
    Nathaniel Bond & Al. versus Henry Farnham.
    When the maker of a promissory note has assigned all his property to the endorser for his security against his endorsements, the endorser is considered as waiving a demand on the maker, as well as notice to himself by an endorsee.
    Assumpsit by the plaintiffs as endorsees against the defendant ns endorser of a promissory note dated February 28th, 1807, by which one William Barker, for value received, promised the defendant, to pay him or his order 269 dollars, 29 cents, in six months from the * date, with interest. The declaration sets [ * 171 ] forth an endorsement by the defendant to the plaintiffs, a demand on Barker, and notice to the defendant on the 28th of August, 1807.
    On the trial of this cause before the Chief Justice, at the last November term in this county, upon the general issue pleaded, a verdict was found for the plaintiffs by consent of the parties, subject to the opinion of the Court on the following case: — “ That the note was signed and endorsed as declared by the plaintiffs; that on the 28th of August, 1807, notice, and a demand of payment in writing was left by a runner of the Union Bank, where the note was lodged for collection, at a store, formerly the said Barker’s, with a lad there; but in fact the store was not in his occupation, nor was the lad in his service; that three days after, regular notice was also given by a runner of the same bank to the defendant, that the note was not paid, and he was requested to pay it; which notice and request were given according to usage; that before the note became due, the said Barker had stopped payment, and was insolvent; and the defendant having endorsed for him several notes besides the one now in suit, he assigned to the defendant for his security all his property, which, in fact, was not sufficient to secure the defendant against the notes he had endorsed for the said Barker, exclusive of the note in suit; that Barker still remained insolvent, and without any property; but as he never absconded, his body had been at all times, and then was, liable to be arrested, either upon original process or execution; that the defendant, after he had notice as aforesaid, offered the plaintiffs to pay them the note in suit, if they would take foreign bills in payment, which they refused.”
    If the Court should be of opinion that upon these facts the plaintiffs have maintained their action, the verdict was to stand; otherwise the verdict was to be set aside, and a general verdict for the defendant entered, and * judgment in either [ * 172 ] ease rendered accordingly. And now, at this term,
    
      Selfridge, for the defendant
    objected,. 1. That here was no demand shown on Barker, the maker of the note; nor, 2. was the notice given to the defendant sufficient to charge him. The defendant having been thus legally discharged by the loches of the plaintiffs, his posterior offer to pay the note in a qualified manner cannot charge him. The plaintiff’s refusal to accept the offer wits a waiver of any claim arising out of it .
    
      Whitman, for the plaintiffs
    in answer to the first objection, cited and relied on the case of Heylyn & al. vs. Adamson 
      , and contended that the case at bar shows due diligence, or what was tantamount to it. And as to the second objection, he relied on the usage found in the case.
    
      
      
        Russell vs. Langstaffe, Doug. 497. — Bickerdike vs. Bollman, 1 D. & E. 408 1 Sir. 649.
    
    
      
       2 Bur. 669.
    
   The opinion of the Court was afterwards delivered by

Parsons, C. J.

Twc objections are made to the verdict — that no demand had been made on the maker after the note became due; — and that the defendant had not seasonable notice that the note was unpaid.

The facts agreed are, that, on the day the note was payable, a demand in writing was left with a lad at a store formerly occupied by the maker, but that, at that time, neither the store was in his occupation, nor the lad in his service; that the maker before that time had stopped payment, was insolvent, and continues so to be, but that he had not absconded; that, three days afterwards, notice of the non-payment was given to the defendant. Had the case stopped here, the defendant might have had some reason to complain; for, although a man has stopped payment and is insolvent, 'yet he may have in his possession effects sufficient to pay part of his debts, which a fortunate endorser on receiving seasonable no- [ * 173 ] tice may secure. The case, however, states no * damage, as having been incurred by the defendant from any neglect of demand or of notice. But it states that before this note was payable, the maker had assigned all his property to the defendant, for his security against his endorsements; and that the property was not, in fact, sufficient to meet his other endorsements, ex-. elusive of this note.

Upon these facts we are satisfied that the verdict is right, because, under the circumstances of this case, the defendant had no right to insist on a demand upon the maker. It appears that he knew such a demand must be fruitless, as he had secured all the property the maker had. And as he secured it for the express purpose of meeting this and his other endorsements, he must be considered as having waived the condition of his liability, and as having engaged with the maker, on receiving all his property, to take up his notes. And the nature or terms of the engagement cannot be varied by an eventual deficiency in the property; because he received all that there was. This intent of the parties is further supported by the offer of the defendant to the plaintiffs to take up this note, if they would re ceive foreign bank notes in payment.

We do not mean to be understood that when an endorser receives security to meet particular endorsements, it is to be concluded that he waives a demand or notice as to any other endorsements. That, however, is not this case. But we are of opinion, that if he will apply to the maker, and, representing himself liable for the payment of any particular endorsements, receives a security to meet them, he shall not afterwards insist on a fruitless demand upon the maker, or on a useless notice to himself, to avoid payment of demands, which, on receiving security, he has undertaken to pay.

As to the delay of notice to the defendant, it appears from the original of the case reserved, that this note had been left with the Union Bank for collection, and * that notice had [ * 174 ] been given according to the usage. This part of the case has not been copied for the Court.

As to the variance between the declaration averring a demand on the maker, and the evidence on that point, it might deserve some consideration, if injustice had been done, or if the judgment in this action would not be a bar to any other action on the same endorsement. But in this case it is no objection to the verdict, the allegation being mere surplusage, as we are of opinion that the defendant had waived a demand on the maker.

The case most analogous to this is, where a drawer of a bill had no effects in the drawee’s hands. He cannot insist on a demand upon the drawee, for he could not expect an acceptance, and he suffers no injury by the want of it. The endorser of a note resembles the drawer of a bill. Although once having effects,'as he had a demand on the maker, yet he has afterwards withdrawn from the maker all his property, to enable himself to meet his own endorsements, and had not, when the bill was payable, any remedy, unless, perhaps, the miserable one of seizing the body of a man worth nothing; and that remedy he has never lost .

Let judgment be entered on the verdict. 
      
      
         Quaere as to the correctness of this decision, and see Sanford vs. Dillaway, 10 Mass. 52, and note to 3d ed. — Farnham vs. Fowle, 12 Mass. 89, and notes to 3d ed.— Note to Crossen vs. Hutchinson, 9 Mass. 208, 3d ed. and cases there cited. Ex parte Heath, 2 Ves. Beames, 240. 2 Rose, 141. — Corey vs. Scott, 3 B. A. 619.— Norton vs. Pickering, 8 Barnw. Cresw. 610. — Claridge vs. Dalton, 4 M. & S 226. — Shackray vs. Blackett, 3 Camp. 164. — Brown vs. Maffey, 15 East, 216. — Nichol 
        son ms. Gouthit, 2 H. Bl. 609. — Smith & al. vs. Buckett, 13 East, 187. — Leach vs. Hewitt, 4 Taunt. 731. — Where the endorser is a mere surety, and can, upon payment, maintain an action against any party upon the bill or note, he is entitled to notice. And if he should pay without notice, he could enforce no claim, which he might make in consequence thereof. Roscoe vs. Hardy, 12 East, 434. — Bacheller vs. Priest & al Sup. Jud. Court, Suff. March, A. D. 1832.
     