
    
      The Executors of A. Sinclair, deceased, vs. James Lynah.
    
    1. A defendant who has taken the benefit of the insolvent debtor’s Act, cannot after-wards plead the statute of limitations to a demand which existed at the time of his discharge.
    2. Where a notary merely informed the endorser of a note that the day of payment had expired, and that payment was expected of him, it was held to be no notice that payment had been demanded from the drawer, and that he had failed to pay.
    3. Whether a demand of payment from the endorser carries with it an implication that the bill has been previously dishonored, is a legal question.
    4. Notice of non-payment to an endorser need not be in any particular form; any is sufficient which gives the endorser to understand that the note has been dishonored.
    
      Before O’Neall, J., Charleston, May Term, 1840.
    This was an action of assumpsit on a note of Edward Lynah, dated 29th April, 1823, payable in sixty days, to James Lynah, or order, and by him endorsed.
    To prove demand and notice, the plaintiffs gave in evidence the protest of the notary, by which it appeared that on the 1st of July, 1823, he left a written demand of payment at the residence of the drawer and endorser.
    The defendant pleaded the statute of limitations. The plaintiffs produced an entry in the minutes of the court of common pleas for Charleston district, by which it appeared that on the 4th of October, 1825, James Lynah’s petition for the benefit of the insolvent debtor’s Act was taken up, and the oath ordered to be administered to him. The clerk proved thatáKpftfld made diligent search in his office, and could find memorial of the defendant’s application and disohai^^ A motion to: strike out the defendant’s plea was, on the authority of Westendorf and King, sustained.
    The defendant then proved, that from 1828 he had been in good credit, and was of sufficient ability to pay, and that he lived in the same town with Sinclair, the testator. Edward Lynah died in September, 1835. This action was commenced in 1838. The defendant was an accommodation endorser, and endorsed many notes in that character for his father, (Edward Lynah,) in 1823. The defendant insisted on the presumption of payment, arising from lapse of time.
    The jury were instructed, that to make the defendant liable, it was necessary that there should be proof of a demand of payment from the maker, at the expiration of the days of grace, and notice to the endorser. The presiding Judge said to the jury, that a demand of payment from both the maker and endorser, might not be equal to a demand of the maker, and notice to the endorser. They, however, had a perfect knowledge of the understanding which commercial men had of a demand of payment from them as endorsers. If it necessarily implied that the note was dishonored by the maker, then the fact of notice was proved, otherwise not.
    They were told that they might, from lapse of time and the other circumstances proved in this case, presume payment ; but if they thought the note was not paid, they were not, from the lapse of time and other circumstances proved, bound to find against their belief.
    They found for the plaintiffs the amount of the note, with interest from the 1st July, 1823. The defendant appealed, on the grounds:
    1. That the statute of limitations should not have been struck out.
    2. That there was no proof of a demand on the maker, and notice to charge the endorser.
    3. That from the circumstances proved, the jury were bound to presume payment. _
    4. That the jury were not authorized®B¿ve interest from 1823.
    Petigru, for the motion,
    contended that the plea of the statute of limitations ought not to have been stricken out, and referred to the words of the Act, 2 Brevard, 154. It was a hardship to deprive a man of the benefit of the Act, who, in early life, had been condemned to insolvency on account of security debts not paid by the surrender of his property. Penalties were not extended in equity, and could there be a greater penalty than an exclusion from the benefit of an Act made for the protection of the citizen 'l
    On the second ground of appeal, Mr. P. argued that there was no notice to the endorser that a demand had been made on the drawer; that the obligation of an endorser is conditional, and differs from a surety, who undertakes absolutely for his principal. The endorser undertakes only on condition. The obligation of the endorser is limited to his express undertaking. He is like a drawer when he receives a consideration. When he receives no consideration, he is liable on the noté only, and liable subject to the conditions as a person guarantying the payment of another’s debt; Chitty, 155. The endorsement is no evidence of money lent, nor of any other consideration; Chitty, 377. Compliance with the condition has always been strictly required; Chitty, 236. Neither the death of the maker, nor his utter insolvency, nor the dissolution of a firm, will dispense with the necessity of demand and notice. Price vs. Young, 1 M’Cord, 340; Johnson vs. Haith, 1 Bailey, 482; Butler vs. Dunham, 2 McCord, 350. Now, what is the condition required 1 A previous demand on the maker, and notice of the demand to the endorser. A demand made before the note is due, is a nullity, though notice is given. Jackson vs. Richards, 2 Cain’s Rep. 343. Notice given before a demand is null. Griffin vs. Goff, 12 Johnson Rep. 423. The holder must make a demand on the last day of grace, and give notice that the party has refused to pay. A demand on the endorser, with notice that the note is unpaid, is insufficient. Aubin vs. Lazarus, 2 McCord, 134; Partly vs. Case, 4 B. <fe C. 339 ; 10 E. C. L. Rep. 350; Solarle vs. Pahner, 20 E. C. L. Rep. 226, and the same in the HousejflHfetfds, 27 id. 351; Gilbert vs. Dennis, 3 Metcalfe, 496.
    McGRATB^ontra,
    on the fist ground of appeal taken, cited the case of King vs. Westendorf, Dudley Rep. 244. On the second, he argued that the protest was sufficient if it put the endorser on enquiry, and cited 2 Johnson’s cases, 338; 9 Wend. 279. Even if the name of the maker, the amount and date, were mistaken, it might still be sufficient. 11 Mass. Rep. 9. The whole object is to apprize the endorser that he is expected to pay. 11 Wheaton, 431. The protest is by a notary, whose duty it is to give the proper notice. A party dealing with a bank, deals in reference to their practice. 3 Pickering Rep. 414; 1 Minor’s Alabama Rep. 89 ; 1 Martin & Yerger, 183.
   Caria, per

O’Neall, J.

This court agrees with the court below, that the defendant could not plead the statute of limitations. His plea was properly struck out, under the authority of King vs. Westendorf, Dudley’s Rep. 244. The second ground, that “ there was no proof of a demand on the maker, and notice to charge the endorser,” makes the only question of any importance in the case.

There is no doubt the rule is, that “ to hold an endorser liable, the law requires the holder, when the note becomes due, to present it to the promisor for payment, and if the promisor neglect or refuse thereupon to make payment, to give reasonable notice of the dishonor to the endorser.” 3 Met. 496. So, too, the notice of non-payment to an endorser, need not be in any particular form : any is sufficient which gives the endorser to understand that the note has been dishonored.' Willis vs. Pattison, 1 Rice’s Dig. 124, sec. 119; Gilbert vs. Dennis, 3 Met. 496; Tindal vs. Brown, 1 T. R. 167. In Hartley vs. Case, 10 Eng. Com. Law Rep. 350, C. J. Abbott said, “ no precise form of words is necessary to be used in giving notice of the dishonor of a bill of exchange; but the language used must be such as to convey notice to the party what the bill is, and that payment of it has been refused by the acceptor.” So in Solarte et al. vs. Palmer et al. 20 Eng. Com. Law Rep. 228, Tindal, C. J., speaking of the notice to charge the endorser, said, “ it should at least inform the party to whom it is addressed, either in express terms, or foÉÉfecessary implication, that the bill has been dislionoretfBBthe holder looks to him for payment.” The case madron the circuit presents the question, whether a demand of payment from the endorser carries with it an implication that the note has been dishonored. Upon a review of the case, and a comparison of it with the cases of Hartley vs. Case, 10 Eng. Com. Law Rep. 226, and the same case in the House of Lords, 27 Eng. Com. Law Rep. 351, and Gilbert vs. Dennis, 3 Met. 495, I think the verdict below cannot be sustained. The note in this case was protested by Thomas Gadsden, Esq., Notary Public. He states in the protest that he exhibited the note “ at the residence of Edward Lynah, the drawer, and of James Lynah, the endorser, and in their absence left written notices directed to them, and demanding payment, the day of payment having expired.” On reading this statement, it is plain that the notary merely informed the endorser that the day of payment had expired, and that payment was expected from him. This was no notice that payment had been demanded from Edward Lynah, and that he had failed to pay. In Hartley vs. Case, the notice was, “ I am desired to apply to you for the payment of the sum of £150, due to myself on a draft drawn by Mr. Case on Mr. Case, which I hope you will, on receipt, discharge, to prevent the necessity of law proceedings, which otherwise will immediately take place.” In Solarte vs. Palmer, the notice was, “ a bill for £683, drawn by Mr. Joseph Reats upon Messrs. Daniel Jones & Co., and bearing your endorsement, has been put into our hands by Mr. J. R. Alzedo, with directions to take legal measures for the recovery thereof, unless immediately paid.” In Gilbert vs. Dennis, the notice was, “ I have a note signed by C. E. Bowers, and endorsed by you, for $700, which is due this day, and unpaid; payment is demanded of you.” These notices were all held to be insufficient; and on comparing them with Mr. Gadsden’s protest in this case, they seem to contain to the full as much as it did. I think, therefore, a new trial must be had; for, notwithstanding the case was tried by a most intelligent jury of merchants, and the question was submitted to them, whether, according to the usage and understanding of merchants, a demand of payment from the ei^Bfeer carried with it an implication that the bill had be^^Rviously dishonored, and they have found that it did, yet it is now plain that that question was a legal one, and ought to have been decided by the court. The motion for a new trial is granted.

Richardson, Evans, Butler, and Wardlaw, JJ., concurred.  