payee of a note lent his indorsement for the purpose of guaranteeing the maker's debt, and knowing that the note would not be paid, had (a) provided money to take it up, it was notwithstanding held that he was discharged for want of notice, for the maker was the real debtor, and the payee a mere surety; as soon as the payee should have satisfied the note he acquired a right of action against the maker, and thus he was entitled to be made acquainted with the neglect which had happened. 2 Henry Blackstone, 609, Ni cholson v. Gou thit. 13 East, 187, A similar decision took place some years afterwards, where the name of the payee was lent for the purpose Smith v. Becket. of giving the maker of a note credit with his bankers. In a subsequent case, it appeared that a bill had been duly negotiated for the benefit and accommodation of the last indorser, and that the acceptor had no effects of the drawer in his hands, but that the defendant, an indorser, was ignorant of that circumstance; and it 15 East, 316, was held that the defendant ought to have had notice. fey. He had in fact lent the security of his indorsement without value to the last indorser, who had received Brown v. Maf the money thereupon; and by Lord Ellenborough: " He Id. 222. was in substance, though not in form, a surety for "W. [the last indorser]; if he had no notice, he might "lose his benefit of reimbursement against W. [the "last indorser]." Further, where the defendant, without consideration, but without fraud, indorsed a bill fictitiously concocted throughout, the Court held him entitled, nevertheless, to notice of dishonour. It was the defendant's own fault to indorse a bill of persons who could not answer over to him; by so doing, he would 4 be the sufferer; but the situation he had placed himself Leachv. Hewitt. in was only that of a common indorser. (a) The case of De Berdt v. Atkinson is shaken by this decision. Taunton 731, 4 Taunton, 733, per Gibbs, J. "The indorser undertakes to pay if those who ought "to pay do not; therefore he is entitled to notice, that "he may have his remedy against them." No evidence will be admitted to control the legal proceedings of an instrument; for if parties intend to stay the legal operation, they ought to express their intention; and therefore a plaintiff was not permitted to prove, as a waiver of notice, that the defendant had Taunton, 92, admitted his knowledge and expectation that payment Free v. Haw kins. 1 Espinasse, N. 4 Barnewall & 4 Barnewall & Id. 413, Trea- of the notes in question was not to be enforced until certain estates had been sold, and then only conditionally. The principle which may be discerned in the preceding cases, of leaving the remedy open against the chief debtor, does not apply, as we have already observed, where the party not receiving notice is himself bound to satisfy the instrument, without looking to any other person. Where, therefore, the payee of a note took money from the maker in order to secure himself, and then made an indorsement for the benefit of the maker's creditors, he was considered as solely liable, being the proper person to pay the note, and his defence of no notice was unavailing. 66 If a person make a bill payable at his banker's, he is not entitled to notice of nonpayment. "The most plain and simple rule to lay down is this: that the "effect of an acceptance in any of these forms is a "substitution of the house, banker, or other person "therein mentioned, for the house or residence of the "acceptor; and consequently, that the presentment at "the house, or to the person named in the acceptance, "is equivalent to presentment at the house of the acceptor." So that, whether the drawer have enough in the hands of his banker to satisfy the amount of his bill, or not, it seems clear that he is not entitled to notice. The same law was laid down by Lord Ellenborough, unhesitatingly, with respect to promissory notes; namely, that the maker was not entitled to notice where he made the instrument payable at his banker's. Lastly, if the holder of a bill or note pay it in his own wrong, as if he discharge it after the laches of a former holder, it will not be competent for him to recover against another person who sets up laches as a defence; and it was so held in a case where the second indorser, having taken up a bill dishonoured for want of acceptance and payment, brought his action against the first indorser. 3 Campb. 261, Pearse v. Pem berthy 12 East, 434, Roscow v. Hardy. Notes. Having traced the bill or note through its different 8. Remedies, stages, we propose now to speak concerning the remedies &c. on Bills and which persons beneficially entitled to the instrument may have, and then to state the defences which may be set up by such as are sued for payment. As soon as a bill is dishonoured for non-acceptance, a right of action arises; and there is no distinction upon this occasion between an indorser and the drawer: so that the holder may sue before the bill becomes due. The right of action is not gone by a loss of the bill or note; but the instrument must be satisfactorily accounted for, as that it has been destroyed by fire or other accident, and the plaintiff's title to it must be proved. An offer of indemnity is not sufficient; although Lord Ellenborough has declared that it is usual and proper to pay upon an indemnity; an entire note must be produced, or proof must be given that the paper itself, or 3 Campbell, that part of it which is wanting, has been destroyed (b). 324, Mayor v. (b) There is a difference where a bill has been indorsed, and where not. For where a bill unindorsed had not been heard of for two years, it was considered no defence to say, Jolinson. 2 Campbell, 214, n. Long v. Bailie. 4 Taunton, 602, Davis v Dodd. 9 & 10 Wm. 3, ch. 17, sect. 3. Holt's N. P. Poole v. Smith. binson. 3 Maule & Sel wyn, 281, Brown v. Mes siter. Proof that a bill had been specially indorsed to the plaintiffs, and that they had not indorsed it away, was deemed sufficient to enable them to recover, although the instrument was stolen. Still where the loss happened before the bill became due, and the acceptor repeatedly and expressly promised to pay it, Lord Ellenborough nonsuited the plaintiff, for there was not any new consideration, but the Court thought that the plaintiff might have required a new bill under the statute of William 3. It is provided by that Act, that if any inland bill be lost or miscarry within the time limited for its payment, the drawee shall, on security given, upon request to indemnify him if such bill shall be found again, give another bill of the same tenour with the first. Again, although a bill had been drawn for more than six years, and after action brought, and notice of trial given, it was stolen; the Court held that the plaintiff could not recover without producing it. The same doctrine has been solemnly established in a very late case. But where the defendant had desired to have a copy of the bill, and afterwards desired to see the original, which was shown him, upon which he admitted the acceptance, and promised to pay, and then the bill was stolen after it had become due, the Court referred it to the Master to compute principal and interest. If the acceptor improperly detain a bill in his hands, 5 East, 477, by the drawer may, nevertheless, sue him on it, and give Lord Ellenbo rough. that such a bill had been accepted for goods sold and delivered. 4 Bingham, 273, Rolt v. Watson. See 1 Broderip & Bingham, 295, Champion v. Terry, where the bill had been indorsed. him notice to produce the bill, or, on his default, give parol evidence of it. The right of action is taken away by the acceptance of a higher security, as against the party giving that security, but not further; and the same may be said, if See Bayley, a judgment be obtained on the bill, as far as it relates to p. 267. the party against whom it is recovered. 329, Norris v. But if a warrant of attorney be given to enter up judgment, which is not entered up, it is merely a collateral security, and the original debt will not be a Campbell, merged; it is like accord without satisfaction. And it Aylett. is observable, that the holder may sue the indorser after a judgment against the drawer, as he may also a prior indorser, after taking another in execution and dis charging him upon a letter of licence. So that the Bayley, p. 268 judgment and execution do not operate as a satisfaction either as to antecedent or subsequent parties to the bill, unless the money, indeed, be levied. So where the holder of a bill sued the acceptor, who obtained his discharge under the Lords' Act, it was held competent for the drawer, who satisfied the holder, to charge the acceptor in execution afterwards; and, indeed, the consequence of the defendant, [the acceptor,] not being liable, would be, that because the drawer was obliged to pay the holder of the bill, the acceptor would be discharged without paying either. 4 Term Reports, 825, Macdonald v. Bovington. Nor will a tender of the sum due, where a bill has been mislaid, on condition of its being delivered, be any Bayley, p. 270. satisfaction. Crowdie; and Bills were sent up on account from country to London 1 Starkie, 483, bankers, at a time when the country bankers were in- Atwood v. debted to the others, and, subsequently, the account see Moody & changed in favour of the country bankers. Ultimately, Malkin, 14, the country bankers failed, and those in London sued Southey. the acceptors of these bills. The defendants counsel eontended, that as the bills were transmitted for the Farquhar v. |