
    HUCKESTEIN vs. HERMAN.
    A waiver of protest of a note before maturity is a waiver of demand and notice of non-payment.
    A bank may refuse to apply a deposit of a maker of a note after maturity so as to relieve the endorser.
    Error to Common Pleas No. 1, of Allegheny County, No. 195 October and November Term, 1876. This was an action on a note brought by J. J. Herman in trust for the Workingman’s Saving Bank af Allegheny City, against John Huckestein on a note for $1,600 made by John P. Wacker and endorsed by Huckestein as an accommodation endorser and “protest waived.” After the maturity of this note it appeared from the books of the bank that there was a balance of $448 due to Wacker. Huckestein claimed that the words protest waived meant only a waiver of protest and not a waiver of demand and presentment. He also claimed that the $448 should be applied to this note. The bank claimed that there were other liabilities of Wacker to which the $448 could be applied.
    The charge of the court was delivered by
    
      Collier, JY
    Gentlemen oe the Jury : — This is an action brought by Mr. Herman, as trustee of the Workingman’s Savings Bank, against John Huckestein, as the endorser on a note of John P. Wacker, already given in evidence to you. [Upon the note, as you will observe when you look at it, Mr. Huckestein waived the protest (which is not denied), but the point is raised, that in addition to that demand must be made upon the drawer. That, gentlemen, has not been the law up to this time. When the protest is waived you need go no further; the endorser is fixed as the law now stands. The plaintiff is therefore entitled to your verdict, unless the defendant has set up some defence thatisvalid.] The defence he makes is this: — That after the note became due, the plaintiff bank had some $500 in their hands belonging to Mr. Wacker, which should have been set off against this note. The learned counsel for Mr. Huckenstein has produced a bank book here showing a balance of some $500,1 believe, due to John Wacker, which, prima facie sustains their defence. The bank reply that that was a mistake, he getting a note renewed and they crediting up the proceeds, less the discount, without making a contra charge of the face of the note. Of course if that is true, that the balance is wrong, and whether it was a mistake or not is a question of fact for you. If it was not a mistake, the balance would, of course, be coming to Wacker, and the defendant would be entitled to have it set off against the claim.
    The next position taken by the defendant is, admitting this to have been a mistake, that afterwards, Mr. Gipperich, the endorser, was sued, judgment obtained, and a mortgage given by him in payment, and that ought to be applied and considered the same as if it had not been paid ; as if this $500 had not been paid out and was still in the hands of these parties. That raises a question, gentlemen, and I think the law is this : That if the bank hold a balance in favor of the endorser, they are not bound to set it off, but they may do it. They have that privilege, but I don’t think they are bound to do it. [But there is another matter of some importance for you to consider in connection with this point, and that is, that the bank, at this very time, had three or four notes of Wacker’s and if this was not a mistake on their part, and they actually had a balance of this amount of money, these notes being older, they had a right to apply the balance to them. If you should come to the conclusion that these three notes were not paid, the bank would have a right to apply the balance to the payment of them, and Mr. Huckestein could not complain.]
    You take the notes, and if you find there were funds in the hands of this bank which could be applied to the payment of this note, under the instructions I have given you, you make that deduction of four hundred and some dollars, and give a verdict for the plaintiff for the balance; but if you should think that these notes are not paid, and were prior to this one, the bank would have a right to appropriate the balance to their payment; and I think that the judgment against Gipperich is not an election that would bind the bank, or any holder of the paper.
    January 27, 1876, verdict for plaintiff for $1720. Huckestein took a writ of error complaining of the portions of the judges charge enclosed in brackets.
    
      Messrs. Robb & McClung, Esqs., for plaintiff in error,
    argued that a waiver of protest is not a waiver of presentment and demand. Scott vs. Greer, 10 Barr, 103; Scull vs. Mason, 7 Wright 99. The balance due to Wacker should have been credited on his note.
    
      J. C. McComb & J. W. Over, Esqs., contra,
    argued that a waiver of protest is a waiver of the proceedings to protest a note and fixes the liability of the endorser. Coddington vs. Davis, 1 Comstock 186, 3 Denio 16, Parsons on Notes and Bills, Vol. 1, page 578; Gordon vs. Montgomery, 19 Indiana 110; Gove vs. Mining, 7 Metcalfe 212; Day vs. Ridgway, 5 Harris 308. In Scull vs. Mason, 7 Wright 99, there was not a waiver of protest but only a waiver of notice of protest. The bank is not obliged to apply the money standing in Wacker’s name, so as to save Huckestein. Parsons Notes and Bills, Vol. 2, page 252; Martin vs. Mechanics Bank of Baltimore, 6 Harris & Johnston 225, 247.
   The Supreme Court sustained the ruling of the coxxrt below in the following opinion delivered October 23, 1877:

Per Curiam.

A waiver of protest before maturity of a note is a waiver of all the steps leading to it, and includes demand, and notice of nonpayment. This, we think, is the general understanding of a waiver of protest among business men. The very purpose of the waiver is to supersede the ordinary steps and avoid both trouble and expense. To waive the mere act of the notary, and yet to suffer the duty of making demand and giving notice of its result to remain, would scarcely be thought of by business men.

The demand for the application of the deposit of $448 to this note is without equity. It was not a set off nor a counter claim of any sort while former overdue notes had an equal equity to demand application of the same to them. It constituted no defence.

Judgment affirmed.  