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February 1, 1808


ERROR to the circuit court for the district of Maryland, in an action of ussumpsit brought by John and Jeremiah Naylor against Daniel Grant. The verdict and judgment below were for the plaintiffs on the second count of the declaration, which stated in substance, that it was agreed between the plaintiffs and defendant, that if the plaintiffs would at the request of the defendant sell and deliver to a John Hackett and Alexander Grant 'divers goods, wares and merchandizes,' he, the defendant, in consideration of the same, promised to pay the plaintiff as much money as they reasonably deserved to have therefor, in case Hackett and Grant did not pay for them; and that, in consideration of the defendant's promise, and at his request, they sold and delivered to Hackett and Grant 'divers goods, wares and merchandizes,' and reasonably deserved to have therefor 2, 168l. sterling, of which the defendant and Hackett and Grant had notice; and which Hackett and Grant did not pay, but refused, and are insolvent; of all which the defendant had notice, and in consideration of the premises promised to pay the plaintiffs the said sum of 2,168l. sterling, of the value, &c. which he has failed to do. Upon the issue of non assumpsit, the plaintiffs read in evidence a letter, admitted to be signed by and with the name of the defendant, and directed 'To Messrs. John and Joseph Naylor and Company,' in the following words: 'Baltimore, 6th April, 1795. 'Gentlemen, 'By the recommendation of Mr. Travis, I take the liberty to address you by my son Alexander, who visits England with a view of establishing connexions in the commercial line there in the different manufactories and others. He is concerned with Mr. John Hackett, of this place, under the firm of Hackett and Grant. For their plan I refer to themselves. Have therefore only to add, that I will guaranty their engagements, should you think it necessary, for any transaction they may have with your house.' The plaintiffs also produced and offered to read in evidence a commission (with interrogatories, and an exhibit and depositions) directed to two persons, in the usual form, commanding them to take the examination of the witnesses in writing upon the interrogatories, and to send them to the court closed up and under the seals of any two or one of them, and requiring them to take the oath annexed to the commission, but not directing before whom, or in what manner the oath should be taken. The depositions under this commission went to prove that there was no commercial house at Wakefield, (the town where the plaintiffs lived), under the name of John and Joseph Naylor and Company. That the firm of the plaintiffs was John and Jeremiah Naylor and Company, and that the Mr. Travis mentioned in the letter was the agent of the plaintiffs. That the letter was in fact intended for that house, and was delivered to it by Alexander Grant, of the house of Hackett and Grant, who obtained goods upon the credit of it, and who became insolvent. To that reading of this commission and depositions the defendant objected, contending that the commission was illegally and defectively executed; but the court below overruled the objection, and suffered them to be read. The defendant then prayed the court to instruct the jury, that upon this evidence the plaintiffs were not entitled to recover upon either count in the declaration; but the court refused, and instructed the jury that the evidence was proper and legal to support the issue on the part of the plaintiffs, and sufficient in law for that purpose, if by the jury believed to be true, and if they should believe that the letter was intended to be addressed, and was addressed, by the defendant to the plaintiffs. To which opinions of the court the defendant excepted, and brought his writ of error.

The opinion of the court was delivered by: Livingston, J. Did not the old declaration contain a count like the second count of the new, upon which the verdict found?

Martin, for the plaintiff in error.

1. The first bill of exceptions brings into view the informality of the execution of the commission to examine witnesses. The authority to issue such a commission, and the mode of executing it, depend upon the act of assembly of Maryland, passed at November session, 1773, c. 7. s. 7. by which it is enacted, 'that such commission shall issue, and the commissioners shall be appointed and qualified, and such interrogatories be proposed or exhibited, and such commission be executed and returned, and the depositions of affidavits taken in pursuance thereof, shall be published in the same manner and form, as in the case of a commission issuing out of the court of chancery for the examination of witnesses residing and living out of this province; and the depositions or affidavits which shall be duly made or taken in virtue of any commission which shall issue in pursuance of this act, or copies thereof duly attested, shall be admitted in evidence at the trial of the cause.'

The mode of issuing and executing commissions from the court of chancery in Maryland has always been conformable to the English practice, except that, by the act of assembly of 1785, c. 72. s. 15. the parties are permitted to be present at the examination, and may put additional interrogatories.

1st. We object to the execution of the commission, because it does not appear that the commissioners were sworn according to law. They themselves certify that they took the oath annexed to the commission, but do not say before whom, nor in what manuer. It ought to have been certified by some person who administered the oath, and who was competent in law to administer it; and such certificate ought to show how it was done. It is like the case of a commission to ascertain the boundaries of lands, in which case it has been uniformly holden in Maryland, that if the commissioners only return that they have acted according to law in general terms, their return is insufficient. They must certify in what manner they have executed their commission, that the court may judge whether it be legally executed.

2d. The commissioners were only authorised to examine witnesses upon the interrogatories sent out with the commission. But it does not appear that any interrogatories were sent with the commission.*fn1 *

3d. The defendant had no notice of the time and place of executing the commission. He filed no interrogatories. Notice is required by the principles of natural justice, and by the constant practice of the court of chancery. 1 Harrison's Ch. Prac. 444.

4th. The return of the commissioners ought to have been under seal.

LIVINGSTON, J. Was not the envelope under their seals?

Martin. Yes; but that is not sufficient; they ought to have put their seals to their certificate.

LIVINGSTON, J. I have never seen any other seal to the return of commissions than the seal to the envelope.


5th. The commission was taken out upon the first issue which was made up, and before the second issue upon the amended pleadings,*fn2 ** upon which the cause was finally tried.

Martin. Upon filing a new declaration, it is to be considered as a new case altogether. Eq. Ca. Ab. 490. 2d vol. pt. 1. pl. 5. new edition.

2. The second bill of exception draws in question the applicability of the evidence to the counts of the declaration, and its sufficiency to support the plaintiffs' action. The verdict being for the plaintiffs upon the second count only, confines the inquiry to that count.

The letter upon which the action is founded was not addressed to the plaintiffs, but to John and Joseph Naylor and Company.

A person cannot take by a grant made to him by a wrong name. Moore, 197. Panton v. Chose. 1 Salk. 7. Cro. Eliz. 897. ca. 22. Field v. Wilson. Willes, 554. 556. Evans v. King.

No parol evidence is admissible to vary a written agreement. 3 Dall. 416. Clarke v. Russel. 1 H. Bl. 289. Gunnis v. Erhart.

This was a promise to pay the debt of another, and within the statute of frauds. Cowp. 227. Jones v. Cooper. 2 T. R. 80. Matson v. Wharam. 1 Salk. 23.

The written agreement must show the consideration as well as the promise. The whole agreement must be in writing. 5 East, 10. Wain v. Warlters. No parol testimony can supply the defect.

The declaration must set forth the special agreement precisely. The probata must agree with the allegata. 2 Bos. and Pul. 281. Wilson v. Gilbert. 3 Bos. and Pul. 559. Whitwell v. Bennett. 6 T. R. 363. Spalding v. Mure. 5 East, 111.note. Bordenave v. Bartlett. 3 Esp. Rep. 205. 3 Bos. and Pul. 456. Turner v. Eyles.

The plaintiffs cannot, upon this evidence, recover either upon the special counts or the money counts. 4 Bos. and Pul. 351. Cooke v. Munstone.

The letter is not an absolute guarantee, but upon condition that John and Joseph Naylor should think it necessary. There is no evidence of notice to the defendant that the plaintiffs thought it necessary. They ought to have given the defendant notice that they held him responsible, in order that he might take means to secure himself.

It was not a continuing guarantee. It is to be considered as extending only to the first importation of goods; but the plaintiffs have recovered ...

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