Morphy, J.,
delivered the opinion of the court.
This case bears much analogy to, and can hardly be distinguished from that of Smith vs. Gorton, 10 Louisiana Reports, 376. It is brought on a bill of exchange, drawn by one Tebo, on Duggan & Co., of Mississippi, and made payable to the order of plaintiffs, at the counting-house of the defendants. The latter endorsed the bill for the purpose, it is alleged, of guaranteeing its punctual payment at maturity. Whatever may have been the decisions made in other states, in cases of this kind, the well settled law here is, that, where a person, not a party to a bill or note, puts his name upon it, ‘. i, , r v he is presumed to have done so as surety, unless he destroys that presumption by showing surprise, fraud, &c., or any other such circumstance. No explanatory evidence has 1 J been offered by defendants, why their names appear first on the back of this bill ; we must then consider their endorse*390ment as a direct and positive undertaking, on their part, to pay this bill, and not as a conditional one. An absolute guaranty could have been written over their name. But the appellants contend that the plaintiffs should be bound by their own pleadings. That they have themselves averred that the bill was intended to have been drawn, not to their order, but to that of the defendants. They say, that if this had been done, defendants would have been payees, and first endorsers, and as such, entitled to all the rights of regular endorsers on negotiable paper. The fact of the bill having been domiciliated, for its payment, at the counting-house of defendants, gives strong countenance to this allegation of error. If such an error has been really committed, it is not by the plaintiff’s, and it is one of which the defendants must have been cognizant. By putting their name' to a bill not made to their order, they must have known that they were making themselves not endorsers, but guarantors, as the plaintiffs allege them to be. But after all, they might well be considered as having received that notice, which they complain of having been deprived of, in consequence of such error, for the demand on the acceptor has been made at their own counting-house, where they very well knew that no funds had been provided, and where they witnessed themselves, in some manner, the dishonor of the bill. The ap-pellees have prayed for damages, as on a frivolous appeal. We do not think this a proper case to award them; an interested party may, perhaps, have had some doubts, and entertained some hopes of reversal.
Bat where the endorsers’names appear first on a bill, although not the payees, and no explanatory evidence is offered, their endorsement will he considered as a direct and positive undertaking on their part, and not conditional.
By endorsing a bill not payable to their order, the defendants became guarantors for its punctual payment at maturity.
It is, therefore, ordered, adjudged and decreed, that the judgment of the court below be affirmed, with costs.