
    *The Bank of Virginia and May v. Boisseau & Others.
    
    November, 1841,
    Richmond.
    Subrogation-Endorsers — Trust Deed to Indemnify First Endorser — Case at Bar. — A deed of trust is executed to indemnify a first endorser at bank from loss: but tho’ the note is not paid, the first endorser is exempted from liability by the failure of the bank to give him due notice of dishonour: Hum, neither the bank nor any subsequent endorser, has any claim to rank as creditor on the trust fund under the deed of trust, by subrogation to the first endorser, who was thereby indemnified, but who never sustained any loss.
    On the 19th March 1829, Edward Boisseau executed a deed of trust to John Goode, conveying certain property for the indemnification of Peter Boisseau and others. The deed recited, that Peter stood bound as endorser for Edward on two negotiable notes that had been discounted by the bank of Virginia at Petersburg, one for the sum of 4500 dollars, and the other for 1200 dollars, both of which had been executed in January preceding, and were renewable according to the course of business in said bank at the end of every sixty days, at the pleasure of the president and directors of the bank; and that Peter was bound as surety of Edward in two administration bonds, one for the due administration of the estate of Archibald Baugh, and the other for the due administration of the estate of Daniel Boisseau, and was bound as surety in a forthcoming bond entered into on an execution sued out by P. Martin as-signee of William Gasquet against the said Edward, and was bound as surety for the said Edward in several other bonds and notes, the amount whereof was not then recollected; and that Edward was indebted to Peter, by note or single bill dated the 2nd May 1827, in the sum of 250 dollars, and to Priscilla Boisseau, by note or bill bearing even date with the deed, in the *sum of 360 dollars, and was bound to pay her the sum of 66 dollars 66 cents annually during her life; and that Edward was desirous to indemnify Peter and save him harmless from all loss and damage by reason of his endorsements as aforesaid, or any other he might make for the purpose of continuing the accommodation of the bank to Edward for the said two sums of money, or any part of them, or of either of them, and to secure Peter the said 250 dollars with all interest due or to become due thereon, and to secure the said Priscilla her annuity aforesaid, and 360 dollars, with all interest which should become due thereon. Therefore, the property, which included all the estate of Edward, was conveyed to the trustee Goode. Upon trust, that whenever Peter should be compelled or called upon to pay all or any part of the two negotiable notes, or of any other note or notes which should be executed in order to continue the accommodation of Edward at the bank, or whenever Peter should be called upon to pay all or any part of any note or obligation in which he was bound as surety for Edward, or whenever Edward should make default in the payment of the 250 dollars with interest thereon to Peter, or of the 360 dollars with interest, or the annuity of 66 dollars 66 cents, to Priscilla, it should be lawful for Goode, the trustee, if required by Peter or by Priscilla, to make sale of the subject, or any part thereof, at such time and place as he should think best, after advertising &c. and out of the proceeds of such sales, to pay and satisfy all charges of sale, and then to pay and satisfy to Peter, his executors, administrators and assigns, all and every sum or sums of money which he should have been compelled to pay as endorser or surety of Edward, and every sum of money with all interest that should be due to Peter or Priscilla, or to their respective executors, administrators and assigns; and so the said trustee should proceed to make sale of the said property, real and personal, and *apply the proceeds until Peter should be fully saved harmless as endorser and surety as aforesaid, and until Peter and Priscilla should be fully satisfied and paid all money which 'should be due them. And if the trustee should be compelled to make sales of the property during the lifetime of Priscilla, he should have power to vest so much of the proceeds of sale in productive stock, or to put out so much at interest, as would suffice to, pay her the annuity of 66 dollars 66 cents for her life, and the principal to be applied after her death to the purposes of this trust. And the surplus of the said property, or of the proceeds of sale thereof, after the indemnification of Peter as endorser and surety, and after payment to him and Priscilla of the debts and annuity aforesaid, should be applied to indemnify Eichard Perry as surety of Edward Boisseau administrator of Archibald Baugh deceased, and if any surplus should then remain, the same should be applied to indemnify John Winston Jones, Thomas Howlett and William Hamlin, the other sureties of Edward administrator of Daniel Boisseau deceased.
    In fact, Peter Boisseau was the first and John F. May the second endorser of a note for 4500 dollars, and Peter was the first and one Eobert Archer was the second endorser of a note for . 1200 dollars, both discounted at the bank of Virginia for the accommodation of Edward Boisseau; and these notes becoming due on the 22nd January 1829, were not renewed, and the first note was protested, and the other was held by the bank, but no notice was given to Peter Boisseau of the dishonour of either; so that' he was held exempt from all liability-for the contents of either. See May v. Bois-seau, and Bank of Virginia v. Same, 8 Heigh 164. Peter Boisseau, therefore, never had any claim for indemnification against those two notes under the deed of trust-of the 19th March 1829; he suffered no loss by reason of either of them.
    *The president and directors of the bank of Virginia and John F. May exhibited • their bill in the circuit superior court of Henrico, against the representative of Edward Boisseau, Peter Boisseau, Priscilla Boisseau, Eichard Perry, John W. Jones, Thomas Howlett and William Hamlin, and Goode the trustee, setting out the deed of trust of March 1829, and claiming that they had a right to rank on the trust subject for satisfaction of the two notes for 4500 dollars and 1200 dollars, on which Peter had been bound as endorser, but had been held exempt from liability by reason of the neglect to give him notice of the dishonour thereof. .The defendants insisted, and the court held, that-the plaintiffs had no such right. The plaintiffs applied to this court for an appeal from the decree; which was allowed.
    Macfarland, for the appellants, and Heigh, for the appellees,
    submitted the case, upon the authority of Hopewell & others v. Bank of Cumberland, 10 Heigh 206.
    
      
      The principal case is cited in Hauser v. King, 76 Va. 735; Moore v. Johnson, 34 W. Va. 678, 12 S. E. Rep. 920. The case of Hopewell v. Bank of Cumberland, 10 Leigh 206, was followed in the principal case.
    
    
      
      See monographic note on '‘Subrogation" appended to Janney v. Stephen, 2 Pat. & II. 11.
    
   PEE CUEIAM.

The decree must be affirmed.  