William S. Flint v. Ira Day, 9 Vt. 345

The opinion of the court was delivered by Williams, Ch. J. If Day, the defendant, is to be considered as a co-surety with the plaintiff for Paige, then the judgment of the court below is to be affirmed. On the contrary, if he is to be considered as only guarantying to the bank the note signed by Paige, Flint and another, there is no foundation for this action. By the decisions of this-State, it has been considered, that if a person, not a party to a note, signs his name on the back, he is treated, prima facie, as a joint promisor, unless there is evidence to control this prima facie inference.

In the case of Barrows v. Lane & Benham, 5 Vt. Rep. 161, the court intimated that this was probably the better doctrine. In the case of Knapp v. Parker, 6 Vt. 642, the declaration was on a note, signed by the defendant on the back, and after it became due. The decision of that case governs the question now before us, and must be considered as a decision adopting the doctrine upon the subject, which has been .adopted in the State of Massachusetts, rather than the cne which prevails in New York.

In this view, the case presented is the common one, of a person executing a note for the purpose of obtaining a discount at a bank, and obtaining signatures from time to time. In such a case, each subsequent signer may have had regard to the previous signatures, but all the signers are ¡to be treated as sureties between themselves. From the case itself, it is sufficiently apparent that Paige was the principal, and that he was so known and recognized by the defendant. It is, however, not very material whether he so considered it or not.

From the manner in which he signed the note, he became a joint principal to the bank, and must stand in the relation of a co-surety with the plaintiff, who did not request him either to be a guarantor or co-surety. Having this view of the nature of the undertaking of the defendant, the case comes within the principle decided in the case of Lapham v. Barns & Hitt, 2 Vt. Rep. 213, which was > much examined and considered by the court.

Indeed, this case _cannot be distinguished from that, except from the declaration made by the defendant, at the time the note was discounted, and this cannot vary it, as it was not a declaration made either to Paige or to the present plaintiff, and cannot control the obligation which he assumed. If the defendant had executed a collateral guaranty to the bank, instead of obligating himself in the manner he did, he case would have come within the principle decided in Craythorne v. Swinburne, 14 Vesey, 159. Such, hewever, was not his undertaking. The case of M’Donald v.

Magruder, 3 Peters, 470, is not similar to the present. Indorsers are not co-sureties, but their undertaking is separate and successive. The result is that the judgment of the county court be affirmed.