
    S. C. POMEROY vs. R. H. CLARK ET AL.
    At Law.
    No. 8243.
    I. Where the defendant is the payee and first indorser on a series of promissory notes, and the plaintiff's name is used as second indorser, and both became parties to the paper for the accommodati on of the maker, if, upon notice of non-payment, the plaintiff takes up said notes, he may maintain an action against the said first indorser for the amount advanced on account of such payment.
    II. Where the notes in suit were given in renewal of other notes on which* the plaintiff was first indorser and the defendant was second indorser, that circumstance will not change the liabilities of the parties on the notes taken up by the plaintiff, unless there was an agreement between themselves relating to such liability.
    STATEMENT OE THE CASE.
    The declaration in this case contained eight counts, each upon a promissory note for $500, except the third, which was-for the sum of $2,000. The defendant Elvans made these notes, payable to the order of his codefendant, Clark, at the bank of Lewis Johnson & Co., which discounted them for said Elvans, after being indorsed by Clark and then by the plaintiff. The notes were dishonored and protested, and the plaintiff paid the same, and now brings suit againt Elvans, who made the notes, and Clark, who was the first indorser. There was judgment by default against the maker, and the suit is now defended by Clark alone.
    On the trial, it appeared that the series of notes now in suit were given in renewal of other notes, on which the defendant Clark was second indorser and the plaintiff first indorser, but when the notes sued upon were given in renewal, as above stated, of the prior notes, the name of Clark was used as payee- and first indorser, and that of the plaintiff as second indorser. There was no agreement or understanding that this change in the order of the names was to change the liabilities of the parties.
    It appears also that before the first notes were made Elvansapplied to the plaintiff to aid him to secure a loan of money, andi that the plaintiff then owned eight bonds, payable to bearer, for one thousand dollars each, of the Pike’s Peak and Union Pacific Railroad and Telegraph Company, which he placed in the hands of said Elvans to aid him in raising the money. These bonds were subsequently delivered by Elvans to the defendant Clark, to indemnify him for indorsing his name on the prior notes, and said Clark deposited the bonds with the banking-house of Lewis Johnson & Co., as collateral security, when they discounted the paper. The bonds were left in the bank after the renewal, as security for the notes now sued on, and when the plaintiff paid the last notes the bonds were also given up to him, and he afterward converted them to his own use.
    The plaintiff, in rebuttal, swore in substance that he delivered the bonds to Elvans to raise money, without power to sell, and afterward indorsed said note for him; did not know Clark; did not authorize him to pledge the bonds to the bank; did not authorize Elvans to pledge the bonds to Clark; had no understanding with Clark aboutindorsing; was not acquainted withhim. The lastnotes Elvans brought to him were indorsed by Clark; knew the bonds had been in the bank, but had been told by Elvans that Clark had them for safe-keeping; knewthe bonds were in the bank when last notes were given; also when second notes were given; couldperhaps have sold them for fifty cents when took them from bank, but they greatly declined before he disposed of them.
    At the close of the testimony the defendant asked the court to instruct the jury that if they found that the plaintiff and the defendant were accommodation indorsers, placing their names on the back of the notes before their utterance to the holder and indorsee, that then they were merely sureties without reference to the order of their names on the back of the notes, and that having paid said notes the plaintiff could only have contribution in this action as against Clark.
    The defendant further asked the court to instruct the jury that if they found that the defendant Clark became the indorser on said notes by means and inducements flowing from Pomeroy, then he cannot recover in this suit of Clark.
    The defendant also asked the court to instruct the jury that if there was no agreement between Clark and Pomeroy in relation to the indorsement of either of said notes, and that there was no other consideration for the indorsement of the last notes but to take up the first, in that case Clark is not liable to Pomeroy for any snm whatever. But the court refused to give said instructions, and the defendant excepted.
    The court did, on the other hand, instruct the jury that under the law, and in the absence of any arrangement to the contrary, Mr. Clark is liable to account to Mr. Pomeroy, as the second indorser upon these notes, in the amount that he advanced on account of the payment of them. That the previous relation of these two indorsers to the previous notes, and out of which these notes grew, did not constitute proof, in the absence of any arrangement between themselves, to change the relative position of these two indorsers, under the law, on the notes taken up by the plaintiff.
    And the reason the court has come to this conclusion is this: That the liability of an accommodation indorser is not on account of interest, but rests upon his express undertaking alone, and terminates with his undertaking.
    And, therefore, the court holds that the history of the antecedent paper is not capable of changing the relation of the parties to the present notes ; to which several rulings by the court the defendant excepted.
    The jury returned a verdict in favor of the plaintiff, less the amount of the market-value of the bonds at the time they were converted by the said plaintiff.
    The case is now here upon the exceptions.
    
      Bartley & Casey and R. Boss Perry for plaintiff.
    
      L. G. Hine and A. G. Biddle for defendant Clark.
   Mr. Justice Olin

delivered the opinion of the court:

After looking carefully into the record in this case I do not perceive that the chief-justice, who tried it at the circuit, committed any error in his ruling of the law, and I think the judgment below should be affirmed.  