French's Executrix V. Harper, for the plaintiff in error. The plaintiffs below claimed a right to recover upon Bank of Co. this note, notwithstanding their laches, upon three grounds. lumbia. *144 1st. Because it was an accommodation note, and no consideration passed from French to Duncanson. 2d. That French had suffered no injury by the neglect of the plaintiffs; and, 3d. The assent of the defendant's agent, after the note became payable. 1st. It is not a note for the accommodation of the defendant's testator, but for that of W. M. Duncanson, the maker. No man ought to be held liable upon a contract further than he has consented to bind himself. If this contract was conditional, he cannot be absolutely bound until the condition has been performed. What, then, was the contract which the defendant's testator entered into by endorsing the note? By the law of Maryland which must decide this case, and which on this subject is precisely the same as the law of England, an exact analogy exists between an endorsed promissory note and an accepted inland bill of exchange. When an endorsed promissory note, payable to order, is endorsed by the payee, it is in truth an inland bill of exchange drawn by the payee, in favour of the endorsee, upon the maker, (his debtor by the note,) and by him accepted. Hence the law with respect to both kinds of paper is the same. The contract of the first endorsor of a promissory note is the same as that of the drawer of a bill of exchange. It is an express, not an implied contract. An implied contract is that which the law (to prevent a failure of justice) presumes the parties to have made, where they have failed to make an express contract for themselves; and courts will vary the terms of such implied contract according to the principles of natural justice. But by writing his name on the back of the note, the endorsor entered into an express contract, the terms of which are as well known, by a reference to the law merchant, as if they were written at large on the He does not thereby bind himself to pay at all events. He only says to the holder, “if you use due diligence in demanding the money of the maker, and he note. ecutrix V. lumbia. refuses to pay it, and if you give me reasonable notice French's Exthereof, I will pay you." It being, then, a part of the express contract between the parties, that the holder Bank of Coshould in reasonable time demand the money of the maker, and give due notice of non-payment to the endorsor, before the latter can be charged, upon what principle can a court of justice dispense with the performance of those precedent conditions? There is no case upon a promissory note, in which they have been dispensed with, except in that of De Berdt v. Atkinson, 2` H. B. 336. and there it was done because the maker of the note was known by all the parties to be insolvent at the time of making and endorsing the note, and, therefore, the contract of the endorsor in that case was not supposed to be conditional, but absolute. But the authority of that case, although attended by such special circumstances, is shaken, if not overruled, by the case of Nicholson v. Gouthit, in the same book, p. 609. where notice to the endorsor of a promissory note was held necessary, although the insolvency of the maker was known to the endorsor before the note became payable, and although he endorsed it for the accommodation of the maker, and merely to obtain him a credit. The latter is in its circumstances more like the case now before the court, *than that of De Berdt v. Atkinson. The judges, in giving their opinion in De Berdt v. Atkinson, relied not on the actual insolvency, but on the knowledge of the insolvency by all the parties, at the time of making and endorsing the note; whereby it appeared that the defendant, in that case, had not annexed the usual conditions to his contract as endorsor; but had waived them; and that the waiver was known to the plaintiffs. It is true that in the case of Nicholson v. Gouthit, it appeared that Burton, the other endorsor, had put into the defendant's hands, funds to meet the payment of the note, but the note not having been demanded when due, the defendant had paid away those funds. But if the defendant was not entitled to notice, he paid away those funds in his own wrong, and, therefore, if any damage arose to him in consequence, it could not make his case the better. It may also be observed that the court, in giving an opinion, did not notice this circumstance as a ground of that opinion; the Chief Justice seems to exclude a presumption of that kind, because he says that * 145 French's Ex- the justice of the case is with the plaintiff, which could ecutrix not be true if the defendant had suffered damages imBank of Co- putable to the laches of the plaintiff. The only ground V. lumbia. *146 upon which the court rested their opinion was, that the form of guaranty which the parties had adopted, required due notice to the endorsor, and therefore, although the justice of the case was with the plaintiff, they could not dispense with such notice. Upon this ground the opinion is certainly inconsistent with the case of De Berdt v. Atkinson; for in the latter the same form of guaranty had been adopted, yet that circumstance was not deemed sufficient to render notice necessary, in a case where the undertaking of the endorsor was to pay at all events; an undertaking which, in that case, was presumed from the fact that the insolvency of the maker of the note was known to all the parties at the time of making and endorsing the note. But in the case of Nicholson v. Gouthit, the maker was not insolvent, but only embarrassed at the time of the making and endorsing of the note, and did not become insolvent until afterwards, and before the note became payable, so that there was no circumstance upon which to build the presumption that the defendant intended to make himself liable at all events. The true principle which will reconcile all the cases upon this point is," that notice need not be given to him who is liable in the last resort." In the present case, the insolvency of the maker of the note is not averred, nor any other circumstance to show that French was liable in the last resort. If the note had been made by Duncanson to accommodate French, and French had received the money from the bank, then indeed it might have been contended, that as French was the person liable in the last resort, he was not entitled to notice. But the case stated is, that French endorsed the note to accommodate Duncanson, who received the money of the bank. The obligation of French, therefore, was simply that of an endorsor of a promissory note; or of the drawer of an inland bill of exchange. Considered in this point of view, the plaintiffs rely upon ecutrix V. It is admitted that an analogy exists between an en- French's Exdorsed promissory note and an inland bill of exchange. But the analogy is not complete until the bill of ex- Bank of Cochange is accepted. There is no case in which notice has been deemed unnecessary, when the bill has been accepted, except that of Walwyn v. St. Quintin, 1 Bos. & Pull. 652. which will be noticed presently. In all the prior cases, in which the want of funds has been holden as excusing the want of notice, acceptance had been refused; so that the question has never arisen on an accepted bill but in the single case of Walwyn v. St. Quintin. It is admitted that it has been decided, that if the drawer has neither funds in the hands of the drawee before the bill becomes payable, nor a right to draw, he is not entitled to notice; and the reason given is, because *he cannot expect the bill to be accepted and paid, and therefore practises a fraud upon the holder; and because he cannot suffer injury by the want of notice. These reasons extend only to the case of a drawer who has no right to draw, and the bill is not accepted; for the acceptance is conclusive evidence that the drawer had funds, (or credit, which is the same thing in substance,) against every person but the acceptor, in a suit between him and the drawer. If the drawee has promised to accept the bill, the drawer has a right to expect that his bill will be accepted, and he has practised no fraud upon the holder of the bill. Notice of non-acceptance, and à fortiori of non-payment of such a bill, may be very material to the drawer, as he would be thereby liable for interest, damages and costs, which he would have a right to recover over against the drawee who had thus violated his faith, in not honouring his bill according to a promise; and by the want of such notice the drawer may lose his remedy against the drawee by his insolvency. This may be the case where the drawer draws the bill for his own accommodation without funds, and the drawee agrees to accept it to give the drawer a credit. But in the present case the bill is drawn, not for the accommodation of the drawer, but of the drawee, and the drawee has not only agreed to accept, but has actually accepted it; and if the reasons for dispensing lumbia. * 147 French's Ex with notice did not apply to that case, much less can they to this. ecutrix V. Bank of Co. lumbia. * 148 If a bill of exchange be drawn to accommodate the drawee, the drawer has a right to expect that it will be accepted; and if accepted, has not only a right to expect, but to insist, that it shall be paid, precisely in the same manner as if it had been drawn upon funds in the regular course of mercantile transactions. He stands precisely in the same situation as if it had been so drawn. In a regular transaction, if the drawee, having funds after agreeing to accept, refuse acceptance, the holder *may immediately call upon the drawer, who, after taking up the bill, may recover against the drawee the principal, interest, damages and costs. So if the bill be drawn for the accommodation of the drawee, and be not accepted, the holder can immediately call upon the drawer, who upon taking it up, may recover of the drawee the amount of the bill, with interest, damages and costs. Immediate notice of non-acceptance is, therefore, equally necessary in both cases; a failure of the drawee in either case being equally prejudicial to the drawer. In a regular transaction, if, after acceptance, the acceptor, having funds, refuse to pay; the drawer, after taking up the bill, may recover against the acceptor the principal, interest, damages and costs. So if a bill be drawn to accommodate the drawee, if, after acceptance, (which is the present case,) the acceptor refuse to pay, the drawer, after taking up the bill, may recover against the acceptor in like manner. If the acceptors in both cases should become insolvent, both drawers would sustain precisely the same injury; the one by being unable to withdraw his funds, and obtain security for the interest, damages and costs, and the other by being unable to get a reimbursement of the principal, interest, damages and costs, which he had been compelled to pay for the accommodation of the drawee. The two cases are precisely parallel; and if notice is necessary in one case, it is equally necessary in the other. If the note of Christian to 2 Bla. Com. 470. be cited, |