
    Thomas Tillman et al vs. Zaccheus Ailles.
    A note payable to A., or bearer, is transferable by mere delivery ; the holder claims title as bearer, and the indorsement of A- is not essential to enable the bearer to bring suit upon it.
    If B., being the bearer of a note payable to A., or bearer, indorse and transfer it, he is liable as indorser, to the subsequent bearer, although A. has never indorsed it.
    Where a party is sued in assumpsit as indorser of a note, and pleads the general issue, he thereby admits the character of indorser in which he is sued.
    It is not error for a jury of thirteen in number to pass upon an issue in assumpsit; if the number were less than twelve, the verdict would be void.
    _ In error from the circuit court of Copiah county ; before the Hon. A. G. Brown, judge.
    The declaration in this case was in these words : “ The State of Mississippi, Copiah county; Circuit Court, May term, 1841; Thomas Tillman and Ephraim G. Peyton, by attorney, complain of Zaccheus Ailles, being in custody, (fee., of a plea of trespass on the case upon promises, <fcc.
    “ For that whereas one' William T. Scott, now a non-resident of this state, on the 16th day of September, 1838, in the county of Copiah aforesaid, by his certain promissory note in writing of that date, by the name and signature of Wm. T. Scott, promised on or before the first day of January, one thousand eight hundred and forty-one, to pay Lewis Kennedy, or bearer, fourteen hundred and two dollars for value received, payable in Mississippi currency, and then and there delivered the said note to the said Lewis Kennedy, who then and there transferred the same by delivery to the said defendant, who thereby then and there became the legal holder and bearer thereof.
    “ And the said defendant afterwards, to wit, on the day and year aforesaid, at the place aforesaid, indorsed and delivered the said promissory note to the said plaintiffs. And the said plaintiffs, on the day the said promissory note became due and payable, used due diligence, but could not find the drawer of the said note, he having absconded at the maturity thereof, beyond the limits of the United States to parts unknown, of all which the said defendant then and there had due notice. Yet the said defendant, although often requested, has not paid to the said plaintiffs, the said sum of money specified in said note, or any part thereof, to the damage of the said plaintiffs of three thousand dollars, and therefore they bring their suit. (
    “ E. G. Peyton,
    
      “Plaintiff’s Attorney."
    
    The defendant plead non assumpsit, not under oath.
    The case was tried, and the names of thirteen jurymen are inserted in the record as having passed upon the case.
    At the trial, the plaintiff read the note sued on ; proved the indorsement of the defendant, Afiles ; and proved that at the maturity of the note, it was presented to and payment demanded of Ailles ; and that Scott, the maker, had absconded from the country to avoid a prosecution for crime, and was at the maturity of the note in parts unknown. This being the testimony, the court instructed the jury that without the indorsement of Lewis Kennedy, the payee, the plaintiffs could not recover. To this exception was taken, the evidence embodied in the record and the cause brought here for revision.
    
      E. G. Peyton, for plaintiff in error.
    Formerly promissory notes were not negotiable within the custom of merchants, but now, by 3 and 4 Ann, they are put on. the same footing as inland bills of exchange. Butter v. Cocks, 6 Mod. 30; 1 Saunders Rep. 210, in note.
    A bill or note payable to A. or bearer, is, in legal effect, payable to bearer and transferable by mere delivery, and the bona fide holder may maintain an action thereon against the drawer. Grant v. Vaughan, 3 Burr. 1516 ,• Chitty, Jr. on Bills, 7 & 8; Bullard v. Bell, 1 Mason, 243.
    An indorser to a note made payable to bearer, is liable as upon a new bill to the bearer, and such indorsement is in effect a new one. Williams v. Field, 3 Salk. 68 ; Fcoles v. Ballard, 2 McCord, 388, and Rush v. Admirs of Reeves, 3 Johns. R. 439.
    Every indorsement is a new contract, and invests the holder with the right of action against all preceding parties. Slocum v. Pomeroy, 6 Cranch, 221; Abat v. Rion, 9 Martin, 465; Lenox v. Prout, 3 Wheaton, 520; Van Staphorst v. Pearse, 4 Mass. Rep. 258; Bank of North America v. Barriere, 1 Yates, 360, and Allard v. Gantsheau, 4 Martin, 662. The cases oí Johnson v. Martinus, 4 Halstead Rep. 144, and Fends v. Saxton, 1 Southard, 1, go clearly to show, that an action can he maintained by the indorsee of a note payable to A, or bearer, against an indorser, who had indorsed the same after it had been transferred to him by mere delivery, and clearly overrule the case of Frampton v. Dudley, in 1 Nott & McCord, 128, which was decided in conformity to the case of Hpdges v. Steiuard, long since overruled in Grant v. Vaughan, 3 Burr. 1516; Greenleaf’s Overruled Cases, 179. The case oí Hodges v. Steward, made a distinction, which it is believed, does not now exist, between a bill payable to bearer, and one payable to A. or bearer. The former was decided to be negotiable by delivery, so as to charge the drawer, and the latter only by the indorsement of A.
    The position I have taken seems to be clearly sustainable, both upon principle and authority. The recent decisions in New York are decisive upon this question. Dean v. Haü, 17 Wendell, 214; Seabury v. Hungerford, 2 Hill’s N. Y. Rep. 80. The record shows thirteen jurors who passed upon the case. The objection to the plaintiffs’ right to maintain their action should have been taken by demurrer, &c.
    
      V. E. and B. D. Howard, for defendant in error.
    1 The bill of exceptions which was taken on the trial below, does not contain the indorsement of the note, although it was a question of transfer. The presumption, therefore, must be in favor of the judgment. The instruction refused, as well as that given, renders it necessary that the indorsement should be in the papers, so that the court may judge whether it was in truth an indorsement or guaranty. The bill of exceptions does not show any indorsement in writing.
    
      2. The defendant was declared against as an indorser of a note, payable to bearer. Whether the writing of the defendant’s name on the paper was an indorsement or guaranty, was a question of fact for the jury, and therefore the instruction of the court was right. The character of the contract depends upon the intention of the parties, as has been held by this court. 6 How. 60.
    3. In South Carolina’it was decided, that where “D. indorsed in blank a note made payable to F., or bearer, D. was not liable as indorser within the statute, 3 and 4 Anne, and the custom of merchants.’’ Frampton v. Dudley, 1 Nott & McCord. 128.
    We do not deny that the plaintiff might have written a guaranty, or bill of exchange, over the blank indorsement, so as to make it conform to the agreement of the parties. 17 Wend. 214. But in this case, so far from being an indorsement filled, ihe bill of exceptions does not show that there was any written indorsement or signature by the defendant. .It was competent for the defendant, who was declared against as indorser, to show on the trial that he signed the note, either as maker or guarantor; hence the instruction of the court was correct, and the intention of the parties was a question of fact for the jury. A blank indorsement on a note, payable to bearer, could only give the holder a right to fill it up according to the agreement of the parties, and sue upon the same. Parol proof was therefore competent to show what the parties intended by the blank in-dorsement, whether the party intended to be held as first or second indorser, as guarantor, or maker. Dean v. Hall, 17 Wend.; 11 Mass. 436. Here the party was declared against as indorser: evidence that the defendant signed as guarantor, or maker, would not support the action ; and, as the indorsement was not filled up, and not set out in the bill of exceptions, so that the court can judge of its legal effect, the verdict of the jury ought not to be disturbed. The instruction refused was as to the weight of evidence, and that given was strictly correct, inasmuch as it left to the jury to say, whether the signature of the defendant was, in fact, intended as an indorsement.
    In this state, notes are transferable only by indorsement. Payne v. Baldwin, 3 S. & M. 661.
    
      The note was not transferred to Ailles by indorsement, and he could therefore convey no title to Peyton and Tillman. The indorsement of Ailles could then be considered, at most, as a guaranty, and he was not liable in this action, where he was sued as indorser.
    The record does not show thirteen jurors, but the name of one of them is written twice, which is a mere clerical mistake.
    
      E. G. Peyton, in reply.
    The defendant below, by his plea of non assumpsit, admits his indorsement upon the note. The declaration charges him as indorser, and this is not denied in any part of the record. The opinion of the court below was founded on the impression that, to enable the plaintiffs to recover, they must show that Kennedyj the payee of the note, had indorsed the same to the defendant, and that the defendant could not be sued as indorser without the payee’s indorsement to him. This is the main question presented by the record to be decided by this court. There was no necessity to set out the indorsement in hcec verba in the bill of exceptions, as it is stated in the declaration and admitted by the plea. What is admitted upon the record, need not be proved.
    The counsel for plaintiff in error also insist that there were, in fact, but twelve jurors, who passed upon the case below, and rendered their verdict, although the record shows thirteen, and ask this court to presume that there were but twelve. This court cannot presume that the name of the same juror was inserted twice by mistake of the clerk, and that there could not have been two persons of the same name on the jury. The court will not presume against the record.
   Mr. Justice Thacher

delivered the opinion of the court.

Writ of error to Copiah county circuit court.

This was an action against the defendant as the indorser of a promissory note, made payable “ to Lewis Kennedy or bearer,” from whom defendant received the note by delivery, and without his indorsement. The court below charged the jury, that the indorsement of Kennedy upon the note was essential to authorize the plaintiffs to recover in the action.

A note payable to bearer passes by mere delivery, and the holder claims his title to the note by virtue of being its bearer, and of the promise and contract between the maker and bearer. The circumstance of making the note payable to any person or bearer, does not compel the holder to show an indorsement by that person, since it is payable in the alternative, and not to that person absolutely. In such case it is transferable by mere delivery. Chit. on Bills, 251; Bullard v. Bell, 1 Mason, 243.

The note, in this instance, was negotiable and transferable without indorsement; nevertheless, if the defendant indorsed it, he made himself liable on his. indorsement, Bank of England v. Newman, 1 Ld. Raym. 442. In this case, also, the defendant, by his pleadings, admits the character in which he is sued.

The objection, that the jury consisted of thirteen individuals, is not ground of error. A verdict by a less number than twelve, in issues of this kind, would be void, but a verdict of a- greater number than twelve is not so on that account.

Judgment of the court below is reversed, and new trial awarded.  