The opinion of the Court was delivered by
Whitman C. J.The view we have taken of the merits of this case, renders it unnecessary for us to consider whether the amendment, objected to by the defendant, was admissible or not.
The action is upon a guaranty, endorsed upon a negotiable note, by the payee, at the time he negotiated it to one Thompson. The guaranty is in the following words, viz. “ I guaranty the payment of the within note without demand or notice.” The plaintiff, pot having been a party to this agreement, and no demand and notice having been proved to have been made and given, according to mercantile law and usage, cannot recover. The contract of guaranty is regarded as, in its nature, special; and not negotiable ; although placed, by the payee or indorser, upon the back of a negotiable note, and having reference to its contents. Tyler v. Binney, 7 Mass. R. 479; Upham v. Prince, 12 Mass. R. 14; True v. Fuller, 21 Pick. 140; Lamourieux v. Hewett, 5 Wend. 307; Campbell v. Vaughan, 8 Martin, 682; 2 Law Rep. 198, (in Penn. 1829.)
Plaintiff nonsuit.