any one else could have been held liable on the order if detached from the account. That order, therefore, can be regarded as but little more than an acknowledgment of the justness of the account; and we think it may be considered quite doubtful whether a protest or suit at the first term of the court was necessary in order to fix appellant’s liability. But if we regard the instrument in the most favorable light for appellant, and c.onsider it as a bill of exchange, then the holder would certainly have the right to bring suit, under the statute, instead of protesting it for non-payment (Art. 229, Pasch. Dig.); but he could not have sued Hoffman, Musick & Co., for they were not requested to accept, but to pay on demand, and they did neither. But it is also clearly established, that within about one month from the making of the order, Hoffman, Musick & Co. were notoriously insolvent, and were bankrupts ; and if they had accepted the order on the day of the execution, yet the holder need not have sued them after their bankruptcy, in order to fix the liability of the maker. (Insall v. Hobson, 16 Texas, 128.) His liability was fixed by the insolvency of the drawee, and he cannot now. complain that he was not sued as soon as he might have been.
The diligence by bringing suit, as prescribed by the statute, in order to fix the liability of the maker, is a substitute for demand, protest and notice, as required by the law merchant. (Sydnor v. Gascoigne, 16 Texas, 456.) If, therefore, suit was brought against the maker at the first term, or if the drawer became notoriously insolvent before the first term, after the maturity of the draft, in either case the liability of the maker became absolutely fixed, and he has no right to complain of the laches of plaintiffs in prosecuting this claim against himself. Appellant claims that he has been damaged by the laches of appellees in prosecuting their claim ; but he has failed to