
    Hough vs. Gray.
    ALBANY,
    January, 1838.
    Where an absolute guaranty is endorsed upon a note payable to A. B. or bearer at the time of the making thereof, and the note and guaranty are transferred by the payee, the assignee may maintain an action in his own name against the guarantor, without showing a demand of payment of the maker of the note, and notice of non-payment.
    It seems, had the endorsement been in blank, that the grantor might have insisted upon the privileges of an endorser, and required proof of demand and notice.
    Error from the Warren common pleas. Gray sued Hough in a justice’s court and declared on a guaranty entered into by the defendant, endorsed on a promissory note made by Daniel Moon for the sum of $45, dated 7th January, 1834, and payable to John Cameron or bearer, on the 1st February 1835. The guaranty was in these words : “ This “ may certify that I guarantee the payment of the. within “ note—dated 7 January, 1834;” and was signed by the defendant. The justice rendered judgment for the plaintiff, The defendant appealed to the Warren common pleas. On the trial in that courtt he execution of the note and “guaranty was proved, and it was further proved that the consideration of the note was property sold by Cameron to Moon, that Cameron refused to sell unless Hough would become security for the consideration money, and that Hough consented to become surety, and the note and guaranty were signed at the same time and delivered to Cameron. Subsequently Cameron transferred the note and guaranty to one Osborn, and Grey afterwards ^became the holder of the same, and brought suit thereon. On proof of these facts the plaintiff rested, and the defendant moved for a nonsuit on the grounds, 1. that a suit on the guaranty could be maintained only in the name of Cameron, the guaranty not being transferrable as negotiable paper, and 2. that at all events an action could not be maintained without proof of demand of payment from the maker of the note, and notice of non-payment to the defendant. The nonsuit was denied, and _the jury, under the charge of the court, found a verdict for the plaintiff, on which judgment was rendered. The defendant having excepted to the decision and charge of the éourt, sued out a writ of error.
    
      W. Hay, jun. for the plaintiff in error.
    
      E. H. Rosekrans, for the defendant in error.
   By the Court,

Cowen, J.

The note was absolutely payable and therefore negotiable within the statute. Had the endorsement been blank, I should think the defendant below might have insisted on the privilege of an endorser and reposed himself on the want of a demand and notice; but he endorsed an absolute guaranty in so many words. The court below were clearly right, therefore, in holding that'he made himself a joint and several promissor with the admitted maker. I do not go over the authorities, having had occasion, very recently, to examine all that have been cited, with several others, in Dean v. Hall, 17 Wendell, 214, and felt then, as T do still on a re-examination of the same question, perfectly clear in the distinction I have mentioned.

Judgment affirmed.  