#### C. L. SUMMERS, Adm’r., &c., *v.*L. C. McKAY and GEO. F. SHEPHERD.

Where a note was given' in 1862 in consideration of the loan of Confederate money, and in 1863 the payee endorsed it to the plaintiff in payment for a tract of land : *Held,*in a suit against the payee and the-maker, that the *scale*to be applied was the value of Confederate money in 1862, and not that of the land afterwards purchased by the payee.

Civil action, tried before *Mitchell, J.,*at Spring Term-, 1870, of Iredell Court.

The plaintiff declared upon a note for $1,000, dated May 26, 1862, given for Confederate Treasury notes, by the defendant McKay to tbe defendant Shepherd, and endorsed by the latter, October 13, 1863, to the plaintiff. Upon the trial the defendants offered to prove that the endorsement, was made in consideration of a tract of land bought by-Shepherd of the plaintiff at an administration sale, and that the value of such land was $80. To this the plaintiff objected, but the evidence was admitted by the Court.

Verdict and Judgment accordingly; and the plaintiff appealed.

*W.*P. *Caldwell,*for the appellant.

*Burches, contra.*

Since the passage of the *scale*laws, a plaintiff in cases like-the present is put upon his general assumpsit, or equity; and can recover only the value of what was sold, that being the real consideration: See *Latos*v. *Bycroft, ante*100.

Settle, J.

McKay, the maker of the bond, certainly has no right to complain, if he is required to stand by his. obligation, as interpreted by the ordinance of October 18th 1865, and the acts of 1866, chapters 38 and 39. He put *556his negotiable paper upon the market, and it is a novel idea that hé can afterward discharge it by paying the price which a third party may have paid for it. Tet this is the argument, and it is contended that as the payee Shepherd, assigned this bond to the plaintiff in consideration of,, and inpayment for, a tract of land, the obligation of the maker is thereby changed from what it was ■ when made- in May 1862* and whát it continued tobe up to the assighment in October 1863; and that he is only liable for the value of the land.

Instead of reducing, or in any way changing the original liability of the maker, the payee, by his endorsement, identified himself with the prior contract, and became a surety for the same. The’effect .of his endorsement was .not to drag the maker down to his level, but to raise'himself up to that of the maker. ’

. It was said upon the argument, that ’ it would be á hard case, to hold 'the endorser liable for more than, the value of the laúd; if that be conceded, still it is not so hard a casé as thousands of others, where sureties have to pay the debts of their principals, and never rec’eivé a cent for their own benefit.

It is evident that the endorser took the risk of assigning this bond for the land, upon the idea that the maker was good, and stood, between him and all danger. ,In this calculation he, like many others who have become, sureties, • was mistaken.

All that the plaintiff asked, was the scale of the bondr and interest from the time it fell due.

To this he was,clearly entitled, and there was error, in.the instruction of his Honor to the contrary.

Per Curiam. *Venwe: de novo.*