached to the blank indorsements of promissory notes not negotiable ; as this depended on the local usage of this state; nor whether this meaning, with respect to indorsements made in this state, could be varied, by proof of a positive contract made at the time when a note was indorsed ; though were it necessary, in his opinion, it might be done. But in the present case, he thought the indorsement must be presumed to be made in the state of Rhode-Island ; and, in the absence of all evidence as to the laws of that state, was to be governed by the common law; and that by the common law, the holder of a note has authority to write over a blank indorsement the real contract between the parties.
Hosmer, Ch, J.The note in question was made by Ephraim Angell, at Providence, promising to pay to the plaintiffs a specified sum of money, at either bank in that town. The defendant is an inhabitant of Pomfret, in this state ; and the place where the indorsement was made, no where appears. It may have been made in Connecticut, or in either of the United States. This all important fact in the construction of the contract, should have been averred and proved. It is an established principle of law, that contracts must be construed by the lex loci where they are made ; (Medbury v. Hopkins, 3 Conn. Rep. 472.) although the remedy upon them must be governed by the laws of the state where it is sought. Atwater v. Townsend, 4 Conn. Rep, 47. If the agreement be made in a foreign country, the law of that country must be proved as a matter of fact; and in Westminster-Hall, the courts will not even presume what the law of such country is, upon any particular point. Fabrigas v. Mostyn, Cowp. 161. Male v. Roberts, 3 Esp. Rep. 163. So far has this principle been carried, that in the case last cited, Lord Eldon held the defendant bound to prove, that the defence of infancy was available, by the law of Scotland. Suppose it to appear, that the agreement was made in a foreign country, but the law of such country is not proved. The legal consequence is, from the necessity of the case, that the liability of the defendant is presumed to be the same with his liability in the state or kingdom where the action is brought. *323Brown v. Grace, 1 Dowl. & Ryl. 41. cited Stark. Evid. part iv. p. 568, 9. It must be so, or by infallible consequence, that he is not liable at all. The same principles have been recognized, by this Court, and applied to a transaction arising in the state of Massachusetts. Hebron v. Marlborough, 2 Conn. Rep. 18. Sterling v. Plainfield, 4 Conn. Rep. 114.
From the preceding remarks certain consequences are necessary and inevitable. Inasmuch as the place where the in-dorsement was made, is neither averred nor proved; and even the law of Rhode-Island, if inadmissible conjecture should suppose the contract to have been made in that state, is entirely unknown; the contract must receive its construction from the law of Connecticut. To such result this Court came, in the two cases last cited ; and there not having been proved to therm the law of Massachusetts, the undoubted rule, if it had been, known, the law of Connecticut was adopted.
What, then, is the law of this state, as applicable to the defendant’s indorsing his name in blank ?
By the plaintiffs, it is insisted, that over the defendant’s name they are empowered to write any contract in relation to the within note ; and, at least, that they may prove, by parol testimony, that the agreement specially indorsed, was actually, made.
On the other hand, I shall endeavour to maintain the following propositions. 1. That by the law of this state, an in-dorsement in blank on a promissory note not negotiable, or if negotiable, by one who is not a party to the note, to insure the maker’s responsibility, has a certain fixed import; and that such import is neither indorsed, in this case, nor conformable to the plaintiff’s declaration. 2. That over the indorser’s name the holder of a note cannot legally insert any contract made here, except that which the law imports. 3. That an indorsement of a promissory note is a written contract, and cannot be proved, by parol testimony, in whole or in part; and that such, testimony is in direct opposition to the statute of frauds and perjuries.
1. The law of Connecticut giving a construction to indorse-ments in blank on promissory notes not negotiable, and on negotiable n cone not a party to them, in order to warrant the ma responsibility, has long been settled. More than thirty years since, in Bradley v. Phelps, 2 Root 325. it was determined, by the highest judiciary in this state, that such *324an indorsement was not an engagement, that the note should be Paid in all events, but that the indorsee, by the use of due diligence, should be able to obtain payment of the maker. From that period to the present time there has been no diversity of opinion on this subject. Before the determination referred to, it had been decided, that the purpose for which the note was indorsed in blank, whether to warrant the maker’s responsibility, or to authorize the collection of it,-might be proved. Smith, exr. v. Barber, 1 Root 207. Brewster v. Dana, 1 Root 266. But if a warranty of any kind was intended, the determinations of our courts, and the universal practice of the community, invariably and uniformly have declared, that the contract is conditional; not that the maker should pay the note at maturity, or that the indorser would pay it; but that it is collectible, by active diligence. Not a decision or dictum to the contrary, is producible. And however the courts in the contiguous states, have differed from us, in the construction of the before-mentioned contract, yet in one particular there has been a universal harmony; and that is, in considering indorse-mentsin blank on notes not negotiable, and on negotiable notes when made not by a party, but to insure the maker’s responsibility, as possessing the same legal effect.
The determination in Bradley v. Phelps has recently been followed, by this Court, in Huntington v. Harvey, 4 Conn. Rep. 124. and in Wilton v. Scott, 4 Conn. Rep. 527.; and the law is very accurately laid down, in the same manner, by the late Ch. J. Swift, in his treatise on Bills of Exchange and Promissory Notes, 342. and in the first volume of his Digest, 431. If the maxim stare decisis is any thing more than a name; if the people of this state have the privilege of certain rules of action, and are not the sport of perpetual vacillation and ruinous uncertainty; the law of Connecticut concerning indorsements of notes, as before expressed, is stable and unquestionable. There are many hundreds of such contracts, now, and at all times, existing among us,-the standing and almost universal mode of guaranty,-which will be evidence of obligations new and un-thought of, if the present attempt at the bar to change the construction of such engagements, shall meet with success.
That the written indorsement in question onformable to the legal import of an indorsement in blaH that such import does not sustain the plaintiffs declaration, are truths obvious and unquestionable. The defendant, by putting his name *325on the note in question, did not guaranty the payment of it, as the indorsement declares; nor that Ephraim Angell should make payment of it, at the expiration of sixty or ninety days, agreeably to the averment in one of the counts ; nor that at the end of the above period, he would pay the same, as another count has alleged. He merely contracted, that the plaintiffs, by the exercise of due diligence, should be able to collect it, if it were not paid at maturity.
That over the indorser’s name the holder of a note cannot legally insert any contract, except that which the law imports, is necessarily implied. The point was adjudged in Bradley v. Phelps, which is, in all respects, a fac simile of the case before the Court. The same doctrine was explicitly stated in Huntington v. Harvey before cited; in which case, it was said, by the Court: " The holder may not write over the indorser’s name a direct and absolute promise, nor insert any special contract, repugnant to the nature of a blank indorsement.” 4 Conn. Rep. 129. To the same effect is Welton v. Scott, 4 Conn. Rep. 527. See also Swift’s Ev. 142. 1 Swift’s Dig. 434.
It has been strongly contended, that the payee may insert over the name of an indorser in blank any contract in relation to the within note, The principle is stated without proper discrimination, to be admissible any where. But upon this subject I shall not enter, as it is entirely irrelevant to the case under discussion. Let it be admitted, for the sake of argument, that such is the law of WesTminster-Hall, of New-York and of Massachusetts. Still it was competent for this state to narrow the principle, and adopt a different law; and it has adopted it. So long as a question depends on the general common law, the determinations of courts in foreign states, who derive their rules, in common with us, from the same source, are entitled to high respect. But when, by usage, or by the decisions of our courts, we have changed the common law, and established a different rule, whether it be more or less wise, the differing determinations of other courts, are of no efficacy. This is the answer I give ; and, I trust, it is conclusive as to all the adjudications and principles abroad, on the subject under discussion. We knew of the diversity ; but have voluntarily create it, and established a law of our own.
It result that by the law of this state, an indorsee or payee of a note indorsed as aforesaid in blank, may not write over the indorser’s name any contract, except that which the law *326imports ; and that such an indorsement has not been written, in this case.
3. The indorsement of a note is a written contract, and cannot be proved, by parol testimony, in whole or in part; and such testimony is in direct opposition to the statute of frauds and perjuries.
By this position, I do not intend to assert, that the filling up of an indorsement over the name of one who has indorsed a note in blank, according to the legal import of the transaction, is invalid. The name itself implies the indorsement especially written. Neither do I affirm, that an indorsement may not be inserted over the name of an indorser, where the law authorizes the holder to write what he pleases. Proof of the name, in such cases, is proof of the indorsement. But I do insist, that the correctness of a written indorsement, cannot be proved, by parol, either totally or partially. In this case, such proof was offered, and was rejected.
“ Contract,” said a late learned Chancellor, in Parkhurst v. Van Cortlandt, 1 Johns. Chan. Rep. 283. “ cannot rest partly in writing, and partly in parol.” From this unquestionable principle it is apparent, that the indorsement under discussion not being proveable, by proof the indorser’s name only, the body of it cannot be sustained, by verbal testimony.
To the above evidence an incontrovertible objection arises from the statute of frauds and perjuries. No contract to charge a person for the debt of another, is valid, unless it be in writing. Stat. 246. But the plaintiffs offered to prove on. the defendant an agreement by parol, to pay another’s debt.
It must be borne in mind, that the note was made on the 14th of April, 1819; and that the name of the indorser was not put on the note until the 25th of April, 1820. Now, a promise, to be valid, with all its conditions and limitations, might be written at length, and signed by the party. A defective agreement, to be supplied, by parol proof, would at once open a door to perjury, and introduce all the mischiefs, which the statute of frauds and perjuries was intended to prevent. Vid. Parkhurst v. Van Cortlandt, 1 Johns. Chan. Rep. 273. and the cases therein cited. Where L. wrote his name, and affixed his seal, on the back of a lease, and it was agreed between him and T„ that C. should write an assignment over the signature and seal, for the absolute conveyance of the lease to T., and C. afterwards wrote the assignment, and delivered the lease to T., *327it was held, that the affixing of the hand and seal to blank paper, was not a note in writing within the statute of frauds. Jackson d. Lloyd v. Titus, 2 Johns. Rep, 430. “ To allow,” said Kent, Ch. J., “ the subsequent filling up of the deed, by a third person, to have relation back to the time of the sealing and delivery of the blank paper, in consequence of some parol agreement of the parties, is to open a door to fraud and perjury, and to defeat the wise and salutary provisions of the statute.” To the same effect was the determination of this Court, in Huntington v. Harvey, 4 Conn. Rep. 124. relative to the in-dorsement of a note in blank, which was endeavoured to be sustained by parol evidence. It is admitted, where an indorsement in blank has a legal import, or authorizes the holder to write any contract, that he pleases, over the name, that no objection arises under the statute. But if the contract might be supported, by parol testimony, it falls precisely within the law.
To conclude. In order to sustain their case, the plaintiffs must establish one or the other of these positions; either that by law they may write what they please over the indorser’s name, in relation to the within note ; or that they may prove, by parol, that what they have written, is conformable to the agreement of the parties. Neither of these assertions, in my opinion, is sustainable. On the other hand, the contract must receive its construction from the law of Connecticut, and by that law, there is a fixed legal import to a blank indorsement, which neither supports the writing in this case, nor either count in the declaration.
Brainard, J. was of the same opinion.New trial to be granted.
REGULAE GENERALES:
PASSED IN 1826.
1. In every writ of error, there shall be a special assignment of errors, and the Court will hear no other.
2. In all motions for new trial, the precise point made by the party, and the precise opinion expressed by the Court, shall appear upon the face of the motion: