#### John Fort and Joseph Maybank *ads.*Thomas Meacher.

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

This was an action on a promissory note for $900, due 1st December, 1833. The uote was drawn by one John E. Fort. It was payable to the defendants, and purported to have been indorsed by them; The plaintiff was a *Iona fide*holder, and had made a regular demand of payment, and notified the indorsers of non-payment, when demanded. There was no question that the signature of the maker, and of Maybank, one of the indorsers, were genuine; and’ I thought that the proof was very clear, that the name of John-*251Fort, the other indorser, was not his own handwriting. The liability being joint, the jury were instructed that the plaintiff could not recover, unless the indorsement of Fort’s name was either done by himself, or by another, with his assent and concurrence. A motion was made for a nonsuit, but it was overruled, as there was evidence on which the jury might found a verdict for the plaintiff. The evidence on this point was as follows:

Mr. Stillman, when he gave Maybank notice of non-payment by the drawer, Maybank said he did it as an act of kindness to John E. Fort, and was astonished it had gone so far. He said he objected to signing his name until old Fort’s name was on the note first Afterwards John E. Fort brought it to him with his father’s name on it, and he then put his. He spoke of some person being with John E. Fort, and thinks the name of Bruerton or Small, was mentioned.

William Small: Lived with old Fort in 1832. John E. Fort also lived with him. Does not know old Fort’s writing. John E. Fort was in the habit of writing for his father. Whenever any writing was to be done, John E. Fort did it. He attended to his father’s business. Defendant Fort accused him (witness) of signing his name, two or three weeks after Meacher got the note. He took two notes to Maybank, who indorsed one for §400, but refused to sign the other till old Fort’s name was on it. Gave the note back to Bruerton. John E. Fort and Bruerton went towards old Fort’s. Never saw the note afterwards. There was a negociatioti between Bruerton and J. E. Fort, about the purchase of furniture.. Fort carried off the furniture to Georgetown. Has seen a copy of a receipt for furniture from, Bruerton to Mrs. Durant. Bruer-ion had contracted to sell her the furniture, but .she could not pay, and returned it. Afterwards J. E. Fort bought it, and carried it to Georgetown. The price was $1400 for the furniture, cattle, com mill, and wagon. He proved a receipt from Mrs. Durant to Bruer-ton, for the furniture, 4th September, 1832.

A publication in the Georgetown paper, in relation to this wit. ness, was shewn to him on his cross-examination, and he produced his reply to it.

John A. Bruerton: The note was given to him for furniture, and other things belonging to the 32-Mile House. It was drawn by Small. Maybank signed the note for $400, and refused to sign the $900 note. He went with John E. Fort to his father’s, to get the note signed. They stayed two days. John E. Fort, his father, and one Willis West, went into a room. They stayed some time, (two hours.) John E. Fort came out with the note signed. They then went to Maybank’s, who signed his name, and the note was then delivered to him, (Bruerton.) He passed it to Meacher for a just debt. Believes the signature is John E. Fort’s ; has no other reason than comparison of hands ; but at the time he received it he supposed John Fort had signed it; but before he passed it to Meacher, he supposed the indorsement was made by John E. Fort, for his father, by his direction. He sold the furniture first to Mrs-Durant, and then took it back and sold it to John E. Fort, who *252had the full enjoyment and benefit of it. He carried it to Georgetown, where some of the furniture was carried, some to Mrs. Du. rant’s, and part carried by John E. Fort to Black River, when he moved there. Heard old Fort tell his son, that if Maybank would sign the note, he would. Old Fort knew all about the trade, and that John E. Fort was to give a note, with his father as in-dorser. Did not see any person sign the note at old Fort’s, nor did John E. Fort ask his father to sign in his presence. Did not have the note, or look at it, till after Maybank signed it. West was living with old Fort. Thinks he has seen J. E. Fort write a letter for his father at the 8’2-Mile House, in 1832. Never knew him to sign a note for his father. Pretty well understood that John E. Fort did his father’s writing. An agreement, signed by Meacher and old Fort, was shewn to the witness, and he did not know the signature. Indeed, it was very manifest that he was a very incompetent judge of hand writing, being able to do very little more than sign bis own name.

*For the Defendant.*— Colonel Steedman : The indorsement of John Fort’s name is not his hand writing. It does not resemble it. The other paper shewn to him is in Fort’s hand. Thinks him scholar enough to do his own business. Never knew of his getting any one to sign his name.

John E. Fort: Did not sign the name of John Fort, nor was he ever authorized to do so. He delivered the note to Bruerton, with his own name signed to it. Bruerton was to get Maybank to sign it. Never saw it after he delivered it to Bruerton. They did not go to his-father’s to get him to sign it. They went to take a drive. Never signed his father’s name to any papers, or had authority to do it. He went with Bruerton to Maybank’s. Bruerton had the note. After Maybank signed it, he said, John, I have signed a $900 dollar note for you. He replied, I am sorry for it, but am obliged to you. He was to pay Bruerton with his own note. Bruerton was to procure the indorsers. Told Bruerton before he would have-any trouble, he would give up the furniture. He never requested either his father or Maybank to sign the note. Bruerton told him they would sign. He received no value for the note. He bought the furniture in November, 1832. He and Mrs. Durant lived at the 32-Mile House. The furniture was moved to Georgetown, for Mrs. Durant. She claimed it, and produced a receipt, and he gave it up. Some of the furniture carried to Mrs. Durant’s, and some*’ to the house on the Bay, where he lived, but he considered it all Iier’s. What he had he held as her’s. He had married her daughter in October, 1832. It was in February that she claimed the-furniture. Mrs. Norman, the daughter of Mrs. Durant, told him of Mrs. Durant’s receipt to Bruerton, but Mrs. Durant denied it. He took no steps to ascertain if she had conveyed the furniture back to Bruerton. He sold the corn mill to Maybank, who paid Bruerton #100 for it. There were some cattle — Bruerton sent two to Charleston. He sold the rest. Sold the tools to Maybánk, who said he paid Small. Sold the wagon to Cumbo. Bruerton lived with Mrs. Durant after the note was due, and continued to do *253so until a year ago. Bruerton never informed him of Mrs. Durant5® receipt.

In the above, I have given all the evidence: Much of it is immaterial, but as the grounds of appeal allege the insufficiency of the evidence, f thought il best to report all that my notes contain. The jury found for the plaintiff. The grounds of appeal are an-

JOSIAH J. EVANS..

*Grounds of Appeal.*

*For a*Nonsuit_That the plaintiff produced no. legal evidence, that the defendants had indorsed the note on which the action was founded.

*For a new Trial.*— l. That *the*verdict was without evidence, and against the most positive testimony in this: — That no person - gave evidence, that the name of defendant, John Fort, as indorser, was written by him with his privity or assent.

2. That the verdict was arbitrary, and in direct opposition to all the testimony, and was based wholly upon suspicions, having rio legal and sufficient evidence to support them.

3. That the indorsement declared on was joint, and the name of the second indorser was obtained through misrepresentation, and no verdict could be given on the declaration filed, as the indorsement was not proved as laid.

HUNT, *Attorney for Fort.*

SIMONS, *Attorney for Maybarik.*

Hunt & Thompson, and Simons, for motion.

¿¡Petigku & Lesesne, contra.

Filed 14th February, 1837.

Mr. Justice Evans

delivered the opinion of the court.,.

This court is not disposed to interfere with the verdict of a jury, Unless it be manifestly without evidence. There is no question of law involved in this case,; and the weight of the evidence is rather in favor of the verdict. The motion is dismissed.

JOSIAH J. EVANS.

We concur,

J. S. RICHARDSON,

A. P. BUTLER.

J. B. O’NEALL,