
    *Henry Miser v. John Trovinger’s Executors.
    The drawer of a bill, who has no assets in the hands of the drawee, and has ne reason to expect that the drawee will be provided with funds to pay the bill, or will pay it, is a fraudulent drawer, and is not entitled to notice of nonpayment,
    
      Accommodation drawers, who unite as drawers with the person for whose accommodation they draw, are entitled to notice of non-payment if they had reason to expect their principal would provide funds to meet the bill.
    Notice of non-payment, or what is tantamount to notice, to one joint drawer, is not to be deemed notice to the other drawers, unless all are partners.
    Assumpsit. Demurrer to plea.
    Reserved in the district court of Perry county.
    The declaration is on a bill of exchange for $3,150, drawn at Thornville, Ohio, December 28, 1849, by Trovinger (defendants’ testator), Culbertson, Eisher, and Good, on Babcock & Co., New York city, payable to the order of Culbertson, five months after date, acceptance waived, and indorsed by Culbertson to Smith, and by him to plaintiff. The averments are of demand and non-payment at maturity, and that the drawers had not, either jointly or severally, at any time before or at the time the bill became due and was presented for payment, any effects in the hands of the drawee; and that there was no consideration for drawing the bill, or for accepting or paying it, or any part of it, by the drawee ; and that neither have the defendants, as executors, nor their testator, sustained any damage by reason of not having notice of the nonpayment of the bill by the drawee.
    Plea — That the bill declared on was an accommodation bill, made for the exclusive accommodation of Culbertson ; that all the drawers, other than Culbertson, were his sureties and accommodation drawers; that at the time of their so drawing, he agreed with them to look after the bill and take it up at maturity; that Smith discounted the bill with notice of these facts; that Culbertson, at the maturity of the bill, informed them that it had been taken up; that Culbertson was solvent until long after the maturity *of the bill; that they supposed it had been paid, until on or about December 1,1851, when Culbertson became, and has ever since remained, insolvent; and that Smith was the holder of the bill until long after its maturity, when it was indorsed to plaintiff.
    To this plea there is a general demurrer.
    
      Hunter & Daugherty, for plaintiff,
    made the following points :
    1 Drawers of bills of exchange, whether inland or foreign, who have no effects in the hands of the drawee at the time of the drawing, or between that and the maturity of the bill; and who have no other reason for supposing that the bill will be honored, are not entitled to notice of non-aceeptance or non-payment, because they are fraudulent drawers. Brickerdike v. Bollman, 1 Term, 405; Rogers v. Stephens, 2 Ib. 713; Legge v. Thorpe, 12 East, 171; Walwyn v. St. Juintin, 1 Boss & Pull. 652; French’s Ex’rs v. Bank of Columbia, 4 Cranch, 141; Dickens v. Beal, 10 Pet. 571.
    2. The contract of two or more drawers of a bill of exchange is joint. This is so, although some of the drawers may be principals and others their sureties, or accommodation parties. And the rule, that want of effects in the hands of the drawee dispenses with notice to the drawers of non-payment, can not be restricted by any relation of priDcipal and surety among them, they being but one party to the bill, as to all other parties to it, and the injury of which the drawers can properly complain resulting from want of notice, being only that which is the necessary legal consequence of the position of the parties on the paper, and not growing out of other facts not apparent on its face. French’s Ex’rs v. Bank of Columbia, 4 Cranch, 141.
    3. If notice of non-payment is not fully dispensed with upon the facts admitted in the pleadings, we then contend that, as Culbertson, one of the joint drawers, was “ to look after and take up the bill at maturity,” and did not do it, and, of course, had notice of his own .default, and is in law, upon the facts of the case, charge, able as drawer, all the other drawers are, by reason of the joint character of their contract, likewise bound.
    “ Where the parties are jointly liable on the bill, notice to one *is sufficient.” Byles on Bills, 356, and cases there cited. In the case of partners, notice to one is notice to all. This is because they are jointly, and not severally liable. The same consequences result in cases of other contractors wh.o bind themselves jointly, and not jointly and severally.
    4. The averments of the plea, that Smith knew that the bill was drawn for the accommodation of Culbertson, and that he had agreed with his co-drawers to look after the bill and take it up at maturity, do not change the case.
    The drawers engaged jointly to pay the bill at maturity. Culbertson’s co-drawers knew that they had no funds in the'hands of the drawee. But if it were legally competent to treat the drawers as several and not joint contractors, and if Culbertson’s co-drawers might have reasonably expected that he would, in pursuance of his agreement with them, take up the bill at maturity, this would not entitle them to notice of its dishonor, because the payee is not, in law, bound to take notice of such agreements and expectations. And moreover, Culbertson’s agreement with his co-drawers “to look after the bill and take it up at maturity,” was tantamount to notice to them from the beginning that the bill would be dishonored by the drawee.
    
      L. Oase for defendants, insisted:
    1. That where all the drawers are mere accommodation parties, whether for the accommodation of a drawee, indorser, indorsee, holder,'or acceptor, where such drawers have a right or reason to expect that such person for whose use and benefit they became parties, will provide for the bill at maturity, or in default of such party doing so, that the drawers have a right so to do for their own protection, and then to sue such defaulting party for indemnity ; then, in such case, he who is holder at maturity, is bound to make due demand and give due notice to all the drawers, or they are discharged.
    2. That in the case of joint indorsers, all being accommodation indorsers, whether for the accommodation of any other party to the bill, or a mere outside holder, if they have reason or a right to expect the person for whose use they became parties to *the bill, will provide for it at maturity, and in default thereof, that they have the right to do so, and then sue such defaulting party for indemnity, he who is holder at maturity, must make demand and give due notice to all such indoi'sers, or they are discharged.
    3. That in case where all the drawers, or all the indorsers, are parties to the bill for their own accommodation, and have no right to expect any other person, on the bill or outside of it, to provide for it at maturity, and where they have no interests or rights whatever which may be prejudiced by not having notice of demand and non-payment, in such case the drawing and leaving the bill unpaid is a fraud, and notice is .unnecessary, because it can do no good, and the law does not require an unnecessary act.
    4. But where the party for whose accommodation the bill is eithet’ drawn or indorsed, is himself either a joint drawer or a joint indorser with his accommodation -drawers or indorsers, he is not in the reason of the rule requiring notice, but the others are within the reason of it, and he need not, but they must have notice.
    The following authorities are cited in connection with the foregoing propositions: Story on Bills, sec. 377; 17 Wend. 101; 3 Kent’s Com. (7 ed.) 105, 110; Lafitto v. Slatter, 6 Bing. 623; 2 Smith’s Lead. Cas. (4 Am. ed.) 54, 56, 57; 4 Cranch, 155, 156; Chit. on Bills (10 Am. ed.), 435, 436, 438, citing Brown v. Muffey, 15 East, 214; 3 B. & Al. 619; 8 B. & C. 610.
    “ When there are several persons, who are' joint drawers or indorsers, entitled to notice, who are not partners, each is entitled to notice. Where they are partners', notice to either of the partners will suffice.” Story on Bills, sec. 299; Story on Prom. Notes, see. 329; Bailey on Bills, 285; State Bank v. Slaughter, 7 Blackf. 133; Shepard v. Hawley, 1 Conn. 368; Willis v. Green, 5 Hill (N. Y.), 232; Union Bank v. Willis, 8 Met. 504; Sayre v. Frick, 7 Watts & Serg. 283; 3 Kent’s Com. (8 ed.) 135, note b and 3; 4 Smedes & Marsh. 749; 1 Harrison (N. J.), 429.
    The case of Harris v. Clark, 10 Ohio, 5, does not stand in the way of this doctrine. This decision is an innovation upon the law merchant, standing unsupported by any authority, but *in the face of high authority. Vide Shepard v. Hawley, 1 Conn. 368, and Union Bank v. Willis, 8 Met. 504.
    As to partners, notice to one is notice to all, because each is the agent of all, and notice to an agent is notice to the principal. But as to joint contractors not partners, one is not the agent of the ethers, and therefore the rule, that notice to one is notice to all, does not apply, but each has several rights.
    The fact that Smith knew at the time of acquiring the bill that Culbertson was principal, and that the other drawers were his sureties, does affect Smith as to his rights against the drawers. Griffith et al. v. Reed and Dixon, 21 Wend. 502; Suydam et al. v. Westfall, 4 Hill, 211; 2 Smith’s Lead. Cas. in Eq., (pt. 2) 385; 2 Am. Lead. Cas. 304; 6 Ohio, 17. The bad faith of Culbertson, which excuses notice to him, does not dispense with notice to the other drawers who drew in good faith. Fraud affects only the party to it. 2 Smith’s Lead. Cas. 58; Cory v. Scott, 3 B. & Al. 619; 21 Wend. 507. Accommodation drawers must have notice of non-payment, although they know the drawee will not pay the bill, provided they expect another person to pay it. 6 Bing. 623; 2 Smith’s Lead. Cas., (4 Am. ed.), 54; 4 Cranch, 155, 156; Chit, on Bills (10 Am. ed.), 438, and cases there cited.
   J. R. Swan, J.

The contract of a drawer is, that he will pay the hill, provided it be duly presented and payment duly demanded of ’ the drawee, and in the event of non-payment, he be duly notified thereof. These are, in general, conditions precedent to the liability of the drawer.

This general rule is not denied; but the plaintiff claims that the drawers in the case at bar were placed beyond the operation of this rule, and were not entitled to notice of non-payment of the bill.

It is conceded on both sides, that there were no funds in the hands of the drawee. 'The fact of drawing without funds, in the absence of .other proof to explain it, is a fraud; for the bill is negotiated under the faith that the drawer has or will place effects in the hands of the drawee to meet the bill; and if he had *no

effects in the hands of the drawee, and knew that none would be placed there, and that the drawee would not meet the bill, the whole transaction is deemed fraudulent on the part of the drawer. Another, but subordinate reason is given for this exception, that the drawer can not, in such case, be in any way injured for want of notice of non-payment. But it is the fraud in drawing and delivering such a bill,-upon which the exception substantially rests; for bankruptcy or notorious insolvency of the drawee, or proof that in fact no injury resulted from, want of notice, will not excuse the holder from giving the drawer notice. Notice, therefore, under this exception, is to be dispensed with in those cases where the drawer had no reason to expect, when he drew the bill, that it would be-paid. Thus, in the case of Rucker v. Hiller, 16 East, 43, it was laid; down, that the drawer is entitled to notice, if he have reasonable ground to expect the bill will be paid, although he have no assets in the acceptor’s hands. So, in the case of Lafitte v. Slatter (6 Bing. 623), 19 Eng. C. L. 180, in which the defendant drew a bill on one Tebbs, under the expectation that a third person, not a party to the bill, who owed him, would provide funds for its payment, but neglected to do so, it was held that the defendant was entitled to notice of non-payment. Indeed, the rule is too well settled both by English and American cases to admit of question, that if the drawer has reasonable grounds to expect that the drawee will receive, through the transactions of the drawer, or from some one else, funds to meet the bill, although the drawer had no assets in the hands of the drawee, the drawer is, notwithstanding, entitled to notice of non-payment. 2 Smith’s Lead. Cas., Wallace & Hare’s notes, 55.

The bill in the case at bar, was an accommodation bill, made for the exclusive accommodation of Culbertson, and all the drawers other than Culbertson were his accommodation drawers; and they expected Culbertson to provide funds to meet the bill.

Now, unless there be something in the fact that the drawers were joint drawers with Culbertson, we can perceive no difference in principle between their situation than any other drawers who in good faith draw a bill, under the expectation and belief *that the same will be met by some third person, as in the case of Lafitte v. Slatter, above cited. There is no fraud; and whether Culbertson had made himself a party to the bill or not, if it was in fact drawn for his accommodation, they had a right to look to him as the person who would see that funds were placed in the hands of the drawee to meet the bill at maturity; and if not met, they were entitled to notice so as to have had an opportunity immediately to take up the bill and proceed against Culbertson.

It is true, that if Culbertson had been the sole drawer of this bill, without assets in hand or any expected, no notice to him would have, been necessary. And such seems to have been his position and relation to the holder of this bill, so that no notice was necessary to him, and he may be treated as having notice of the dishonor of this bill. Such being the situation of Culbertson, it is claimed, that inasmuch as Culbertson and his accommodation •drawers forms but one party to the bill, being joint drawers, no relation or rights between them, not growing out of the face of the paper, can be set up as ground for requiring notice of non-payment and all being but one party, notice to one is notice to all; and if notice is not necessary to one, it is not to the others.

But it is not true that the right to notice uniformly depends upon the fact whether the party is entitled to a remedy over on the bill itself, against another party to the bill. The drawer of a bill never has any remedy over on the bill itself, unless it has been actually accepted-; and if presented for payment at maturity, he is entitled to notice of its dishonor. An accommodation indorser is, in general, entitled to notice, although the bill was drawn without funds, and the party for whose accommodation he indorsed is a subsequent indorser, and consequently not liable to accommodation indorser on the face of the bill. Brown et al. v. Maffey, 15 East, 216.

Notice to Culbertson, the drawers not being partners, would not not be notice to the other joint drawers. 3 Kent Com. (8 ed.) 135, notes b and 3; 4 Smedes & Marsh. 749; Story on Bills, sec. 299. Notice to one partner is notice to all, because each is tbe agent of all; and notice to an agent is notice to the principal. *Mere joint drawers are not agents of each other in respect to notice.

But the fraud of Culbertson, in drawing without the expectation of meeting the bill, would not, we think, be tantamount to notice to his co-drawers, they drawing for his accommodation, under the belief that he would meet the bill.

In the case of Harris v. Clark, 10 Ohio, 5, it was held, that a demand upon one of two or more makers of a joint and several note was sufficient to charge an indorser. The presentation of a note for payment to two or more makers of a joint and several note, on the third day of grace, especially where the makers reside at a distance from each other, is attended with embarrassments which do not arise on the giving of notice of non-payment; and in holding that notice to one of two or more joint drawers or indorsers, not partners, can not be deemed notice to all, we do not touch the question decided in Harris v. Clark.

Demurrer overruled.

Bartley, C. J., and Brinkerhoee, Scott, and Sutliee, JJ., concurred.  