
    Drew v. Robertson.
    OUe who endorso^ a'note to which he wainiot a'pai-ty, is presumed'fo’bind:himselí’ as surety.
    Appeal ffom the Fifth District Court of New Orleans, Buchanan, J.
    
      J. Uunlap, for the appellant. Benjamin and- Micou, for the' defendant.-
   The judgment of the court was pronounced' by

King-, J.

This suit is instituted to recover the amount of two promissory notes, drawn by' Felix Bosworih, payable tethe order of the defendant, and'endorsed by the latter. Upon each- the name' ef the plaintiff appears as second' endorser. The plaintiff alleges that he endorsed the notes at the request of the defendant, as the guarantor of the latter, for the purpose of facilitating-their' negotiation, and that he has sinchbeen compelled to pay them. The defence' set up is,-that the'plaintiff gave the notes to the defendant in- payment of a debt, and endorsed them as a guarantor of the maker. There was a judgment in the’ court below in favor of the defendant, and-the plaintiff has appealed'.

It appears from'the evidence', that the plaintiff purchased a quantity of mer-chandise from the defendant, fbr which he' stipulated to give to- the latter in’ payment notes and other demands against third persons:- In pursuance of this’ agreement he caused two notes' to -be executed by Felix Bosworih', who was his' debtor, payable to-the order of the defendant, and'delivered them to the latter.' Whether or not they bore' the' endorsements' of the plaintiff at the time of their delivery, does not appear. The defendant, however, subsequently gave them1 in payment to Turner &f Woodruff, and at that time the name of the plaintiff figured on the back of each, as second endorser.

The plaintiff does not pretend that he intended to incur the liability of a second endorser, and it is clear from the evidence and the nature of the iransae - tion, that such was not his intention. It devolved upon him then to show that the intention of the parties and character of the endorsement were those alleged in his petition, otherwise he is presumed, by the settled jurisprudence of the State, to have bound himself as surety. No such proof has been made. 1 Ann. Rep. 249, 274. This legal presumption is strengthened, in the present instance, by the,fact that the notes were given in payment of a debt due by the plaintiff to' the defendant, and that while they were in the possession of the latter, theyjbore the endorsement of the plaintiff.

Judgment affirmed.-  