majority">Gookins, J.

Assumpsit by Pierce against Harris, on a promissory note made by one Winebrener,- payable to Pierce, and indorsed by Harris. The declaration contains six counts. The first charges Harris as maker of the note; the second, third and fourth allege that Harris indorsed his name on the back of the note, and thereby guaranteed its payment, and that Winebrener, at the maturity of the note, was and still remained wholly insolvent. The fifth is like the second, third and fourth, with the additional averment of a special demand of payment upon Winebrener, four days after the note became due, and notice to Harris of its non-payment. Sixth, a common count for goods sold and delivered. Plea, non assumpsit. There was a trial by jury, and a verdict for the plaintiff. Motion for a new trial overruled, and judgment. The record does not contain the evidence.

*163The questions presented by this record arise upon instructions to the jury, the thud of which was to the following effect: “If the evidence shows that Hams, by indorsing his name on the note, intended to become the surety of Winebrener to Pierce, he is liable in the same manner as if he had signed his name under Winebrener's, on the f^ce of the note.”

There is no error in this instruction. The effect of a blank indorsement of a note by a third party, was considered by this Court, in the cases of Wells v. Jackson, 6 Blackf. 40, and Early v. Foster, 7 id. 35. After citing various authorities, the conclusion arrived at in Wells v. Jackson, was, that such indorsement of paper, not negotiable by the law-merchant, was, unexplained, the undertaking of a surety, and that the indorser was liable jointly with the principal. In Early v. Foster, the plaintiff declared upon a negotiable note so indorsed, against the maker and indorser as joint makers. A general demurrer to the count was sustained, upon the ground that the unexplained indorsement of mercantile paper, by a third person, must be presumed to be the undertaking of an indorser, with all the rights and incidents of such an undertaldng. But in both the cases referred to, it was held that the prima facie liability was open to explanation, and that the undertaking might be shown to be in either character.

According to these authorities, it was competent for the plaintiff to show by proof, that Harris intended to make himself liable as a surety of Winebrener, in the first instance, or that he intended only to guarantee the ultimate payment. We are to presume that there was evidence to which this instruction applied, and it stated the law correctly.

The fourth instruction was to the effect, that if Harris, by his indorsement, intended only to guarantee the payment of the note, on the failure of Winebrener to pay it, Harris would not be liable, unless the plaintiff had demanded payment within a reasonable time after the note became due, or unless Winebrener was notoriously insolvent. The first part of this instruction was in favor of *164Harris, and he can not complain of it. The only question he can raise upon it, is, whether the insolvency of the maker rendered a notice of the non-payment to the guarantor unnecessary. Upon this point, we think the authorities settle the question in favor of the ruling of the Circuit Court. Lewis v. Brewster, 2 McLean 21.— 3 Kent’s Comm., 123.—Reynolds v. Douglass, 12 Pet. 497.

O. P. Morton and N. H. Johnson, for the plaintiff.J. S. Newman and J. P. Siddall, for the defendant.

The fifth instruction was as follows: “ If the jury find from the evidence that Harris indorsed the note, intending thereby to sign it as a surety, they should find for the plaintiff.” The reasons we have given in support of the third instruction apply equally to this.

The sixth instruction was substantially this: “ If Harris indorsed the note as a guarantor, and a demand was made of Winebrener, and notice of the non-payment given to Harris, within a reasonable time after the note became due, or if the maker was then notoriously insolvent, the verdict should be for the plaintiff.” This does not differ materially from the fourth instruction. These several instructions informed the jury of the difference in law between the contract of suretyship and that of guaranty. The third and fifth suppose Harris to have become liable upon the note as a surety jointly with the principal; the fourth and sixth as a guarantor. If his undertaking was that of a surety, as first supposed, he was liable on the default of his principal, without notice; if that of a guarantor, he was entitled to notice of the default of the principal, unless he was insolvent; but if so, the want of notice could do him no harm, and he was liable without it. There was no error in these instructions.

Per Curiam.

The judgment is affirmed, with 5 per cent, damages and costs.

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