
    John Warder and Others versus Daniel Tucker.
    An endorser of a bill of exchange is entitled to seasonable notice of a protest tor non-acceptance, although he endorsed only for the accommodation of the drawer, and although the drawer had no effects in the hands of the drawee.
    Where one, through a mistake of the law, acknowledges himself under an obligation, which the law will not impose upon him, he shall not be bound thereby.
    Case by the endorsees against the endorser of a bill of exchange. The declaration alleges that Lemuel Weeks 8f Son, at Portland, on the 13th of August, 1807, drew their bill of exchange on the house of Lodges Tooth, in Liverpool, for £945 sterling, payable to the defendant or his order at sixty days’ sight; that the defendant endorsed the bill to the plaintiffs, who, on the 12th of October, presented the same for acceptance; that, the drawees refusing to accept the same, it was duly protested, of which the defendant had notice; that, on the 14th of December, the plaintiffs presented the bill for payment, which being refused, it was duly * protested for non-payment, of which the defendant had [ * 450 ] due notice, and thereby became liable, &c.
    In the second count on the same bill of exchange, the plaintiffs allege an endorsement by themselves, and sundry posterior endorsements, and that the bill being presented for acceptance, and after-wards for payment, by the last endorsee, was duly protested for nonacceptance and for non-payment; that afterwards, on the 16t.h of December, one John Copper, at the city of London, paid the same for the honor of the plaintiffs, as second endorsers thereof; that the plaintiffs, on the 2d of March, 1808, received notice thereof, and paid the said John Copper the sum so paid by him, with interest; of all which the defendant, on the 11th of the same March, had notice, and thereby became liable, &c.
    There is a third count for 6000 dollars, had and received by the defendant to the use of the plaintiff.
    The cause came before the Court upon an agreed statement of facts, from which it appears that the bill of exchange declared on was drawn, endorsed, presented for acceptance and afterwards for payment, duly protested in each case, and taken up and paid by Copper for the honor of the plaintiffs, as alleged in the declaration ; that the defendant endorsed the bill for the accommodation of Weeks Son, and to give it a greater credit, he having no interest in it, and no compensation for his endorsement; that the drawers had no funds in the hands of the drawees; that the drawers, about the time of their failure, which was on the 25th of December 1807-, made their promissory note to the defendant for 20,000 dollars, to enable him to secure sufficient property of theirs to indemnify himself against his liabilities on their account; upon which, however, he did not obtain enough to indemnify him against all his said liabili ties, exclusive of his endorsement, for which this action is brought; that no notice was given by the plaintiffs to the defendant, or to the drawers of the bill, of the protest for the non-accept- [ *451 ] anee or the non-payment of the bill, until the * 2d of March, 1808, when the plaintiffs at Philadelphia, where they owell, wrote advice to both the said parties of the protest for non payment, which notice was received by the defendant on the 11th of March, the plaintiffs not having, until the said second day of March, received any notice of the non-acceptance, or of the nonpayment, although a number of vessels sailed from Liverpool to various ports of the United States in the months of October, November, and December, 1807, by which letters were brought and received, some of which were dated the 13th of October, and others on the 3d and 5th of November, and were received in December; that the defendant wrote an answer to the plaintiffs’ letter of the 2d of March, in which he expressed hopes of recovering property of the drawers sufficient to indemnify the plaintiffs, acknowledged his accountability to them for the amount of the said bill, and engaged to do all that was in his power to make payment.
    It was agreed by the parties that if, upon the facts stated, the Court should be of opinion that the plaintiffs were entitled to recover, judgment should be entered for them for the amount of the bill, with customary charges, &c.; otherwise they should become nonsuit, and the defendant recover his costs.
    
      Longfellow, of counsel for the plaintiffs,
    considered that the principal, if not the only objection to their recovery, was the want of due notice to the defendant of the non-acceptance of the bill. But he contended that in a case circumstanced like this, where the endorser was a mere guarantor, having no interest in the bill, as he would have no right of action against the drawers, he had not the same claim to notice a bond fide endorser, who should have paid and received the value of the bill. In a negotiation of this sort, the drawers and the endorser stand on the same footing; and, as the drawers had no funds in the hands of the drawees, notice to them being unnecessary, so was it also to the defendant.  If there were loches, it was not the plaintiffs that [ * 452 ] *were guilty of them. But, at any rate, the defendant, by his letter to the plaintiffs, waived all advantage from want of due notice.
    
      
      Hopkins, for the defendant,
    was stopped by the Court; and the action standing continued nisi for advisement, the opinion of the Court was delivered to the following effect, at an adjournment of the March term in Suffolk: —
    
      
       2 H. Black. 336, De Berdt vs. Atkinson. —5 Mass. Rep. 167, Colt & Al. vs. Noble. — Ibid. 170, Bond & Al. vs. Barnham. — 3 Mass. Rep. 358, Watson & Al. vs. Loring & Al.
      
    
   Curia.

Had this action been brought against the drawers of the bill of exchange declared on, as they had no effects in the hands of the drawees, a want of notice could not have availed them. Bui an endorser is entitled to seasonable notice of a protest for nonacceptance, whether the drawer has effects in the hands of the drawee or not, for the purpose of enabling him to secure himself against the drawer, if he should eventually be holden to pay the bill.

In this case, it appears that the bill was protested for non-payment on the 12th of October, 1807, and that the defendant had no notice thereof until the 11th of March, 1808. It appears, also, that the holder of the bill in England, immediately after the protest for non-acceptance, had several convenient opportunities to give seasonable notice, both to the plaintiffs and to the defendant, of the protest, which he neglected. By this neglect, the holder of the bill had lost his remedy as well against the plaintiffs as the defendant; and if the plaintiffs chose to waive this defence, the defendant shall not be prejudiced thereby. And, although the defendant, when he first received notice from the plaintiffs of the protest of the bill, considered himself as liable by law to pay the plaintiffs the amount of it; yet his ignorance of the law shall not hind him to fulfil an engagement made through mistake of the law. It does not appear to us, from the facts, that the defendant ever received from the drawer funds to discharge this bill. We are, on the whole, therefore, of opinion that the facts stated do not maintain the plaintiffs’ action. Plaintiffs nonsuit. 
      
      
        .) [In England, it seems to be settled otherwise. Stevens vs. Lynch, 12 East, 38. — 2 Camp. 322, Cooper vs. Wall. — Chitty on Bills, 536, n.f., 8th Land. ed. — Ed.]
     