Humphreys

Heydenfeldt, J., concurred.

This was an action in the Court below upon a promissory note made by Crane, Yale, and Tompkins. Before suit was commenced, Tompkins died, and the suit was brought against Crane and Yale. Crane suffered a default, and Yale appeared and answered—First, that the defendants, Yale and Tompkins, had signed said note as sureties, and had made a memorandum upon said note to that effect upon the delivery thereof, which memorandum had been torn off for the purpose of charging them as principals or makers. Second, that he was only an accommodation indorser. Third, that said plaintiff had failed and neglected after the maturity of said note to enforce the payment thereof from said Crane, the principal; Fourth, that the administrator of Tompkins should have been joined.

The plaintiff demurred to this answer, and the demurrer was sustained, from which the defendant, Yale, appeals. The demurrer was well taken—First, because the answer does not aver that the alteration was made with the knowledge or consent, or by the authority of the plaintiff ; and Sebond, because the alteration was not material, as far as it affects any of the matters set up in defense. The…