
    *Hogue v. Davis & als.
    July Term, 1851,
    Lewisburg.
    (Absent Cabell, P„ and Baldwin, J.)
    Negotiable Paper — Accommodation Endorsers — Order of Liability, — where several endorsers of negotiable paper have endorsed it for the accommodation of the maker, they are responsible in the order of their endorsements, unless there has been an agreement among them to be jointly and equally bound: And the burden of proving such an agreement is upon the prior endorser wholseeks the benefit of it.
    This was a motion in the Circuit court of Monongalia county by James T. Davis, Waitman Davis and three others, against Bushrod Q. Hogue, to recover from him the amount which they had been compelled to pay as subsequent endorsers upon- a note made by Robert Davis to Bushrod Q. Hogue, and discounted at the bank in Morgantown. The note bore date July 29th, 1844, and was for 2S0 dollars, payable in ninety days, at the Bancaster Bank in the State of Pennsylvania, and was endorsed by all the parties for the accommodation of Robert Davis. Before the note fell due, Robert Davis absconded.
    The ground of defence was, that all the endorsers were to be jointly and equally bound. The only witnesses who spoke to the making of the note, were John Davis, a brother of two of the plaintiffs, and Albert G. Davis a cousin. According to their testimony Hogue boared with Robert Davis, and endorsed the note at Davis’s house, in the absence of the other endorsers; and Robert Davis then took the note to obtain other endorsers upon it. That he applied to his father Thomas Davis to endorse it, who declined to do it, when Robert Davis told him there was no danger as both he and Hogue *would have to fail before said Thomas Davis could be liable. Albert G. Davis stated that Hogue informed him he had furnished Robert Davis money to buy cattle, and intended to do so as long as he wanted to do business, and that he was to have a share of the profits arising from the business. That this was before said Davis absconded, and after the witness had understood they had gotten money out of the bank at Morgantown.
    It was proved that after the note was protested and returned to the bank at Mor-gantown several of the endorsers, including Hogue, came to the bank for the purpose of making arrangements for its payment. They first proposed to give a bond for the whole amount, and the bond was prepared and some of them signed it.
    They arranged to borrow some four or five hundred dollars from a Mr. Han way to aid them in the payment; and a note was prepared and taken away by them but was not returned; and they all left the bank without making arrangements to take up the original note. Shortly afterwards some of the sureties informed Mr. Hanway they had ascertained that the note was not of such a character as they had supposed; and that they would not be liable as they believed, until the property of Bushrod Q. Hogue was exhausted; and that they declined taking the loan. On the same day they were at the bank, James T. Davis, one of the endorsers, had a conversation with the cashier of the bank, and that officer understood from him that although they might not be legally bound to pay any part of the note, yet they were joint endorsers with Hogue, or something to that effect, and did not intend to take any advantage of him; and that they considered themselves equally bound with Hogue as the cashier understood him. It seems probable that neither Hogue or the endorsers knew the difference between the note payable as it was and a joint endorsement of it.
    *The Circuit court gave the plaintiffs a judgment against the defendant for 1179 dollars and 38 cents, with interest from October the 6th, 1846, until paid, that being the balance due upon the note, after applying thereto the proceeds of certain property of Robert Davis, which the plaintiffs had been compelled to pay. And thereupon Hogue applied to this Court for a supersedeas, which was allowed.
    A. P. Haymond, for the appellant.
    Grattan, for the appellees,
    referred to Chalmers v. McMurdo, 5 Munf. 252; Farmers Bank v. Vanmeter, 4 Rand. 553; Bank U. S. v. Beirne, 1 Gratt. 234; McDonald v. Magruder, 3 Peters’ R. 470.
    
      
      Negotiable Paper — Indorsers—Order of Liability. — In Willis v. Willis, 42 W. Va. 524, 26 S. E. Rep. 515, it is said: “1 Daniel, Neg. Inst. § 703, says: ‘When several persons indorse a bill or negotiable note in succession, the legal effect is to subject them, as to each other, in the order they indorse. The in-dorsement imports a several and successive, not a joint, obligation, whether the indorsements be made for accommodation, or for value received, unless there be an agreement aliunde different from that evidenced by the indorsements. When the successive indorsements are for accommodation of other parties, the indorsers for accommodation may make an agreement to be jointly and equally bound, but whoever asserts such agreement must prove it. In cases, therefore, in which no such agreement is proved, the indorsers are not bound to contribution amongst themselves, but each and all are liable to those who succeed them.’ This clear statement is sustained by authority in almost all quarters, including authority binding us. Hogue v. Davis, 8 Gratt. 4 Bank v. Beirne, 1 Gratt. 265 : Bank v. Vanmeter, 4 Rand. 553; Shields v. Reynolds, pt. 3, 9 W. Va. 483; Hoge v. Vintroux, 21 W. Va. 1, pt. 2.”
      Por further information on this subject, see monographic note on “Bills, Notes and Checks” appended to Archer v. Ward, 9 Gratt. 622.
    
   By the Court.

The judgment is affirmed.  