¶1delivered the opinion of the court.
¶2The bill alledges, that the defendant A. T. Shaw was the *94drawer of a bill of exchange for four hundred dollars; that complainant was the first endorser thereon, and defendant E. Shaw the second endorser, and that both endorsements were made for the accommodation of the drawer; that the drawer of said bill, A. T. Shaw, having become insolvent, executed a deed of trust to the said Ephraim, to indemnify and save him harmless against said liability; that the said Ephraim brought suit against complainant as first endorser on said bill, he, the said Ephraim, having paid and taken up the same, and recovered judgment thereon for the sum of $546 50 damages; that the property conveyed to said Ephraim was .sufficient to have discharged said liability, had it been applied in that way; and that complainant proved upon the trial at law, that said Ephraim had acknowledged “that he had already been indemnified out of the property conveyed in said deed of trust, almost to the amount of the debt, but not quite.” Complainant does not know how the property in said deed has been appropriated, and the partial satisfaction could not be allowed under the pleas which he filed in the cause at law, so that he lost the benefit thereof; and a judgment was rendered against him for the whole amount.
¶3The bill prays, that the execution of said judgment be enjoined, and that said Ephraim be compelled to apply the property conveyed in said deed to the extinguishment of said judgment. To this bill there is a demurrer. We are of opinion, that the first endorser of a bill or note has no equity against the last endorser, who may take up such bill or note by reason of any security he may have obtained from the maker or drawer. He has a right to secure himself by taking a deed of trust or mortgage, and still to pursue his legal remedy against a prior endorser. But if he had actually received payment in whole or in part from the drawer, he would have no right to recover to that extent from the complainant. But if this were so, the complainant might have had an ample defence at law. If he did not make it, either from negligence in failing to get proof, or for want of proper pleas to the action, it is his misfortune. He cannot have a new trial here. Affirm the decree, and sustain the demurrer.