The opinion of the Court was delivered by
Gibson, C. J.Notwithstanding the multiplicity of these exceptions, few of them present any tangible surface; and we are compelled to restrain our notice of them to those that are susceptible of particular examination.
The judgment obtained by the directors from Hank, was said to be collusive. Against whom ? Certainly not against his endorsers, who had no lien or particular claim on his effects. There can be no collusion where there is a bona fide debt to be secured; and the bank, holding other notes drawn by him, on which the endorsements were discovered to have been forged, did what? Took measures to secure itself, without having given the actual endorsers notice of his delinquency, and without having had him arrested. Well, they were not bound to give notice, or to take care of the endorsers, whose business it was to take care of themselves. But they kept the matter secret till they had obtained the first security, and the drawer had fled. What then ? They were not bound to arrest him, or to publish their doings, or to consult the other creditors. An endorser is taken for the very reason that the drawer’s property may perhaps be insufficient, and that the endorser’s property may be added to it; but that gives the endorser no right to come upon the drawer’s effects in preference to the holder, in regard to another debt, by insisting that the holder shall take satisfaction of the debt secured by endorsement, out of the effects in the first instance. With regard to debts not thus secured, the endorser and the holder stand on the same footing as any other creditors; between whom, everything depends on superior vigilance in obtaining the first security, in a scramble where each must shift for himself. The holder, therefore, like any other creditor, may lay hold on’all the drawer’s property, where he can do so by legal means. The exception to the means, in this instance, is that the consideration of the judgment, as it is said, was the composition of a misdemeanor; of which, however, there was not a spark of evidence. The other objection, that the bank was bound to take Hank’s assignment, is destitute of all plausibility. The directors had aright to elect the judgment as a preferable security, and insist on having it.
The protest contains an assertion of demand at the bank, which, prima, facie, was certainly sufficient. The notary, however, *100testified that he had made no actual demand, but that the notes were handed to him for protest by the cashier on the last day of grace; and that he presented them for payment the day following. But what necessity was there for a demand when funds were to have been provided at the bank, and when the endorser had waived notice of non-payment by a memorandum on the note at the time of endorsing it ? The interpretation is that he agreed to become immediately liable, without more, in case the note should not be taken up by the drawer at its maturity. There was no need of positive proof that the cashier was at the bank during all the business hours on the day of payment, in order to receive it; for the presumption is that he performed his duty, and it accords, too, with the usual course of transactions.
Most of the remaining exceptions relate to” the weight of the evidence in regard to particular facts; which is not a subject of legal direction, and consequently not of error. Some of them, too, relate to what it is supposed the judge ought to have charged, even without a prayer for specific direction to call his attention to the subject; and for this also he is not responsible. It is even alleged that he ought to have made a defect in the declaration a subject of direction, though the jury had nothing to do with it. This mode of assigning errors may prolong an argument, by complicating the details, and give unnecessary trouble; but it can do the plaintiff in error no good.
Judgment affirmed,