concurred in the result, observing that—
This case discloses in substance, the following facts: On December, 6, 1854, one S. W. Porter made his note of that date for $2100, payable to the order of Levi Sawyer & Son, in ninety days after date, which was indorsed by the latter to *341the plaintiff, and is the note on which the defendant, as surviving partner of the late firm of Levi Sawyer & Son, is indorser.
Tristram G-. Mitchell testified that on March 1st, 1855, (which would be some eight days before the maturity of the note,) Porter drew on one Edwin Parker in favor of the defendant for $2100, payable in four months, and that the draft was drawn and delivered to Sawyer, (the defendant,) for the purpose of meeting this $2100 note.
The defendant, (Charles E. Sawyer,) testifies that after he received the money on the draft of $2100, Porter assented to his appropriating the money received on it to the payment of two notes, (one dated July 18, 1854, for $680.49, payable in six months, and the other dated October 6, 1854, for $550 in four months, both signed by Porter, and indorsed by Levi Sawyer & Son, by whom they were paid; that he received the money on the draft, March 28, 1855, or about that time.
Now under this evidence, about which there seems to have been no controversy, the real question was, whether the defendant was legally liable as an indorser, assuming as the jury found that the words “ waiving demand and notice ” were placed over the signature of the defendant, without authority. And that question was or should have been this: Was it necessary, under the circumstances, in order to charge the defendant as an indorser, that he should have had due notice of a demand, and a refusal of payment ? The correct solution of this question depends upon the situation of the parties at the time of the maturity of the note, to wit, on March 8, 1855, at which time the defendant held Porter’s draft on Parker for the amount of the note for the express purpose of securing him against his liability as indorser, which draft was subsequently paid, and the inference consequently is, that it was responsible paper. In Edwards on Bills and Promissory Notes, 637, it is said that “the object of notice is to put the indorser on his guard and enable him to secure his indemnity from the maker or prior indorser; and where that has been fully accomplished, so that the *342indorser has obtained every thing.which notice was intended to enable him to obtain, he is liable without notice.” And further, “ If the indorser has taken full and ample security against the liability incurred by him, he is not entitled to notice.” Citing Cramer v. Sanford, 4 Watts & Serg. R., 328; Lewis v. Kramer, 3 Md. R., 265; Corney v. Decosta, 1 Esp. R., 302. But this principle is too well settled to require the citation of authorities ,• it has become an axiom of the commercial law. Upon the defendant's own testimony, then, recognizing as he does that of Mitchell as to the reception of the draft, and its appropriation, the plaintiff was entitled to recover on his first count. But such an issue was not presented to the jury; the first count appears to have been abandoned on certain contingencies, and reliance placed onthe money counts. I concur in the opinion, that the plaintiff cannot succeed upon those counts, and that the ruling in that particular was erroneous.