This case differs from that of Mallory v. Grant et al., ante, 443, though some of the principles which governed us in that case are applicable to this.
In that case, we held that a guaranty of the payment of a promissory note was an absolute, unconditional engagement, by the guarantor, that the maker should pay it at maturity; that a demand upon the maker and notice to the guarantor, were not necessary to charge the latter, but that his liability became absolute upon the failure of the maker to pay it according to its tenor and effect. By applying these principles to the case before us, it appears that Ten Myclc became liable upon the failure of Sabin, the maker, to pay the note at maturity, without any demand upon Sabin, or notice of nonpayment to the defendant
But we are called upon to decide a question in this case which was not involved in that of Mallory v. Grant et al., before alluded to. In that case, the guaranty was made to Mallory, the plaintiff in the suit. In the case before us, it seems clear from the testimony, that the guaranty was not made to the plaintiff, but was made to one of the previous holders of the note. The judge states, in the bill of exceptions, that the reason why he held the defendant liable was, that he considered him a joint maker of the note with Sabin. If he was, then undoubtedly the decision of the judge was correct, and the judgment should be affirmed ; so also the judgment should be *454affirmed, though we should differ-from the judge in the opinion that he is a joint • maker of the note, if we should think him liable to the plaintiff upon the guaranty.
We are of opinion that he cannot be held liable as a joint maker of the note. We are aware that guarantors of the payment of promissory notes have been so held by courts of the highest respectability; but the undertaking of a guarantor of the payment of a note is essentially different from that of the maker. He does not promise that he will pay the note, but that the maker, who has agreed to pay it, and who is bound to pay it, shall perform his agreement. His agreement is absolute and unconditional that the maker of the note shall pay it, but his liability is contingent upon the failure of the maker to pay it. Brown v. Curtis, 2 Comst., 225. We do not see therefore how he can be regarded as a joint maker of the note.
Nor do we think that the contract of guaranty is negotiable. This.seems to follow, from the proposition that the guarantor of a note cannot be held as a maker or endorser; for, if the guaranty is distinct from the note, if it is merely an agreement by the guarantor that the maker shall pay it, and not that he will himself pay it, I do not see how it can be so regarded. Miller v. Gaston, 2 Hill, 188. By the common law, choses in action are not" assignable ; and if we have arrived at a correct conclusion as to the nature of contracts of guaranty, they are not made so by statute. If our view of the law is correct, it is clear that the plaintiff in error should not have been held liable in this action, as the testimony shows that the contract sued upon was not made with the plaintiff, but with one of the previous holders of the'note. The judgment must therefore be reversed.