
    Jonathan Eccles vs. John G. Ballard, Indorser.
    An indorser to a note made payable to bearer is liable as upon a new bill to the bearer.
    Whether there was any artifice used to get the indorsement, or if it was made under circumstances that would exempt the indorser from liability, is for the jury; and the question of diligence in making a demand on the drawer and notice, in the same manner depend on circumstances, and must be left to the jury.
    Kershaw district, Fall Term, 1822.
    Tried before Mr. Justice Gantt.
    
    THIS action was brougbtagainst the indorser to the following note — “ Ten days after date, I promise to pay to John G. Ballard, or bearer, the just sum of three hundred dollars, for value received of him this 26th March, 1821. Signed, John Boykin."
    
      
      Indorsed — u I promise to pay the within note if the drawer should fail to do so, to Jonathan Eccles, for value received.
    Signed, John G. Ballard.”
    The facts proved were that the note was presented for payment six days after it became due, to the drawer, who refused to pay, of which the indorser received immediate notice. It was further proved that the drawer lived seven miles from Camden, the place of residence of the indorsee and indorser, and that there was no post office nearer the drawer’s residence than Camden. The hands writing were admitted. It was then proved that the indorsement was filled up after it had been signed, and that when made, the plaintiff declared it should only be used as an authority to receive the debt; on which testimony, the presiding judge ordered a nonsuit, on the ground that the evidence did not support the counts in the declaration, under the usage of merchants.
    A motion was now made to reverse the order for non-suit, on the ground that the action w-ill lie against an indorser on a note payable to bearer,' and that due diligence was proved.
   Mr. Justice Colcock

delivered the opinion of the court:

The first point to be decided ill this case is, whether the indorsement of a note, payable to bearer, creates a legal liability in the indorser to pay the note, and on this point I am satisfied ; for the note was negotiable in its nature, and although it would pass by delivery, without indorsement, yet if one choose to put his hand on it, it shews that it passed from him, and is a new bill to pay to the bearer; (Z Johnson’s Rep. 439. Lovelass On Exchange 40 ; Maxwell On Bills, 48.) The action then could be maintained on this indorsement ; and the next questions are¿ should not the question of diligence and the alleged fraud in the obtaining and using the indorsement been left to the jury for their determination, and on them think there can be no doubt ? Whether there was any. artifice used to got the indorsement, or if it was made under such circumstances as would not render the indorser liable, were facts that ought to have gone to the jury. (See 2 Const. Rip. 33, Reyal vs. Davidson.) And in the same manner, the question of diligence which may depend not only on the distance .at which the parties reside, but a variety of other circumstances should have also been left to the jury. The non-suit was improperly ordered, and the motion is therefore granted.

Levy 8? Me Willie, for the motion.

Carter, contra.

Justices Johnson, Huger, Richardson and Nott, concurred.  