In  the  present  case  the  plaintilif  not  only  himself  knew  the  facts,  but
the  case  shows  that  they  were  also  known  to  Hine,  of  whom  he  pur-
chased the  note.  In  Moore  v.  Cross,  19  N.  Y.  227,  75  Am.  Dec.  326,
the  doctrine  of  the  above  cases  was  approved ;  and  it  was  further  held
that  in  case  the  payee  of  a  note,  indorsed  by  a  third  person  before  de-
livery to  him,  averred  and  proved  that  it  was  the  intention  of  the  in-
dorser  to  become  surety  of  the  maker  to  him  upon  the  note,  and  that
he  indorsed  the  same  for  that  purpose,  he  could  maintain  an  action
and  recover  upon  such  indorsement.  There  is  no  intimation  that  the
action  could  be  maintained  in  the  absence  of  such  proof.  In  Bacon  v.
Burnham,  37  N.  Y.  614,  it  was  held  that  where  a  person  indorsed  a
note,  payable  to  another  or  order,  the  legal  presumption  was,  from  the
face  of  the  paper,  that  he  stands  in  the  position  of  a  subsequent  in-
dorser  to  the  payee,  and  that  in  the  absence  of  proof,  showing  him  in
a  different  position,  the  payee  could  not  recover  against  him,  and,  fur-
ther, that,  the  payee  having  no  right  of  action,  none  could  be  acquired
by  transfer  from  him.     This  is  decisive  of  the  present  case.
