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 or 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 manner. 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 authorized to ex Grant V. Naylor. * 227 Grant V. Naylor. * 228 in amine witnesses upon the interrogatories sent out with the commission. But it does not appear that terrogatories were sent with the commission. (a) any *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 envelop under their seals? 1 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 envelop. 5th. Martin. The commission was taken out upon the first issue which was made up, and before the second issue upon the amended pleadings,(b) upon which the cause was finally tried. LIVINGSTON, J. Did not the old declaration contain a count like the second count of the new, upon which the verdict, was found? Martin. Upon filing a new declaration, it is to be considered as a new case altogether. Eq. Ca. Abr. 490. vol. 2. 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. (a) Harper. The rule of the court below is, that no commission shall issue until ten days after interrogatories filed. It is to be presumed that the clerk did not disobey the rule of court. The commissioners have returned the interrogatories with the depositions. (b) On the first trial a juror was withdrawn, and the plaintiff had leave to amend. Upon which he filed a new declaration, and a new issue was made up, in substance the same as the first. Grant V. *The letter upon which the action is founded was not addressed to the plaintiffs, but to John and Joseph Naylor. Naylor and Company. A person cannot take by a grant made to him by a wrong name. Moor, 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. & Pull. 281. Wilson v. Gilbert. 3 Bos. & Pull, 559. Whitwell v. Bennett. 6 T. R. 363. Spalding v. Mure. 5 East, 111. note. Bordenave v. Bartlett. Esp. Rep. 205. 3 Bos. & Pull. 456. Turner v. Eyles. The plaintiffs cannot, upon this evidence, recover either upon the special counts or the money counts. Bos. & Pull. 351. Cooke v. Munstone. 3 4 The letter is not an absolute guaranty, 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 guaranty. It is to be considered as extending only to the first importation of goods; but the plaintiffs have recovered upon the transactions of several years. The declaration ought to have set out specially what engagement Hackett & Grant had made and failed to comply with. Ingersoll, contra. There are only three questions made in this case. ant liable to the extent of the plaintiffs' demand. * 230 Grant V. Naylor. * 231 2. Whether the objection, arising from the mistake in addressing the plaintiffs as John and Joseph, instead of John and Jeremiah, is not obviated by the proof, without an averment in the declaration that the same persons were meant. 3. Whether the evidence under the commission was admissible. 1. On the first point he contended that it was apparent on the face of the letter, and from the nature of the business in which Hackett & Grant were about to engage, that a continuing guaranty was intended. And that if there was any ambiguity in the expressions of the letter upon that point, they ought to be taken most strongly against the writer, and that a letter of credit was a contract which required to be executed among merchants with peculiar good faith. 2. Parol evidence was admissible to show that John and Joseph meant John and Jeremiah. 10 Co. 124, 125. b. It is admitted that if the obligor be sued by the name in the bond, and it be proved by parol that the defendant delivered the bond, he is estopped to deny his name to be as in the bond. So in assumpsit, parol evidence may be given to show that the contract was made with A. by the name of B., and to show that the writing was delivered to A. *It is the custom in Europe among merchants to keep the name of a firm long after the original copartners are dead. Suppose a letter of credit addressed to the old firm be delivered to persons not named in the letter, and they furnish the goods, shall they not be entitled to recover upon this letter of credit? In the present case, suppose there is no such person as Joseph, then his name is a surplusage, and it is a letter to John. And then what is the objection to a suit in the name of John and Jeremiah? It may state the contract according to its legal import. If a bond be made in the name of John, and James deliver it, it is the bond of James. So may a letter addressed to John and Joseph, delivered to John and Je remiah, constitute a contract with John and Jeremiah. It was competent to prove that Alexander Grant delivered the letter to John and Jeremiah, and that there was no other firm in Wakefield of the name of Naylor. It was not necessary to state in the declaration that the contract was in writing, nor that John and Joseph meant John and Jeremiah. If John and Jeremiah had drawn a bill of exchange in the name of John and Joseph, John and Jeremiah would have been liable. So on a policy of insurance in the name of A., but for the use of B., it is not necessary to aver it to be so, but an action may be brought directly in the name of B. So if I direct my correspondent, having funds in his hand, to make insurance, and he fails to do so, I may charge him as insurer, without stating specially the circumstances which render him liable. So in a case of executor de son tort, I charge him as executor generally, without stating the facts of intermeddling with the goods, &c. whereby he is liable to be sued as executor. Ingersoll inquired of the court whether it was required that he should say any thing upon the execution of the commission and the depositions. MARSHALL, Ch. J. The only doubt entertained by the court upon that point is as to the change of the is sue. *Ingersoll. The case cited from Eq. Ca. Abr. furnishes the answer. In that case there was no issue when the depositions were taken, but here was an issue the same in substance as that upon which the cause was tried. On the next day, Harper, on the same side, was stopped by The Court, as to the point of the change of the issue, saying that the issue was in substance the same, and that the court was satisfied that the judgment was not erroneous on that account. Harper. The cases in which parol evidence is admitted to explain a written agreement, are, 1st. Of ambiguity; and, 2d. Of mistake. 1. Of ambiguity, where it is patent, it is the province of the court to explain it from the instrument itself, and the judges cannot resort to evidence dehars. Grant V. Naylor. * 232 |