The opinion of the Court was drawn up by

This is an action, on the part of the plaintiff as surety, against the defendant, as his co-surety, for a contribution of a moiety of what he had paid for their principal. Exception was taken at the trial, of a character somewhat indistinct and novel. It purports to be to the charge of the Judge to the jury, “ upon the ground, that the whole evidence was insufficientit is not stated wherein it was so, whether to entitle the plaintiff to recover, or to authorize the Judge to submit the cause to the jury, with instruction that they might find for the plaintiff. If the former, it formed no ground for exception. It was not matter of law, but of fact, within the exclusive province of the jury for decision. If the latter, it should appear, that there was no evidence from which the jury could reasonably infer the facts necessary to entitle *473the plaintiff t.o recover. But. it is apparent that, there were acts in the case tending to raise the presumption, dial the defendant might have understood, at the time of affixing Ms signature, that the plaintiff was but a co-surety. It was evident that Clark brought the note to Fernald, and induced him to sign it for his, Clark’s, accommodation ; that Clark thereupon took the note, and carried it away, and, before it was discounted at the Bank, it appears that the defendant must have added his signature to it. It may well be presumed, therefore, that Clark alone presented it to him for his signature; and, being made payable to the Bank, it was apparent it was to be there negotiated for the benefit of Clark, or of Clark and Fernald, and as Fernald did not request his signature and Clark did, the presumption might well bo, that it was for Clark’s accommodation. Again it can scarcely be presumable, that he should put his name to a note without ascertaining what the object of it was ; and this presumption may be entertained more readily as Clark lias deceased, so that his testimony, for any thing more decisive, cannot be had.

But it is not clear that the instruction was not quite too favorable for the defendant. In Warner v. Price & al. 3 Wend. 397, Savage C. J. remarked, that the plaintiff, upon its appearing'that all but the first signer had put their names to the note in suit in that ease as sureties, they must all be regarded as co-sureties, “ unless a state of facts be shown to the Court from which it shall appear positively, or by legal intendment, that, the defendants intended, as to the subsequent signers, to stand in the character of principals.” This was a caso like the one at bar, in which it appeared, that the plaintiff had signed as surety, when all the others, so far as indicated by the note itself, were principals. No such positive evidence or legal intendment is to be found in the case at bar, except such as arises from the manner in which the names appear upon the note; and this the Chief Justice did not consider of any force, after it appeared in fact that the previous signers, with the exception of the first, were but as sureties.

it was argued by the counsel for the defendant, that the *474ruling of the Court, that the plaintiff, notwithstanding it does not appear on the note that he signed as surety, might show by parol evidence, that he was in fact but a surety, was erroneous. But the exception can scarcely be deemed to embrace such a point; it is to the sufficiency of the evidence; not to the admission of it.' But if the exception could be considered as embracing such a point, it is far from being clear, that it could have prevailed. Nothing is more common in legal proceedings, than for one, who may have signed a note with another, without naming himself as surety, to be allowed to show, that he was such, whenever it becomes necessary to have a remedy against his principal for money paid thereon for him. And by parity of reasoning it is evident, that the same may be done against a co-surety in a suit for a contribution ; and the authorities, are fully to the effect that he may do so. Warner v. Price & al. before cited; Bank v. Kent, 4 N. H. Rep. 241 ; Carpenter v. King, 9 Metc. 511; McGee v. Prouty, ib. 547.

Exceptions overruled.