#### Samuel Sandford *versus*Samuel Dillaway.

The insolvency of the maker of a promissory note, although known to the endorser, does not excuse the holder from a demand on the maker, and notice to the endorser.

This was *assumpsit*on a promissory note, dated *December*31, 18U7, for 284 dollars 19 cents, payable to the defendant or order in six months with interest and grace, and endorsed by the defendant.

It appears from the report of *Parker,*J., before whom the cause was tried, that the note was originally given to Messrs. *Gardner Downer*in renewal of another note signed by S'. *Dillaway,*Jun., and endorsed.by *S. Williams,*which *Gardner &f Downer*received in payment for articles of merchandise sold by them to *S. D.,*Jun. The note declared on was negotiated to the plaintiff after it became due. There was no evidence of any seasonable demand upon * >S. *D.,*Jun., the promisor, or notice to the defend- [ *53 ] ant, the endorser. But the plaintiff relied upon evidence tending to prove that at the time of the endorsement, which was on the day of the date of the note, S'. *D.,*Jun., was insolvent, and that his insolvency was then known to the defendant.

The judge instructed the jury that if they were satisfied, from the evidence, that S'. *D.,*Jun., was insolvent at the time of' the endorsement, and that this fact was then known to the defendant, they might return a verdict for the plaintiff; and the verdict of the jury was accordingly for the plaintiff; the said direction having been *64given with a view to bring the general question before the Court; and the verdict was to be set aside, and the plaintiff to become nonsuit, if the direction was wrong.

*Townsend,*for the defendant,

insisted that a demand on the maker, and notice to the endorser, were indispensable conditions of the liability of the endorser ; and, the rule being universal, the insolvency of the maker, and the knowledge of that insolvency by the endorser, could not form an exception. (1)

*Bigelow,*for the plaintiff,

argued that the rule did not apply to the case of accommodation notes, as the one in question was; and he cited and relied on the decision in the case of *De Bertd*vs. *Atkinson,*(2) particularly the opinion of *Buller,*J. The same point was fairly implied in the case of *Corney*vs. *Da Costa.*(3) He acknowledged, however, that there were authorities on each side of the question, and it was for the Court here to decide according to the best principles applicable to the question. The cases cited from the *New York*reports were not authorities binding on this Court.

The endorsement being, in the case at bar, simultaneous with the making of the note, the defendant might be considered as an original promisor. Then a decision against the plaintiff in the present action would be but turning him over to another remedy, against which this defence would not lie.

(1)

 2 *H. Black.*609, *Nicholson vs. Gouthit.*— 2 *Caines’s Rep.*343, *Jackson vs.*Richards.—4 *Cranch’s Rep.*141, *French vs. Bank of Columbia.*—11 *East.*113, *Esdaile vs. Sowerby.*—13 *East.*187, *Smith vs. Becket.*

(2)

 2 *H. Black.*336.

(3)

 1 *Esp. Rep.*302.

*Per Curiam.*

There have been contradictory opinions and decisions on the point brought before us in this case. We must [ * 54 ] settle it on the best principles that occur to us. * The endorser of a promissory note contracts that he will pay the contents, provided the maker does not pay it when regularly demanded of him, and seasonable notice of his refusal or neglect is given to the endorser. This demand and notice he has a right, in all cases, to insist upon; for this reason, that, upon payment by him, he may have his remedy over against the maker. And although the insolvency of the maker renders his remedy less valuable, it does not necessarily render it worthless. The holder of the note is bound by the rule. In the case at bar, the plaintiff has not complied with it; and for this cause he is not entitled to a recovery The verdict must therefore be set aside, and the plaintiff must be called. (a)

*Plaintiff nonsuit.*

*65ADDITIONAL NOTE.

*[Bank of U. S.*vs. *Weisiger,*2 *Pet.*347. — *Same*vs. *Tyler,*4 *Pet.*366. — *Jervey*vs. *Williams,*1 *Bai.*453. — *Johnson*vs. *Harth, Ibid.*482. — *Allwood*vs. *Haseldon,*2 *Bai.*457. — *Brunson*vs. *Napier,*1 Yerg. 200, (overruling *Stothart*vs. *Parker,*1 Term, 260.) - *Randolph*vs. *Cook, 2 Port.*286.

But see *Thompson*vs. *Armstrong, 1 Breeze,*23.—F. H.]

(a)

*[Farnam vs. Fowle,*12 *Mass. Rep.*89. — *Mead*vs. *Small,*2 *Greenl.*207. — *Ireland vs. Kipp,*11 *Johns.*231. *—Boston*vs. *Baker,*1 *Serg. & Rawle,*334. — *Smith vs.**65*Beckett,*13 *East.*187.—But see Bond vs. *Farnam,*5 Mass. Rep. 170. — *Tower*vs. *Durell,*9 *Mass. Rep.*332.— *Crossen*vs. *Hutchinson,*9 *Mass. Rep.*208. — Ed.]