
    Robert McCreary vs. William Bird.
    
      Promissory Note.
    
    A. sued 0., as drawer, on a promissory note, drawn by B. payable to the order of A. and endorsed by 0. The proof was, that B. bought property from A., and was to give him his note, with security The note was drawn, signed by B. and delivered to him, who took it off and returned it with O.’s signature on the back: — Held, that 0. was liable as drawer.
    A. after the making of the note, in order to negotiate it, endorsed it by writing his name above O.’s. — Held, that A. did not by such endorsement discharge 0. from his liability as drawer.
    BEFORE WARDLAW, J.,‘AT CHARLESTON, FALL TERM, 1859.
    The report of his Honor, the presiding Judge, is as follows: “ Assumpsit on a note, of which, in its present form, this is a copy, viz:
    
      Charleston, June 12tA, 1856.
    “ Twelve months after date, I promise to pay to the order of Robert McCreary, one thousand dollars, for value received. Interest from date.
    E. M. MOOD.
    
      {Indorsed) R. McCreary, W. Bird.”
    “ There were counts against this defendant, as maker, and as guarantor; and the common money counts.
    
      “ The handwriting of the defendant having been admitted, James Mosely testified as followsi
    
    “ I am brother-in-law of the plaintiff, and keep his books at his mill in Barnwell District. A mill, which belonged to John McCreary and Robert McCreary, was sold to Knight & Mood. It was agreed that Knight should give a note, with security, to John McCreary, and Mood give the same to Kobert McCreary. I saw this note written ; Mood took it away, and after some days brought it back, and delivered it to plaintiff. The name of Bird was then on the back, and plaintiff’s name not. The plaintiff kept the note till it was nearly due, then sent it to Charleston for eolleetio'n in a Bank, (and according to instructions which he received,) then put his name on the back above Bird’s. The parties I have mentioned, all lived in Barnwell except Bird, and him I did not see at any of the times I have referred to, although I know that he lives in Charleston.
    “ The plaintiff contended, that the defendant was liable • under the ’authority of Stoney vs. Beauhien, and other cases that have followed that. The defendant insisted upon distinctions that arose from the want of .proof of intention in this case. I referred the fact of intention to the jury ; saying that, if they were satisfied, from the circumstances shown in evidence, that the defendant, when he put his name on the back of the note, intended to assume a liability different from that of second indorser, they should find for the plaintiff ; otherwise not. The Verdict was for the plaintiff.”
    The defendant appealéd, and now moved this Court for a new trial, on the grounds:
    1. Because the defendant cannot be held to be liable as a maker, either jointly or severally, with E. M. Mood, on the note sued on, inasmuch as there is no evidence that he intended, when he placed his name on the back of the said note, to make himself responsible in any other way than as indorser.
    2. Because, in the absence of any evidence to vary the contract of the defendant from that imported on the face of the note, and in the absence of any proof that he assented to the transfer of the note, made by E. M. Mood to the plaintiff, he is entitled t'o the benefit of the presumption, that the liability he assumed was merely that of an indorser after the plaintiff.
    
      Buist, for appellant.
    Simonion, contra.
   Curia, per O’Neall, C. J.

In this case, the principles settled in Stoney vs. Beaubien, 2 McM. 313; Cockerell vs. Milling, 1 Strob. 444; Devore vs. Munday, 4 Strob. 15; Baker vs. Scott, 5 Rich. 305, and Carpenter vs. Oaks, 10 Rich. 18, fully sustain the ruling of the Judge below.

After the note was drawn payable to the order of Robert McCreary, the plaintiff, by Mood the maker, the defendant wrote his name on the back. This made the case very similar to Stoney vs. Beaubien, and when the further facts are added, that it was intended by Mood and McCreary that there should be a surety to the note, and that when Mood delivered the note to McCreary, the defendant’s name was upon it, the cases are almost identical. Eor there the object of Zealy was to raise money, his note was not due, and was drawn payable to Stoney or order, from whom he expected to get the money. Beaubien wrote his name on it, and he was treated as a maker. The same result must be here for the note of Mood was not due, was payable to the order of McCreary, and surety was to be obtained; the defendant wrote his name upon it, and like Beaubien, he must be treated as a maker.

Eor, let it be asked, why did he write his name upon a note not payable to him, and in which he had no interest ? The answer must be, that that was either a nugatory act, or he intended to give credit to the paper. The latter must be the conclusion.

That McCreary, afterwards wrote his name above Bird’s, to have the note discounted in Bank, sufficiently explains the circumstance that his name is first, and he might have struck his narqie out.

The Judge below did more for the defendant than he was entitled to. He left it to the jury to say whether' the defendant intended to make himself liable differently from second endorser.

Notwithstanding this advantage, they found for the plaintiff, thus fixing his liability in fact, as well as in law.

The motion is dimissed.

Johnston and Wakdlaw, JJ., concurred.

Motion dismissed.  