A guaranty of a negotiable instrument may result from an actual contract of guaranty upon the bill or in a separate written agreement,1 or may result from the relation of a party to the bill. The actual contract of indorsement upon the bill itself may either be written upon the bill or may be provable by parol. Thus, if the indorser writes or signs upon the bill a guaranty,2 or such words as "holden for the within," or words of similar import,3 he becomes a guarantor. But a blank in dorsement if irregular, but not if regular, may by parol be shown to be a guaranty, and if the agreement at the time of the blank irregular indorsement was for a guaranty by the indorser, the indorsee may write the guaranty above the indorsement,4 but not unless such was the agreement.8 A transfer of the bill by delivery without indorsement may be shown to be a guaranty by parol, and certainly, if the parol agreement of guaranty was made at the date of delivery and receipt of value for the note, such an agreement would have a consideration to support it, and would not be within the statute of frauds.7 The guaranty may also arise from the relation of the party to the paper. Thus the drawer of a bill for whose accommodation the acceptor accepts may be considered a guarantor,8 and an indorser of a bill for whose accommodation the drawer acts may be considered a guarantor.9 Likewise an indorser who is interested in the original consideration for the bill and receives it, or a part of it, may be considered a drawer or a joint drawer and, under some circumstances, equally a guarantor.10 The indorser of a note for whose accommodation the note is made, or who is interested in the consideration, or who receives the consideration or a part of it, may be considered a maker, or joint maker, or a guarantor.11 Likewise irregular or anomalous indorsers who indorse a note before delivery, certainly if interested in the consideration,12 and by the weight of authority regardless of their interest,13 will be considered guarantors of the note. But there is other authority holding that such an indorser is merely an ordinary indorser.14 The weight of authority is that the real contract of the parties upon such an indorsement may be shown by parol.15 In some states parol proof may be adduced to rebut the presumption of guaranty arising from such an indorsement,16 but this rule is denied in other jurisdictions.17 And in those jurisdictions which consider such an indorser to be an ordinal indorser a contract of guaranty may be shown by parol;18 but other authority disputes this proposition.19 In other states it is held that the presumption of guaranty cannot be denied by parol as against a bona fide holder.20 But however the guaranty may arise, whether it be made by a party to the paper in connection with his liability on the paper, or by one not a party, who binds himself only if he has a consideration, the guarantor or surety of the payment of a note, unless he has stipulated therefor, is not entitled, by the best opinion, to a demand of payment by the holder of the note,21 or to notice of non-payment, whether he has been injured by delay or not. The reason is plain: he contracts to perform the maker's obligation, which is to pay without notice. A guarantor for a drawer, however, is entitled to claim a demand and notice to the drawer. But a guarantor may contract for such demand and notice, and then the contract will control." Those courts which hold that a demand is necessary against the guarantor generally confine his right to complain to the extent of the injury suffered, and the notice of non-payment is riot required to be of the strict character as to time that is given to an indorser.23

5 In those jurisdictions which hold the anomalous indorser to be an original promisor, he is a maker, and therefore no demand is necessary as to him. Rey v. Simpson, 22 How. 341; Good v. Martin, 95 U. S. 90. See the note, Book 16, p. 260 (Law. ed.), Sup. Ct. U. S. Reports. The actual contract may, however, be shown. In other jurisdictions he is held to be a guarantor, and therefore subject to the rule in the next section, and subject to the rule that the actual contract may be shown. In other states he is a second indorser, liable to be made a first indorser by evidence, and therefore is entitled to notice. For the authorities upon the rule, see 1 Daniel on Neg. Inst., £Sec. 707 to 714, and see the next section, notes 14 to 20.

1 Duvall v. Farmers' Bank, 9 Gill & J. 44

2Furber v. Caverly, 42 N. H 74; Burt v. Parish, 9 Ala. 211.

3 Blanchard v. Wood, 26 Me. 358; Bay ley v. Hazard, 3 Yerg. 487; Tatum v. Bowner, 27 Miss. 760; Baker v. Kelly, 41 Miss. 696; Furber v. Caverly, 42 N. H 74 ("accountable "). Contra, Vance v. Collins, 6 Cal. 435.

4 Beckwith v. Angell, 6 Conn. 315. But as to a regular indorser. Rodney v. Wilson, 67 Mo. 123; Beeler v. Frost, 70 Mo. 185; Barnard v. Galin, 23 Minn. 192; Barry v. Morse, 3 N. H. 132; Bank of Albion v. Smith, 27 Barb. 489; Schmitz v. Hawkeye Co., 8 S. D. 544 The rule does not apply to irregular indorsers. Their waiver may be shown by parol. See notes 14 to 20, infra.

5 Farmer v. Rand, 14 Me. 225; Edwards v. Shields, 7 Bradw. 70; Beckwith v. Angell, 6 Conn. 315. For an assignment of a non-negotiable instrument, see Josselyn v. Airon 3 Maas. 274.

6 Edwards v. Shields, 7 Bradw. 70; Catlin v. Jones, 1 Pin. 130; Kimbro v. Lamb, 4 Humph. 94; Hill v. Martin, 12 Mart. (O. S.) 177. The last cases are where a waiver was written above a blank indorsement. The two things practically amount to the same agreement.

7 See King v. Summit, 73 Ind. 312; Evans v. Stuhrberg, 78 Mich. 145; Milks v. Rich, 80 N. Y. 269.

8 See Sec. 236, ante.

9 See Sec. 236, ante.

10 See Sec. 236, ante.

11 See Sec. 240, ante.

12 See Sec. Sec. 236, 240, ante.

13See Sec. Sec. 236, 240, ante,

14 This is sometimes caused by a statute, but the rule is held without a statute. See Deering v. Creighton, 19 Oreg. 118; Tillman v. Wheeler, 17 John. 326; Gulden v. Linderman,

34 Pa. 58; Cady v. Shepard, 12 Wis. 639; Early v. Foster, 7 Black f. 35; Fear v. Dunlap, 1 Greene, 331; Holmes v. Preston, 70 Miss. 152; De Pauw v. Bank of Salem, 126 Ind. 553.

15 Rey v. Simpson, 22 How. 341; Cady v. Shepard, 12 Wis. 639; Bright v. Carpenter, 9 Ohio, 139; Feather-stone v. Hendrick, 59 I11. App. 497; Owings v. Baker, 54 Md. 82; Kuntz v. Tempel, 48 Mo. 71; Stack v. Beach, 74 Ind. 571; Chaddock v. Vanness,

35 N. J. Law, 517; Browning v. Merritt, 61 Ind. 425; Faulkner v. Faulkner, 73 Mo. 327.

16 Kingsland v. Koeppe, 137 III 344: Strong v. Riker, 16 Vt 554. But not, of course, to contradict the actual written guaranty. Jones v. Albee, 70 I11 34 But see Lane v. Steward, 20 Me. 98.

17Gurney v. Giegling, 108 Mich. 295; Watson v. Hart, 6 Grat, 633; Allen v. Brown, 124 Mass. 77; Dale v. Gear, 38 Conn. 15.

18 Heath v. Van Cott, 9 Wis. 516; Stack v. Beach, 74 Ind. 571.

19 Coulter v. Richmond, 59 N. Y. 478; Deering v. Creighton. 19 Oreg. 118.

20 Schneider v. Schiffman, 20 Mo. 571; Salisbury v. First Nat Bank, 37 Neb. 872.