
    W. McCelvey vs. W.P. Noble, et al., ex’ors A. Houston.
    
      Promissory note — Indorser.
    Where one indorses a note drawn by a third person and payable to plaintiff or bearer, he may be charged as drawer, indorser, or guarantor, even though the indorsement be made after the note fell due, according to the circumstances, as shown by the evidence ; and he will be held liable in the capacity in which he intended to make himself liable.
    BEFORE WHITNER, J., AT ABBEVILLE, SPRING TERM, 1859.
    The report of his Honor, the presiding Judge, is as follows:
    
      “ This was an action of assumpsit founded on a promissory note of which a copy was furnished on Circuit as follows:
    “$104 70. — One day after date I promise to pay W. McCelvey, or bearer, the sum of one hundred and four dollars . and seventy cents for value received. March 3, 1854.
    (Signed) C. B. HOUSTON.”
    “ I indorse the within note to W. McCelvey, 10th Oct. 1854.
    (Signed) A. HOUSTON.”
    “ Received from W. H. Parker, Commissioner, from funds of C. B. Houston, seventeen dollars and thirty-eight cents pro rata on within note.
    (Signed) R. A. PAIR.”
    “ It was admitted that the signatures were genuine.
    “ That suit was brought first against A. Houston, 16th Oct. 1854.
    “ Suit brought against O. B. Houston, 7th Peb. 1855.
    “ Judgment and fi. fa., 8th Oct. 1855.
    
      “ Alexander Houston died about tbe 15th Oct. 1855.
    
      “ Leave given of further time to declare, Oct. Term, 1855.
    
      “ B. E. Gibbert proved 0. B. Houston and Alexander Houston were related,, son and father, and lived near each other; that the former was a single man; that Alexander Houston sold some of his effects, household furniture, stock, &c., 2d Nov. 1854, preparatory, as witness understood it, to a removal to the West; some of his children having previously removed to Mississippi. The sale was advertised and seemed to be of such articles as were inconvenient to remove. On his cross-examination, witness said Alexander Houston was very old, perhaps eighty years; at the time of sale he owned two places in the district, shortly before having sold another place; that at the time spoken of before, he lived in a new house and had some of his children with him; some of his children had likewise removed to Georgia. The record of Pet. Equity, Exrs. Houston vs. Lewis G. Parks and wife, et. ah, filed to June Term, 1858, was offered. I was not furnished with any abstract of this proceeding, though I was informed in general terms the object was to procure funds to be set apart to meet liabilities of testator on account of his son, amongst which reference was made to this demand. It will be proper that a more formal statement appear in the brief of appellant.
    “ W. H. Parker proved that 0. B. Houston was regarded insolvent and absent from the State; on his cross-examination witness could not say he was now here.
    “ The plaintiff having closed his case, a non-suit was moved for and granted.
    “ The declaration, it Avas said, contained four counts charging defendant as indorser before and after due, .as maker and guarantor. Eor purpose of reference, if need be, a copy of the declaration had better be present at the hearing in the Court of Appeals though I presume there is no necessity for making it a part of the brief.
    
      “ The plaintiff appeals on grounds annexed. I do not regard the vi.ews I attempted to submit in vindication of my judgment, correctly presented in the grounds, of appeal. I need not encumber this report with a correction however. The case as made by the pleading and proof, will, of course, be under review, and the order, if erroneous, will be set aside, whether the true points of the case were perceived or not by the presiding Judge.”
    The plaintiff appealed, and now moved this Court to set aside the nonsuit upon the grounds:
    1. Because his Honor held that where a note payable to bearer was indorsed after due, there must be evidence on the part of the payee, that the indorser was the bearer when the indorsement was made. ¡
    2. Because his Honor held, that the burden of proof of the ownership of the instrument by the indorser when the indorsement was made, rested upon the plaintiff and granted a nonsuit when there was no proof that the indorsee was not the owner.
    8. Because his Honor granted a nonsuit, when the proof of demand upon the malrer and notice to the indorser, was ample and abundant to sustain the action.
    
      4. Because his Honor held lhat the defendant’s testator could not be charged as maker, indorser, or guarantor.
    Thomson, for motion,
    cited Bdw. on Bills, 230; Story on Bills, § § 133, 184; Modes vs. Ballard, 2 McC. 388; 10 Bich. 17; 16 Barb. 342; 13 Wend. 543; Pride vs. Berkeley, 5 Bich. 537; Benton vs. Gibson, 1 Hill, 56 ; Story on Bills, § 467; Gray vs. Bell, 2 Bich. 67; 3 Bich. 71; 1 Bich. 400.
    
      Noble, contra,
    cited, Garrett vs. Butler, 2 Strob. 174; Filer Givens, 3 Hill, 48; Frampton vs. Dudley, 2 N. & McC. 128; 2 Stat. 544; Chit, on Bills, 197; Bac. Abr. Merchant, M; Baker vs. Scott, 5 Bich. 310.
   The opinion of the Court was delivered by

ONealu, J.

1st. How is the indorsement of the note by A. Houston to be regarded ? If it were necessary to sustain this case, it might be regarded as such an indorsement as would charge the deceased as indorser. For, notwithstanding the note is payable to the plaintiff or bearer, yet the presumption in the absence of proof would be, that McOelvey passed the note by delivery to A. Houston, and that he afterwards indorsed, and delivered it to the plaintiff. This presumption arises fronp the fact of the indorsement, and might be properly made to give effect to the defendant’s liability.

2d. But I hold that A. Houston may be charged as maker. For it is not necessary to have that effect, that he should put his name on the note, when made. His after signature is just as good. Devore vs. Mundy, 4 Strob. 15, is an authority to that point. The note there was made by Brannon, on the 10th January, 1844, to the defendant, L. H. Mundy, or- bearer. He transferred it on the 10th January to John W. Mundy, and to induce him to take it, he signed it as maker. John W. Mundy passed it to Albert Mundy, he returned it to John W. who passed it to the plaintiff. In that case, it was held,- as had been previously done in Ives vs. Pickett, Oats & Griffith 2 McC. 271-2, that he who signed a note after other parties made it, became liable, as by a several undertaking. That being so, A. Houston, who indorsed the note 10th October, more than seven months after it was made, and after it was due, is to be regarded, as the maker of a new note on that day. For according, to Stoney vs. Baubien, 2 McM. 313, if he cannot be charged as indorser, he may, to give effect to the intention of the parties, be charged as maker. This will be the case, if it be shown, that he indorsed the note, then past due, in the hands of the payee, to secure the payment. On such proof it will be clear, that the presumption that he had the possession of the note, as bearer, is rebutted, and that he cannot be charged as' indorser. The writing of indorsement cannot have legal effect as such, and of course to give effect to the intention of the parties, he may be charged by his signature, as maker. The case of Stoney vs. Beaubien, in many respects is illustrative of this position.

3d. If necessary, this indorsement might be treated as a guaranty, and if the proof should show, that A. Houston’s intention was really only to make himself liable, in the event of his son’s failure to pay, and that he thus guaranteed the note to secure further indulgence to his son, then considered in that point of view, the evidence of demand and notice is sufficient according to Benton vs. Gibson, 1 Hill, 56, to charge the deceased.

The motion to set aside the nonsuit is granted.

W ardlaw, and Glover, JJ., concurred.

Motion granted.  