
    WILLIAM HILL, PLAINTIFF IN ERROR, v. JESSE BUCHANAN ET AL., EXECUTORS, &c., OF PAUL BUCHANAN, DECEASED, DEFENDANTS IN ERROR.
    Argued June 24, 1904
    Decided March 6, 1905.
    The possession of a promissory note by an endorser, after its protest for non-payment by the holder, is pruna facie evidence that he has performed his contract of endorsement, and has paid to the holder the amount due upon the note.
    On error to the Essex Circuit Court.
    For the plaintiff in error, James M. Trimble.
    
    For the defendant in error, Francis Child.
    
   The opinion of the court was delivered by

Gummere, Chief Justice.

This was an action upon a promissory note made by Louis A. Gartz to his own order and endorsed by F. Gartz, Paul Buchanan, William Hill and John P. Weber in the order named, each one of whom went upon the note for the accommodation of the maker. L. Gartz himself, the maker of the note, appears upon it not only as maker but also as first and last endorser. When the note fell due it was protested for non-payment, and notice of dishonor was sent to the maker and each of the endorsers. The day following Hill was called upon by’Weber, the last of the accommodation endorsers, who produced the note and demanded its payment. Hill complied with the demand and now seeks to recover the amoupt of the note from the defendants, who are the executors of Buchanan, the endorser,, whose name precedes HilPs upon it. At the close of the ease the trial judge directed a verdict for the defendants, stating as his reason for doing so that the plaintiff had failed to show “that Weber, who stood below him on the note and was an accommodation endorser, had taken up the note by paying value for it and had thus become a quasi holder for value, so as to transmit to the plaintiff such a title to the note as would enable Mm to maintain his suit.”

The plaintiff assigns error upon this instruction.

The fact that the maker’s name appeared upon the back of the note beneath that of the last of the accommodation endorsers, coupled with the fact that afterward the note was protested for non-payment, and that notice thereof was given to both maker and endorsers, was sufficient proof that the maker had parted with the note and thereby fixed the liability of the endorsers not only to the holder but inter sese. This being so, the possession of the note by Weber after its protest and after notice of dishonor had been served upon him justified the conclusion that he had performed his contract as endorser with the holder by taking up the note and was entitled to call upon Hill, as prior endorser, to pay Mm. By his act of endorsement Hill contracted with Weber, his endorsee, that if the maker or previous endorsers did not pay the note at maturity, if duly called upon and notified, he (Hill) would pay it. Having entered into this contract, he was legally bound to perform it; and, having performed it, he was entitled to call upon Buchanan, whose contract with him was identical with his contract with Weber, to perform in his turn.

On the proofs submitted the trial judge should have directed a verdict for the plaintiff.

The judgment under review should be reversed.

For affirmance — Hone.

For reversal — Ti-ie Chancellor, Chief Justice, Dixon, Garrison, Eort, Pitney, Swayze, Bogert, Yredenburgh, Vroom, Green, Gray. 12.  