The defendant, Merrill, who is tho maker of the note sued on, has no other defence except the allegation, unsustained by evidence, that the note is the property of another person. The appeal therefore on his part, must be considered as frivolous.

The other defendant, Mrs. Braekin, is sued as endorser, and pleads want of notice to her of the non-payment of tho note.

This defence cannot avail, because in the form in which her name appears on the note, her obligation was that of a surety. The note is made payable to the *534order of the plaintiff, and not having been endorsed by him, the obligation contracted by one whose name was subsequently placed on the back of the note, was not that of an endorser, under the commercial law, but of an ordinary surety. Cooley v. Lawrence, 4 Mart. 640. 10 L. R. 376.

The plaintiff has stated in his petition, all the facts necessary to establish the liability of this defendant as, under the circumstances, it is fixed by law, and his right to a judgment is not impaired by having mistaken the nature of the obligation of defendant, and having alleged more than it was necessary to prove.

It is therefore ordered and adjudged, that the judgment of the court below be affirmed, with costs and ten per cent, damages, to wit, $40, against the defendant, J. Merrill, for a frivolous appeal.