Watt v. Mary A. Mitchell, 6 Howard 131

Per curiam. The plaintiff in error was an accommodation indorser of R. Bledsoe, on the note sued on by the defendant in error. It appears that Watt, Burke & Co. had indorsed several notes for Bledsoe’s accommodation, previous to the 18th September, 1837, and that on that day they took a mortgage from Bledsoe and wife, to secure them for their several indorsements, including the present case; that on the 31st May, 1838, Watt, Burke & Co. acknowledged satisfaction for a very large amorrnt of Bledsoe’s indebtedness, and released a considerable proportion of the mortgaged property.

The note sued on was presented for payment on the fourth, and not on the third day of grace — but notice appears to have been given on the proper day for giving notice to the indorser. The defendant, however, admitting that the demand and notice was not regular, relies on the indemnity which the indorser received before the note fell due.

The plaintiff insists that on a foreclosure of their mortgage, which had taken place, they had not funds enough to indemnify them against this demand, and offered evidence of that fact, viz: a copy of the record of foreclosure, &c. which was objected to, and the objection sustained in the court below, and this writ of error is brought to reverse that decision. We are of opinion that this evidence was properly ruled out. The question is, whether an indorser, who obtains indemnity for his indorsement from his principal, does not thereby dispense with notice of demand and refusal to pay.

We think he does; and especially under the circumstances of this case. Here the indorsers obtained a formal mortgage of a very large amount of property, and had the same recorded, as an indemnity against their several undertakings and liabilties; and that they actually, of their own accord, released to their principal a large portion of the mortgaged estate, without any agency or consent of the holder of this note; and, if the property remaining in their hands proved insufficient to indemnify them, it was their own fault, and not binding on the holder of the paper.

Referring to the brief of counsel for the argument on each side of the case, and the authorities, the judgment of the court below must be affirmed.