
    William L. Brunson vs. John O’Connor.
    J. O. was first endorser of á note in bank drawn by M., and W. L. and W. B. were second and third endorsers. The note in bank was taken up, and a note drawn by J. 0., and endorsed by "W. L. and W. B. substituted in its place. The bank, afterwards, recovered judgments against J. 0., W. L., and W. B., on the note, and by arrangement among them, each paid a certain amount, and satisfaction was entered by the sheriff on they?, fa.: — Held, that W. B. was not entitled to have the entry of satisfaction in the case against J. 0. vacated, as made by mistake, and they?./», enforced for his benefit.
    BEFORE GLOYER, J., AT SUMTER, FALL TERM, 1856.
    Tbe report of bis Honor tbe presiding Judge, is as follows:
    “ On tbe 28tb January, 1852, Tbomas McGtee drew a promissory note for three hundred and fifty dollars, payable eighteen days after, at tbe Bank of Camden, to tbe order of John O’Connor, which note was endorsed by John O’Connor, William Lewis, and William L. Brunson, in tbe order in which they are named.
    “The Bank obtained judgments against the maker and endorsers, and, the former dying insolvent, O’Connor, with Lewis and Brunson as his endorsers, had a note discounted in the Bank of the State to satisfy the judgment against them. On this latter note the Bank of the State obtained separate judgments against O’Connor, and against Lewis and Brunson.
    “By agreement between O’Connor, Lewis and Brunson, O’Connor paid one hundred dollars, and, with the other two, an equal proportion of the balance. Lewis stated that this was the understanding of the parties; that he so understood his legal responsibility, and that ‘he had paid his share of it, and did not care to inquire further.
    
      
      “ Henry S. Eveleigb, deputy sheriff was informed tbat tbis was tbe agreement of the parties, and he received from them and applied the money in that way. He understood from them that O’Connor should pay one hundred dollars, and that the balance was to be paid equally by the three.
    “Satisfaction having been entered in both cases by the sheriff,
    “At Spring Term, 1855, an order was passed requiring John O’Connor and John 0. Ehame, sheriff, to show cause why the entry of satisfaction by the sheriff, in the case of the Bank of the State vs. John O’Connor, should not be set aside and vacated as made by mistake, and the fi. fa. enforced for the benefit of the said W. L. Brunson, to the extent of all payments made by him.
    “ Hearing the answer made by O’Connor and the sheriff it was ordered by the presiding Judge, that an issue be made up, in which W. L. Brunson shall be the actor and John O’Connor the defendant, to determine the question whether the said execution be satisfied.
    “ On this issue the jury rendered a verdict for the defendant.”
    The plaintiff appealed, and now moved this Court for a new trial, on the grounds:
    1. Because the endorsers of an accommodation note for the benefit of the drawer are not liable as co-sureties.
    2. Because no agreement was proved on part of plaintiff before endorsing second note to the Bank, to be liable with the other endorsers, O’Connor and Lewis, on the first or McGee note, as co-surety.
    3. Because no agreement between O’Gonnor, Lewis and Brunson in reference to their liability on the one note or the other was proved or pretended, until after judgment was obtained and fi.fas. issued on tbe second note, in reference to which, the issue was ordered.
    
      Spain and Richardson, for appellant.
    Moses, contra.
   Curia-, per O’Neall, «L

We think the verdict was right, and must stand. It will be remembered that this is not an action to make endorsers on an accommodation note liable to one another as co-sureties, as was the case in Cathcart vs. Gibson, 1 Rich. 10; but it is an attempt by setting aside the entry of satisfaction to make the first endorser of the original note and the maker of the last note, refund a sum paid by the last endorser under an arrangement made among the three to produce satisfaction of all the judgments.

The jury were right to conclude that this payment was made in accordance with the original agreement between the co-endorsers..

There is no agreement here to be enforced by action; nudum pactum can have therefore nothing to do with it.

The parties have themselves carried out their agreement, and unless it was shown that this was done by mistake of fact, or of law, as was illustrated by Lawrence vs. Beaubien, 2 Bail. 623, there can be no claim for relief.

The motion is dismissed.

Wardlaw, Withers, Whither, Munro, and G-loyer, JL, concurred.

Motion dismissed.  