#### Larkin Holt *v.*Salmon & Stroud.

By a law of the state of Georgia, demand and notice are dispensed with, and indorsers and assignors of notes are made liable, as securities. By the same act, the holder forfeits his remedy if he does not *sue in three months*after notice to do so. The defendants in this case, who were citizens of South-Carolina, bought a negro from the plaintiff, who resided in Georgia, and transferred by indorsement, to the plaintiff, two notes of one J. J. Logan, in payment. The contract was made in Georgia, but the plaintiff knew the defendants resided in South-Carolina. Held, that the contract of indorsement in this case was to be interpreted by the law of Georgia.

Under the 2d section of the law of Georgia, (referred to,) if the plaintiff does not sue within three months after notice to do so, the indorser is discharged. But it is not enough, *it would seem,*for the indorser in such a case, to prove that he has given the plaintiff notice to sue, in order to discharge himself from the indorsement; the burden *rests*upon him to show also that the plaintiff had neglected to sue for *three months*after notice.

The declaration in this case set out the making of the note, the indorsement by defendants, demand and notice, and alleged that the defendants *92became liable to pay, &c. Held sufficient, in reference to the law of Georgia, which dispenses with demand and notice, and makes the liability of the indorser an absolute and not a conditional one. The allegation of demand and notice, though unnecessary, does not vitiate the declaration, and may be rejected as surplusage.

In a declaration against an indorser, a variance in setting out the name of the maker of the note from that upon the note offered in evidence, would be fatal. But where the declaration, which was not very legibly written, in some places described the maker’s name as “ Logan,” (the true name,) and in other places it seemed more like “ Ligan,” the court held that it was to be presumed, that the attorney who drew the declaration knew the true name, and that as he had in some places put the name correctly, they would not scrutinize too strictly, in order to turn a party out of court, and that the cause of action was sufficiently set out to be a bar to another suit for the same cause.

*Before EVANS, J., at Greenville, Fall Term,*1838.

The following is the report of his honor, the presiding judge: “ The defendants, who were citizens of this state, bought a negro from the plaintiff, who resided in Georgia, and transferred, by endorsement, two notes of one J. J. Logan in payment. The contract was made in Georgia, but the plaintiff knew the defendants resided in South-Carolina. The defendants told the plaintiff at the time of transfer, he must sue the notes. The endorsement was without date, and the notes were sued in January, 1834. They were lodged with an attorney for collection; Logan confessed judgment, but ran away, insolvent. Nothing was received, except ten dollars. The notes, after judgment, were lost in the clerk’s office, but their loss was proved, and copies of the notes and assignments were produced and proved, by one who saw the assignment made. There was no proof of any notice to the defendants of the failure of Logan to pay, nor of any demand of payment. By a law of the state of Georgia, demand and notice are dispensed with, and indorsers or assignors are made liable, as securities. By the same act, the holder forfeits his remedy against the indorsers, if he does not sue in three months after notice to do so. — I was of opinion the contract was to be interpreted by the Georgia law; and that it was Fnot incumbent on the plaintiff to prove, but on the defendants to show, that notice had been given, *93and that the plaintiff had not sued within three months. One Spencer, a witness, said, he came from Georgia in July, 1833. Before he came away, he heard plaintiff say something about notes he had got from Salmon and Stroud, on Logan. Did not know he spoke of these notes. The notes were not sued until January, 1834; and, if this witness spoke the truth, it would seem the defendants had the notes in July before, and the notice to sue was at the time the notes were transferred. According to my view, this was the only question; and the jury-were directed to find for the defendants, if they believed the witness. ■ They found for the plaintiff: a motion was made for a nonsuit, on the ground of variance between the note described and the copy given in evidence. I did not think the declaration was very legible, but it was not clear there was a variance, and the motion was refused.”

The defendants now renewed their motion for a nonsuit, before this court, on the ground, that the notes given in evidence were not the same as those described in the declaration. If this motion is overruled, the defendants will move for a new trial on the following grounds: 1. Because, the judge charged that the Georgia law ought to prevail in the enforcement of the defendants’ liability. 2. No notice of the loss of the notes was given to the defendants. 3. Because, the jury found contrary to evidence. 4. Because, the plaintiff having received notice to sue, it was incumbent on him to prove that he did so within the three months, and that it was proven by defendants that the plaintiff did not sue in that time. •

Curia, per Evans, J.

The grounds upon which the case has been put.in this court are, 1st, a variance between the declaration and the proof: 2d, that the plaintiff has declared against the defendants, as indorsers, under the statute of Anne, and not as securities, under the law of the state of Georgia: 3d, that having received notice to sue, the plaintiff should have proved that he did so within three months, as required by the Georgia law. On the ground of variance, I have but little to add to what is said in the report. If there was clearly a variance in setting out the name of the maker of the note, it would be fatal. In some places, *94it is clearly ‘ Logan *•’*and in others, it seems more like ‘ Ligan.’ It is to be presumed, the attorney who drew the declaration knew the true name; and, as he has in some places put the name correctly, we ought not to scrutinize too strictly, in order to turn a party out of court. We think the cause of action is sufficiently set forth, to be a bar to another suit for the same cause. The objection stated in the 2d ground is not contained in the notice, and that might be a sufficient reason why we should *not*consider it, as it is more of form than of substance; but, when it is examined well, nothing will be found in it which can avail the defendant. The declaration sets out the making of the note, the endorsement, demand and notice, and if it had gone on to derive the defendant’s liability from the statute of Anne, then, I should think, that he must prove every thing necessary to charge him as indorser. But it does not do this. Bivested of the unnecessary allegations of demand on the maker and notice to the indorsers, it alleges that the defendants became liable to pay, &c. The law of Georgia, by dispensing with demand and notice, makes the liability of the indorser an absolute and not a conditional one, thereby putting him on the same footing as a security. The only objection to the declaration is, that the plaintiff has averred more than, by the law of the 'contract, he is bound to prove. This will not vitiate.

It is very clear, by the 2d section of the law of Georgia, if the plaintiff had neglected to sue within three months after notice to do so was given him, the defendants were discharged. The jury were expressly instructed on this point, and their verdict is conclusive. The argument as I understand it, is, that the defendants having proved notice to sue, the plaintiff on .his part was bound to show he had done so within three months. My own opinion was then, and is' now, that the defendant was bound to prove both parts of the proposition: both were necessary to his defence. But it is unnecessary to decide that point. The whole difficulty was, when did the defendants give notice to sue ? The witness who proved the notice did not prove the time, and, I apprehend, the defendants were bound to show the time, in order that the plaintiff might make out his replication, that his action was brought within three months from the notice. All the difficulty on this *95part of the ease arose from the fact, that there was no satisfactory proof that the plaintiff did not sue within three months after notice. The existence of this was necessary to discharge the defendants; and if he has failed to establish the fact, it is his fault or misfortune, against which we cannot relieve him.

*Thompson*and *Townes,*for the motion.

*Terry,*contra.

The motion is dismissed on all the grounds.

Gantt, O’Neall, Earle, and Butler, Justices, concurred.