
    Hayes v. Drain.
    A subsequent indorser of a negotiable note, who pays it under compulsion, need not show that he was duly notified of the non-payment by the maker, to sustain an action against his indorser.
    In a suit by an indorsee against the indorser of a promissory note, it is sufficient to prove that the defendant had due notice of non-payment by the maker, from any party to the note.
    APPEAL from the Dearborn Circuit Court.
    
      Wednesday, December 6.
   Hovey, J.

Hayes sued Drain in an action of assumpsit. The declaration contains a special count, and a count for money paid, &c., for the defendant. The plea of non assumpsit was filed by the defendant, and the cause submitted .to the Court for trial.

The plaintiff and defendant were indorsers on an accommodation note made by Milton Gregg, and payable at the Lawrenceburgh branch of the state bank of Indiana. The note was discounted by the bank, and the proceeds placed to Gregg’s credit. Drain was the payee, and indorsed the note to Hayes, who indorsed the note in blank. Gregg failed to pay the note at maturity, and the bank, on the same day, notified Drain of the non-payment. Hayes was sued on the note, judgment was rendered, and the amount paid by him before the commencement of this suit. All of the foregoing facts, with the note and indorsements, are set out in a bill of exceptions.

The Court, after continuing the cause for advisement, gave judgment at the succeeding term in favor of the defendant, because there was no proof that Hayes was duly notified by the bank of the non-payment of the note by Gregg.

The only question in the record is, whether a subsequent indorser who pays the note under compulsion, must show that he has been duly notified of the non-payment by the maker, before he can sustain an action against his assignor.

We think the plaintiff is not compelled to make such proof. The fact that the bank recovered judgment against Hayes for the amount of the note, is prima facie evidence that Hayes was duly notified; but even if he was not, that fact could not lessen the liability of Drain, who was. Notice is required in these commercial transactions, for the purpose of giving the parties in interest an opportunity of protecting and guarding their rights, and where their rights can not be affected by such notice, the law does not require it to be given. See Chitty on Bills 356. So far as Drain is concerned, it was wholly immaterial whether Hayes was notified or not, and it was not necessary that Hayes should have notified Drain, as it is sufficient to prove that he had due notice from any party to the note. 2 Starlde Ev. 225, and note s. In actions between indorsee and indorser, the plaintiff must prove, “ 1. The indorsement by the defendant, which amounts to an admission of the drawing and the previous indorsements. 2. Due presentment. 3. The refusal to accept or pay. 4. Due notice to the defendant or facts in excuse. 5. Title in himself by indorsement; and, 6. In the case of a foreign bill, a protest.” 2 Stark. Ev. 233.

T. Gazlay and J. Ryman, for the plaintiff

The evidence covers all of these points, with the exception of the fifth; and we think the payment made by Hayes, under the circumstances, fully supplies that link.

Per Curiam.— The judgment is reversed with costs. Cause remanded, &c.  