accommodation parties are indorsers. The form of the instrument then does not always, though it does sometimes, give any indication whether one obligation was to precede the other. Several cases may be supposed.

If a note is made payable to A and B, and indorsed by them for the accommodation of the maker, they are clearly not successive indorsers, but joint indorsers. 20 On the other hand, where a note is payable to A, and indorsed by A and then by B, it is apparent from the terms of the instrument that the indorsements must be regarded as successive, and that by the terms of the instrument A is bound to indemnify B. If the note is payable to A and indorsed by A, B, and C, A, according to the form of the instrument, is the primary obligor as compared with B and C, but it is as consistent with the form of the instrument that B and C are joint indorsers as that they are successive indorsers. The cases thus far supposed have been cases of two regular indorsements as distinguished from anomalous indorsements by one never even in form a holder of the instrument. Such indorsements are now, under the Negotiable Instruments Law, treated as imposing the obligation of an indorser. 21 Where two or more, therefore, indorse anomalously for accommodation, they are indorsers, but whether joint or successive is not in any way indicated by the form of the document. Prior to the passage of the Negotiable Instruments Law, some States held that all anomalous indorsers were co-makers; and if they signed for accommodation, were co-sureties, since one comaker so far as the instrument indicates stands on a parity with others. 22

§ 1262. Liability of accommodation indorsers on negotiable instruments is presumably successive.

It will be seen, therefore, that

393; Heintzelman v. L'Amoroux, 3 Nev. 377; Laubach v. Pursell, 35 N. J. 434; Gomez v. Lazarus, 1 Dev. Eq. 205; Dawson v. Pettway, 4 Dev. & B. 396; Williams v. Bosson, 11 Oh. 62; Barnet v. Young, 29 Oh. St. 7,

whether two accommoda

20 Such a case is Bunker v. Osborn, 132 Cal. 480, 64 Pac. 853. 21 Negotiable Instruments Law,

§ 64.

22 See, e. g., Keyser v. Warfield, 100 Md. 72, 59 Atl. 189.

tion indorsers appear from the instrument to be successively liable instead of jointly liable depends upon circumstances. 23 For this reason those who indorse for accommodation pay less attention probably to the order in which their names appear than those who sign for accommodation respectively as maker and indorser. Though the burden of proof may by the Negotiable Instruments Law be thrown on a prior signer who asserts that he is a co-surety of a subsequent signor,24 the burden should be satisfied in the absence of evidence of a contrary intention by showing that the two had agreed to become sureties for the same debt. The fact that one signed as maker, and the other as indorser is doubtless evidence of a contrary intention. 25 It is also evidence of a contrary intention where the second indorser signs a note without previous arrangement, which has already been signed by the first indorser. Under these circumstances the second indorser certainly has the right to assume the liability of surety for the first indorser rather than that of surety with him, and he must be supposed to have intended the smaller obligation. 25 But the situation is

23 The Negotiable Instruments Law undoubtedly states, Section 68, that "indorsers are liable prima facie, in the order in which they indorse." But this has no specific reference to cosureties, and certainly does not mean that where parties intend a joint liability this intention will not be given effect, even though for convenience one may sign before the other; and it is only by extrinsic circumstances not by the form of the instrument that it is possible to tell in many cases whether the indorsement is joint or several.

24 Porter v. Huie, 94 Ark. 333, 126 S. W. 1069, 28 L. R. A. (N. S.) 1039. See also M'Donald v. Magruder, 3 Pet. 470, 7 L. Ed. 744.

25 See cases cited supra, note 19. 250 Wescott v. Stevens, 85 Me. 325, 329, 27 Atl. 146. "If the maker presented the note, already indorsed by the payee, to the plaintiff, with a request to become a party to the note,

he had the choice in what capacity to become bound. He might have elected to sign as maker, but did not. In effect, he handed the maker the cash and took the note. That was the result of his contract; and it is very plain that he intended, by his indorsement, to look to the note, as it was when he indorsed it, for his security, otherwise he would have signed in a different capacity. By signing as he did, he accommodated the maker all the same, gave currency to the note, and looked to the note for his security. He became bound as indorser. That was the contract made. Sometimes the order of indorsements may be shown to be different from what they appear to be. Such proof shows what the writing was when made, therefore what the written contract was.

Coolidge v. Wiggin, 62 Me. 568, is precisely in point. The defendant, as payee, and plaintiff successively in

quite different where the indorsement of both parties was part of an arrangement in which both shared but one indorsed before the other. Yet even in such a case the weight of authority holds the first indorser bound to indemnify the second. 26 It has even been held that the fact that in succes

sive renewals of the note in question, the order of the indorsements was changed, does not indicate that the parties intended equal liability."

Such decisions go to an extreme. There is no doubt that an express agreement may be shown not only that the parties intended equal liability, 28 but also that the second indorser should indemnify the first.29 An agreement implied in fact must be as effective as an express agreement.30 And the

Be

in blank for his accommodation.
fore making the note he applied to the
three separately and each promised to
indorse if the others would. Nothing
was said by or to either of them about
the order of indorsement, or the share
of liability to be assumed. The note
was sent around for them to sign
severally, just as they happened to be
found, without any design as to the
precedence of signatures. It was held
that the jury was justified in finding
that, as between themselves, it was a
joint accommodation indorsement, so
as to render them liable to contribute
equally in the payment of the note,
they having, on account of the in-
solvency of the makers, to pay the

same.

In Paul v. Rider, 58 N. H. 119, the plaintiff and the defendant indorsed certain promissory notes, in order to enable their respective sons, who were co-partners, to raise money. The court said: "The equal interest of the parties in their sons' success, as manifested by their conduct, furnishes evidence for the consideration of the jury of an equitable relation between themselves as co-sureties, founded upon a contract, tacit or expressed."

27 Enterprise Brewing Co. v. Canning, 210 Mass. 285, 287, 96 N. E. 673. "According to this general rule the defendant is liable to the plaintiff for the whole amount unless by agreement between themselves they were joint guarantors or joint sureties, in which case the defendant would be liable

to the plaintiff for only one-half of that amount.

We think the evidence insufficient to show such an agreement either express or implied. The defendant testified that she never had any talk with the plaintiff about signing the note, but that she knew the plaintiff signed it with her, and that the note was given to raise money at the bank for her husband.' The evidence of Myers does not show or tend to show any such agreement. See Sweet v. McAllister, 4 Allen, 353, 354. The fact that in the series of renewals, of which the note in question seems to have been the last, there was a change in the order of the indorsements or guarantees does not raise any presumption of such an agreement. Even although the defendant was a prior indorser or guarantor of some of the former notes, the change in the order is as consistent with the view that it was made as a condition of the plaintiff's consent to a renewal as with the view that it was made inadvertently or as a matter of indifference."

28 Friedman v. Maltinsky, 260 Pa. 312, 103 Atl. 731, and see cases in this section passim.

29 Lewis v. Monahan, 173 Mass. 122, 53 N. E. 150; Farwell v. Ensign, 66 Mich. 600, 33 N. W. 734; Hubbard v. Matthews, 54 N. Y. 43, 13 Am. Rep. 562.

30 Weeks v. Parsons, 176 Mass. 570, 575, 58 N. E. 157. "It was not necessary that there should be a con

better view is that an agreement to become accommodation indorsers for another, in the absence of other circumstances, of itself implies an agreement to share the loss equally.31

§ 1263. Release or inequitable dealing with one co-surety partially discharges others.

Each of several co-sureties is in legal effect as against the others a principal for his proportion of the debt and a surety as to the rest, and a release of one is therefore a release of one who is in part a principal. The same is true where several codebtors are all principals. In both cases as to part of the debt as between one another each is a principal and as to part he is a surety. If the law of suretyship is logically followed, releasing or giving time to one co-surety or to one of several principal debtors, will discharge the others in respect to the portion of the debt as to which the party released or given time to is a principal. As has been previously seen, 32 the law of co-debtors is old, that of principal and surety is modern, and the old law that a co-debtor who is a principal as to part is not discharged by giving time to a co-principal still persists; 33 although if they are bound jointly or jointly and severally a release or any absolute discharge of one discharges the others. 34 But in the case of co-sureties, the equitable principles of suretyship are observed, and accordingly each must be treated as between himself and his co

tract in so many words to sign as co-sureties. It was sufficient if it appeared, taking all the circumstances into account, that that was the nature of the liability which as between themselves the parties intended to assume and did assume. Clapp v. Rice, 13 Gray, 403, 74 Am. Dec. 639; Mansfield v. Edwards, 136 Mass. 15, 49 Am. Rep. 1; Mulcare v. Welch, 160 Mass. 58, 35 N. E. 97; Hagerthy v. Phillips, 83 Me. 336, 22 Atl. 223; Macdonald v. Whitfield, 8 App. Cas. 733."

31 Whitehouse v. Hanson, 42 N. H. 9; Love v. Wall, 1 Hawks, 313; Daniel v. McRae, 2 Hawks, 590, 11 Am. Dec. 787; Richards v. Sims, 1 Dev. & B.

48; Douglass v. Waddle, 1 Oh. 413, 422, 13 Am. Dec. 630; Marquardt's Est., 251 Pa. 73, 95 Atl. 917; United States Bank v. Beirne, 1 Gratt. 234, 269, 42 Am. Dec. 551.

32 Supra, § 339.

33 Nor can a co-principal who has paid the portion of the obligation, which, as between himself and the other co-principals, he should pay demand that the creditor shall thereafter treat him as a surety. Fitzgerald v. Nolan, 102 Iowa, 283, 71 N. W. 224; Jump v. Johnson, 12 Ky. L. Rep. 100, 135 S. W. 343. But see supra, § 1258.

34 See supra, §§ 333, 334.