Strong, J.
The defendant insists that there was no consideration for his agreement as indorser, and that presents the first question for consideration.
The note was given to take up the three notes in the bank; at whose request, or whether at the request of either of the parties to it, or for whose benefit, is not expressly stated.
The just inference in regard to the persons to be benefited is, that it was designed to be for the mutual benefit of the holders and indorsers of the other notes. They were equally liable for the payment of those notes, and might equally resort to the maker for payment on taking them up. So far as appears, the maker' had no motive to favor either more than the others. No purpose of preference to the plaintiff, in the application or use of the note in question, appears from the arrangement or direction that it was to' be delivered to the plaintiff for the object intended by it. The plaintiff was constituted a trustee of the note for taking up the other notes, and thereby relieving the holders himself and the other indorsers from liability upon them. The holders and other indorsers with the plaintiff had a common interest in that object, and the provision for it, as before observed, was doubtless for their mutual benefit. They were the
cestuis que trust
of the trust committed to the plaintiff. In this view, the question of consideration of the note in controversy is the same, and must be decided in the same manner that it would be if the note had been delivered to the bank, or Rogers, Spencer & Co., for the same purpose for which it was delivered to the plaintiff. If the bank, Supposing it had received the note to take up the others, could maintain an action upon it, so far as relates to a consideration, the objection of want of consideration in the present case is not well taken.
The principle is well settled that a subsisting legal obligation to do an act is a sufficient consideration for a promise to do it. (2
Kent's Corn.,
465 ;
Story on Bills,
§ 183;
Story on Prom. Notes,
§§ 185-195;
Warner
v.
Borge,
15
Johns.,
233;
Jewett
v.
Warren,
12
Mass.,
300;
Cook
v.
Bradley,
7
Conn.,
57;
Mercer
v.
Lancaster,
5
Barr.,
160;
Haseltine
v.
Guild,
11
N. H.,
390;
Hicks
v.
Burhans,
10
Johns.,
243 ;
Edwards
v.
Davis,
16
Johns.,
283,
note.)
It is upon this principle that a note payable immediately, given for an account or othei precedent simple contract debt, is
valid in respect to a consideration. It is not payment of the precedent debt, if it be the note of the debtor alone, nor if it be the note of a third person, without an express agreement to that effect, but that debt remains in force, and an action may be maintained upon it by relinquishing the note at the trial. The note is merely a.further security for the debt. (Colev.
Sackett, 1 Hill,
516;
Waydell v. Luer, 3 Denio,
410.) The common counts in assumpsit, under the former system of pleading, proceeded on the same principle in alleging an indebtedness, and that afterwards, in consideration thereof, the defendant promised to pay. (1
Chit.
Pl., 298, 299.) A creditor may take as many notes from time to time as his debtor will give him for the same debt, and enforce either at his election. It makes no difference as to the consideration whether a note for a prior debt is given expressly as a collateral security, or is in terms or legal effect another principal security. The same consideration which will support a principal, will support a collateral undertaking. Regarding then, the note in question as having been given for the benefit of the bank, as holder of the three notes, and of the indorsers of those notes, it follows that the indebtedness of the maker of the latter notes was a sufficient consideration for his making the other note. And if the consideration was sufficient as to the maker, it also extends to and supports the undertaking of the defendant as an accommodation indorser.
(Story on Con.,
§ 433;
Grant v. Ellicott,
7
Wend.,
227 ;
Bank of Rutland v. Buck,
5
Wend.,
66 ;
Story on Prom. Notes,
§§ 186—195.)
Another position of the defendant is, that the note could not be made available to the plaintiff otherwise than by applying it to the purpose of taking up the notes in the bank. That was the purpose for which the note was given; but the finding of facts is silent as to any particular mode of application to accomplish that object. The general intention in giving the note was to have the other notes taken up with it; but the particular manner of effecting
that intention by means of the note does net appear to have been deemed so important as to make it part of the arrangement. No provision having been made on that subject, it was competent for the plaintiff to adopt any reasonable mode of executing the general intention. If he had borrowed the money of a third person on the credit of this note, informing him at the time of the purpose for which this note was made, and had applied the money to pay and cancel the notes in the bank, no doubt could be entertained but that the security to the lender would be valid, and that he could enforce the note. So, if the plaintiff had advanced the money to pay and take up the notes in the bank, retaining this note for the advance, it is not perceived that the maker or the defendant would have any legal defence to the note. Nor is it perceived that any defence would exist, if the plaintiff had delivered the note to the bank, and they had kept it until it fell due, and then brought an action to collect the amount of it in satisfaction of all the notes, taking no measures in the meantime to enforce the three notes. That would be using the note in suit in substantial accordance with the purpose intended by it; and that in substance is the present case. The bank, whose trustee the plaintiff is as to this note, still holds the three notes, not having, so far as appears, taken any steps to collect them, and the plaintiff is proceeding to collect the note held by him in trust for the payment of the three notes. He is seeking to make it what it was designed to be, a means of payment of the notes in the bank, upon which notes no proceedings have been taken. If he is allowed to collect it, and applies the avails", as he will be under a legal obligation to do, to the payment and taking up of the three notes, without any prejudice to the maker and the defendant from the three notes in the meantime, the trust created will be substantially, fulfilled, the plaintiff will have virtually, in substance and effect, taken up, with the note delivered to him in trust, the three notes in the bank. It was not made
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Strong, J.
The defendant insists that there was no consideration for his agreement as indorser, and that presents the first question for consideration.
The note was given to take up the three notes in the bank; at whose request, or whether at the request of either of the parties to it, or for whose benefit, is not expressly stated.
The just inference in regard to the persons to be benefited is, that it was designed to be for the mutual benefit of the holders and indorsers of the other notes. They were equally liable for the payment of those notes, and might equally resort to the maker for payment on taking them up. So far as appears, the maker' had no motive to favor either more than the others. No purpose of preference to the plaintiff, in the application or use of the note in question, appears from the arrangement or direction that it was to' be delivered to the plaintiff for the object intended by it. The plaintiff was constituted a trustee of the note for taking up the other notes, and thereby relieving the holders himself and the other indorsers from liability upon them. The holders and other indorsers with the plaintiff had a common interest in that object, and the provision for it, as before observed, was doubtless for their mutual benefit. They were the
cestuis que trust
of the trust committed to the plaintiff. In this view, the question of consideration of the note in controversy is the same, and must be decided in the same manner that it would be if the note had been delivered to the bank, or Rogers, Spencer & Co., for the same purpose for which it was delivered to the plaintiff. If the bank, Supposing it had received the note to take up the others, could maintain an action upon it, so far as relates to a consideration, the objection of want of consideration in the present case is not well taken.
The principle is well settled that a subsisting legal obligation to do an act is a sufficient consideration for a promise to do it. (2
Kent's Corn.,
465 ;
Story on Bills,
§ 183;
Story on Prom. Notes,
§§ 185-195;
Warner
v.
Borge,
15
Johns.,
233;
Jewett
v.
Warren,
12
Mass.,
300;
Cook
v.
Bradley,
7
Conn.,
57;
Mercer
v.
Lancaster,
5
Barr.,
160;
Haseltine
v.
Guild,
11
N. H.,
390;
Hicks
v.
Burhans,
10
Johns.,
243 ;
Edwards
v.
Davis,
16
Johns.,
283,
note.)
It is upon this principle that a note payable immediately, given for an account or othei precedent simple contract debt, is
valid in respect to a consideration. It is not payment of the precedent debt, if it be the note of the debtor alone, nor if it be the note of a third person, without an express agreement to that effect, but that debt remains in force, and an action may be maintained upon it by relinquishing the note at the trial. The note is merely a.further security for the debt. (Colev.
Sackett, 1 Hill,
516;
Waydell v. Luer, 3 Denio,
410.) The common counts in assumpsit, under the former system of pleading, proceeded on the same principle in alleging an indebtedness, and that afterwards, in consideration thereof, the defendant promised to pay. (1
Chit.
Pl., 298, 299.) A creditor may take as many notes from time to time as his debtor will give him for the same debt, and enforce either at his election. It makes no difference as to the consideration whether a note for a prior debt is given expressly as a collateral security, or is in terms or legal effect another principal security. The same consideration which will support a principal, will support a collateral undertaking. Regarding then, the note in question as having been given for the benefit of the bank, as holder of the three notes, and of the indorsers of those notes, it follows that the indebtedness of the maker of the latter notes was a sufficient consideration for his making the other note. And if the consideration was sufficient as to the maker, it also extends to and supports the undertaking of the defendant as an accommodation indorser.
(Story on Con.,
§ 433;
Grant v. Ellicott,
7
Wend.,
227 ;
Bank of Rutland v. Buck,
5
Wend.,
66 ;
Story on Prom. Notes,
§§ 186—195.)
Another position of the defendant is, that the note could not be made available to the plaintiff otherwise than by applying it to the purpose of taking up the notes in the bank. That was the purpose for which the note was given; but the finding of facts is silent as to any particular mode of application to accomplish that object. The general intention in giving the note was to have the other notes taken up with it; but the particular manner of effecting
that intention by means of the note does net appear to have been deemed so important as to make it part of the arrangement. No provision having been made on that subject, it was competent for the plaintiff to adopt any reasonable mode of executing the general intention. If he had borrowed the money of a third person on the credit of this note, informing him at the time of the purpose for which this note was made, and had applied the money to pay and cancel the notes in the bank, no doubt could be entertained but that the security to the lender would be valid, and that he could enforce the note. So, if the plaintiff had advanced the money to pay and take up the notes in the bank, retaining this note for the advance, it is not perceived that the maker or the defendant would have any legal defence to the note. Nor is it perceived that any defence would exist, if the plaintiff had delivered the note to the bank, and they had kept it until it fell due, and then brought an action to collect the amount of it in satisfaction of all the notes, taking no measures in the meantime to enforce the three notes. That would be using the note in suit in substantial accordance with the purpose intended by it; and that in substance is the present case. The bank, whose trustee the plaintiff is as to this note, still holds the three notes, not having, so far as appears, taken any steps to collect them, and the plaintiff is proceeding to collect the note held by him in trust for the payment of the three notes. He is seeking to make it what it was designed to be, a means of payment of the notes in the bank, upon which notes no proceedings have been taken. If he is allowed to collect it, and applies the avails", as he will be under a legal obligation to do, to the payment and taking up of the three notes, without any prejudice to the maker and the defendant from the three notes in the meantime, the trust created will be substantially, fulfilled, the plaintiff will have virtually, in substance and effect, taken up, with the note delivered to him in trust, the three notes in the bank. It was not made
a condition to a liability or an action upon the note, that the others should be taken up—a mere trust was created for taking up the three notes with this one, and the maker and the defendant can have no cause to complain at being required to pay this note, so long as the other notes are not -‘allowed to prejudice them, and those notes must be taken up with the proceeds of the note in question.
If we look into the testimony—as undoubtedly we may do for the purpose of a construction of the finding that this note was made to take up the three notes and was to be delivered to the plaintiff for that purpose—we find by the testimony of Tallman, which is uncontradicted, that if the note should not be discounted, the plaintiff was to hold it until due, for the purpose of taking up those notes. From this testimony, it is clear that it was not made essential that the notes in bank should be taken up to render this note available, but that it was contemplated, in case those notes should not be taken up before this became due, the latter should be paid and the avails should be applied to the payment of the other notes. This is in harmony with the construction above given of the arrangement as found by the court at the trial.
The case of
Kasson
v.
Smith
(8
Wend.,
437), is materially different from this note. In the former, the note was delivered to be discounted at a particular bank, which bank refused to discount it; and it was given upon terms to be performed by the plaintiff, which were in no manner complied with by him.
The only remaining objection by the defendant to his being held liable in this suit, is founded upon the direction by the plaintiff to the notary public not to charge the prior indorser, and the exclusion of evidence that the prior indorser would have been charged but for that direction. The plaintiff was under no obligation to the defendant to charge the prior indorser, and might lawfully direct that notice of the protest be served only on the defendant. The holder of a
note is required to charge only the indorsers to whom he desires to look for payment, and it belongs to each indorser to see for himself that prior indorsers are duly fixed, if he would have a remedy over against them.
The j udgment should be affirmed.