Fort v. Meacher 1 Ril. 248, 22 S.C.L. 248

John E. Fort ads. Thomas Meacher.

Tried before his Honor Judge Evans, Charleston, January Term, 1837.

Judge’s Report. — This was an action on a promissory note. The note was payable to John Fort, and Joseph Maybank, and indorsed to the plaintiff, Meacher. The defendant was the maker. There was no doubt as to the signature of the defendant, as maker, or of Maybank, one of the indorsers. The defence relied on,- was, that the signature of John Fort, one of the indorsers, was a forgery ; and as the note was made payable to John Fort, and May. bank, the plaintiff could not recover, unless both indorsed it. There is no doubt of the correctness of this position, as a general rule. It was clearly proved, that the signature was not John Fort’s. But the plaintiff contended that the defendant, himself, had either forged the signature of John Fort, or had procured it to be done, and had put the note in circulation, and was thereby precluded from objecting to the forgery of the signature of the indorser, Fort, who was the defendant’s father. The plaintiff, Meacher, was a bona fide holder ; having received the note from one Bruerton, on ac. count of a debt due to him by Bruerton.

When the note became due, Meacher sent an agent (Stillman,)-to demand payment of the drawer, at his residence on Black River, fifteen miles above Georgetown. Stillman told him if it was not paid it would be protested, and the indorsers called upon for payment. The defendant replied, it was impossible for him to pay it before January, (the note was due 1st December,) and spoke of selling some property to pay the debt. The demand of payment-was made for Meacher.

A bond signed by John E. Fort, and John Fort, was offered in evidence, to enable the jury to decide whose writing the signature ©f John Fort was.

*249On the part of the defendant, John Fort was examined. He' denied that the signature was his, or that he had ever authorized any person to sign his name on the note. In fact, he had never heard of the existence of any such paper, until it was presented to him by Meacher, 1st February, 1833, (which was some months after its date. It was due 1st December, 1833.) As soon as he knew of the note, he advertised it as a forgery. Defendant is his son, and lived, at the date of the note, at the 32-Mile House. A Mrs. Durant had rented the house from Bruerton, and kept a tavern. Defendant married her daughter, and heard him say he would buy the place if he could. He tried to do so, but could not make the payment. Bruerton had very little property, and the defendant never had any property from him of the value of this notej (900 dollars.)

In my charge to the jury, I told them, that from the evidence, I thought Meacher should be regarded as the bona fide holder of this note ; he having received it from Bruerton in the course of a regular business transaction ; but to enable bina to recover against the maker, it was necessary to prove that the payees of the note had parted from their interest, by indorsement. This was the general rule, but there were exceptions.

Among the exceptions, which were applicable in this Oase, weré' these:

1. If the maker of a note make it payable to a fictitious person,' which fictitious name he writes on the note, and then puts it in circulation.

2. Or if he make it payable to a real person, and forge his in-dorsement; or if he procure it to be done, and then put it in circulation.

In these cases the drawer could not insist on proof of the in. dorsements, because he was estopped to say that was not genuine^ which he had represented to be so, by putting it in circulation.

It was submitted to the jury, to decide, whether the evidence in-this case, brought it within these exceptions to the general rule. They found for the plaintiff. The notice of appeal is annexed.

On the trial, the plaintiff contended he could recover on the promise made by defendant,- to pay at January, when Stillman demanded payment. I did not think so ; but I find it alledged in the notice, as a ground, that I did not instruct the jury, that the plaintiff could not recover on this promise, unless it had been declared on.

I certainly so decided in the hearing of the jury ; and I charged, them to find for defendant, unless they believed the case came within the exceptions herein before stated.

JOSIAH J. EVANS, Presiding Judge,

Grounds of Appeal.

The defendant moves for nonsuit, or a new trial, on the grounds' following :

1st. Because the plaintiff’s case was without evidence, in this, that the declaration was upon a note, and no proof of the indorse-*250ament alleged on the declaration, which was necessary to convey a right to the plaintiff.

2d. Because the court did not instruct the jury, that the plaintiff must recover on the note only, and could not recover upon the promise made to the plaintiff, as the same was not declared on; and if it had been, was founded on no consideration,

3d. Because the verdict was against the positive evidence, as to the indorsement, and the judge erred in charging the jury, that al. though the indorsement was not genuine, they were at liberty to presume it was made by the assent of the real payee of the note, and that if so made, the interest in the note was thereby passed to the plaintiff.

4. Because the judge erred in charging the jury, that if the name of the payee of the note was written by the maker, the plaintiff was entitled to recover under a declaration, setting forth a real índorsément by the payee himself; whereas, it is submitted, that if such was the state of facts, the action should have been founded on. the deceit.

HUNT, Appellant's Attorney,

Thompson, for motion.

Petigiuj, contra.

Filed 14th February, 1837.