Bills and Notes. Practice, Civil. Where a promissory note is made payable to the order of the maker and is indorsed by the maker, persons who indorse the note below the indorsement of the maker before the delivery of the note do not become joint makers or co-sureties, but have the rights against each other of successive indorsers.
At the trial of an action at law, in which no demurrer had been filed, the defendant before the jury had been empanelled asked the presiding judge to rule that upon the proof of all the allegations contained in the plaintiff's declaration the plaintiff would not be entitled to recover. The presiding judge refused to make the ruling, and this court, holding that the refusal was right because the declaration stated a good cause of action, found it unnecessary to decide whether the defendant properly could question for the first time the right of action stated in the pleadings after the case had been called for trial.
HAMMOND, J.
It is settled, in this Commonwealth at least, that in the absence of any agreement to the contrary in a case like this, the rights of the plaintiff and the defendant are not those of joint makers, or of co-sureties or guarantors, but are those of successive indorsers. Lewis v. Monahan, 173 Mass. 122, and cases cited. The declaration therefore was sufficient.
It follows that, even if the question involved in the ruling requested, not having been raised by demurrer, could have been raised for the first time by the defendant after the case was called for trial and before the jury were empanelled, the judge properly refused the ruling.
Exceptions overruled.