By the Court,
Nelson, Ch. J.I am of opinion the learned judge erred in his charge to the jury upon the question of waiver of notice; and that no satisfactory, or legal excuse for want of the same was given upon the trial.
In the first place, it is quite apparent that notice of protest was withheld for the very purpose of not charging the defendants, as indorsers upon the notes. It seems that the power *125to dispense with it, in case of paper discounted at the bank, was lodged in the president, for this purpose, and had been exercised repeatedly by the predecessor of E. Knower; and, also, by himself, in respect to other paper than the notes in qestion.
Mr. Bronson states, that the president always assumed the authority, and possessed it, of saying what paper should be protested; that the practice of the bank was that all should be; but the president always exercised his discretion to withhold paper from protest. Why withhold it 1 Obviously, right or wrong, for the purpose of not charging the parties, and trusting to other names upon the paper, or securities in hand.
It seems to me plain enough, that this fact lays no foundation whatever for an inference by either court or jury, that the defendants have waived the necessity of due notice, but the contrary. For it shows it was omitted, designedly, with the intent that they should not be charged.
Then as to the securities in the hands of the defendants; we have repeatedly held that this fact, even if they should afford abundant indemnity for the responsibilities assumed in consequence thereof, does not operate to change the legal liability of the indorser so as to make it absolute instead of conditional; in other words, to make him a principal, instead of a surety on condition of due demand and notice. (Mechanics’ Bank v. Griswold, 7 Wend., 166; Spencer v. Hamey, 17 id., 489.)
And as to the blank indorsements, I see nothing in these affording ground in favor of the inference claimed.
Suppose a power of attorney had been given to use the name of the defendants’ firm as accommodation indorsers, which would have been no very uncommon case, could the idea have been entertained, for a moment, that the simple indorsement would have made them absolutely liable 1 or laid any foundation for such an inference 1 I apprehend no body would contend for the proposition. And these blank indorsements are nothing more than a standing power to that effect.
If the defendants had intended to dispense with notice, *126they.would have signed as makers at once, and become absolutely-bound. The very fact of confining their security on the paper to the character of indorsers shows that they meant to limit their liability accordingly; and to be entitled to all the benefits incident to it.
An indorsement in blank, in judgment of law, is as precise and distinct, and as well known and understood, as if the liability, or condition of the usual demand and notice, had been written out upon the back of the paper; and nothing short of the clearest evidence of the assent of the defendants, express or implied, should be regarded as sufficient to waive the condition, or change the nature of the contract, making it an absolute, instead of a conditional one.
Upon the whole, I am satisfied that to allow the circumstances put forth here, whether taken separately or in the aggregate, as laying the foundation for an inference of a waiver of demand and notice, would be going farther than any case has yet gone in dispensing with the contract of the indorser; and farther than will be consistent with the uniformity and stability of the law so important in respect to commercial paper.
Indeed, if we analyze the facts in the case, and reduce them to the particulars bearing upon the defendants, and for which they may be properly held responsible, it will be found that there is little else in it deserving the name of evidence, independently of the unlimited power given to the brother to use the name of their firm as indorsers, leading even in the remotest degree to an assent to the waiver. And we can hardly be expected to infer it from the fact that the power given to indorse is a general one. On the contrary, we suppose that the limitation of the liability assumed to that of indorsement, and that only, shows clearly enough an intention to stand upon the paper in that character, and in that only, however extended or onerous the liability might become.
For these reasons, I think a new trial should be granted.
New trial granted, costs to abide event.