Bryan

Mr. Chief Justice Murray concurred.

This case presents one of the loosest transactions ever reported, upon which a case was brought into Court. There is really shown by the evidence no authority whatever by the defendant to any one to sign his name, unless that authority can be inferred from his silence when told that it had been signed. But as this has been passed upon as a fact, it is not necessary to review it, even although there is no conflicting evidence. It appears sufficiently clear that if any authority was given, it was confined to signing it as a surety, or in the common and ignorant use of the language on the occasion, as “ security.”

This implies a secondary liability, and it should so have appeared in some manner on the note, so as to entitle the surety to notice of demand upon the principals and non-payment by them. It is not material on what part of a note a secondary promissor places his name; if the character of his liability is made to appear, his rights are the same as those of an endorser. This is in strict conformity with the decisions we have heretofore made, and to which we were led by the conviction that the rules of law fixed a "uniform liability as to…

and Mr. Chief Justice Murray and Mr. Justice Terry concurred.

The petition for a re-argument of this cause has induced us to review each step of the ground we have heretofore taken in regard to the class of cases to which this belongs. The petitioner cites and relies upon the case of Humphreys v. Yale et al., decided by this Court at the April term, 1855. Some of the expressions used, in the opinion in that case, have been misunderstood by the counsel in this, from the want, doubtless, of a particular reference to the facts of that case. It came up here upon error assigned in sustaining a demurrer to the answer, which set out simply that the word surety had been obliterated or torn away from one of the names of the makers of the note: but the answer failed to show in what respect this alteration was of any importance. To make such an averment effectual as a defence, it was necessary also, to allege a want of demand upon the principal, and notice thereof to the endorser, or some other fact, which in connection with the averment made, would have operated to the discharge of the surety from liability •, so that in fact, the question of demand and notice did not arise in tíre case,…