By the Court,
Savage, Ch. J.By the instrument declared on, several demands are assigned, and the defendant covenants “ that the sum set opposite to each contract in the annexed account or schedule, is now justly and truly due thereon respectively ; that each and every sum shall be well and truly paid to the said Mec. Fire Ins. Co. &c. with the interest on each.” The only question is, whether the plaintiffs can call on the defendant, for payment, without first making demand of those who signed the contracts thus assigned. If the defendant is to be regarded as a guarantee, then a demand from the principal, I apprehend, should be stated in the declaration, and proved upon trial. (2 Johns. C. 409, Bank of New-York v. Livingston.) In that case, the defendant, with others, signed an instrument, by which they “ agree to guaranty to the plaintiffs the re-payment of a loan made to a certain committee.” When the money became due, the committee were called on for payment, which was refused *139for want of funds. Notice was given to defendant, and payment demanded. It was objected that a suit should have been brought against the committee ; but the court said the plaintiffs have done all that was necessary to make the defendant liable. They say, also, that the defendant stands as surety, and is liable in the first instance. I presume the meaning is, that defendant is liable without suit against the principal.
If, however, the contract can be so construed, as that the defendant in this case is liable absolutely, without any recourse to the makers of the notes or contracts, then enough is stated.
It was evidently the intention of both parties, that the plaintiffs should have the security as well of the makers of these contracts as of the defendant. The plaintiffs had possession of the contracts, and they had the property in them. The defendant had no control over them, and cannot have. Even if the plaintiffs should recover of the defendant in this action the amount of those contracts which he has guaranteed, may not the plaintiffs recover of the contractors the several amounts due on their contracts % The contractors continue liable, and for aught that appears to the court, are able and willing to pa}'. The defendant cannot enforce payment, because he has assigned his interest to the plaintiffs. The fair construction of the assignment is, that the defendant agrees to guaranty the payment of the amount due on those contracts. By the case above cited, it seems, that under such circumstances, a demand without suit is all that is necessary; but even- that is not stated in this case. The declaration is therefore bad.
The defendant is entitled to judgment on demurrer. The plaintiffs have leave to amend, on payment of costs.