
    M‘Ilhenny, et al. vs. Jones.
    Notice to the endorsers, of the non payment of a promissory note, is not necessary, where they had endorsed the note after the daj of jtajinrnt liad elapsed, and whore an action had been brought on it in their names, for the use of the holder against the drawer, and such action was. by order of their attorney entered diseontinn<■(1, and the note taken out*
    • Atteal from Washington county court. Assumpsit on a promissory note by the endorsee against the payees. rPlea, non assumpsit. At the trial the plaintiff, (the appellee,) offered in evidence the promissory note declared upon, drawn on the 10th of November 1817, by George licltzhodver, for S1Q5 39, and payable, 30 days after date, to the defendants, (the appellants,) or order, and by them endorsed, on 8d of June 1818, to the plaintiff'. The making of the note, and the endorsement by the defendants, were proved. The plaintiff' also offered in evidence a record of an action brought on a note of the same date, for the same amount, &c. on the 28th of April 1819, in the names of the present defendants, and endorsed for the use of Jones and Moades, against the drawer of the note; which action was, by order of the plaintiffs by their attorney, entered discontinued in March 1820/and the note, which had been filed, was taken out. The defendants then offered in evidence, that the maker of the note, at the time of the endorsement, and passing of the same by the defendants, lived near Hager’s-Town, and that the plaintiff then was in Hager’’s-Town, and continued there for two or three weeks after, and that they endorsed the note in payment for goods purchased by them of the plaintiff; and on this evidence prayed the court to direct the jury, that the plaintiff was not entitled to recover. The court, (Buchanan, Ch. J. and T. Buchanan, A. J.] refused to give the direction. The defendants excepted, and the verdict and judgment being against them, they appealed to this court.
    
      The cause was argued at June term last before Earle, Martin, Dorsey, and Stephen, J.
    
      Ridout, for the Appellant, contended,
    i. That due diligence was not used by the plaintiff below, to obtain payment from the drawer of the note, on which the action was brought, before instituting suit against the endorsors.
    2. That notice was not given to the defendants of the failure of the drawer to pay the note.
    
      R. Johnsori, for the Appellee,
    contended, that as a suit had been brought by the defendants on the 28th of April 1819, against the drawer, on the very note which no doubt was left in their hands by the plaintiff for Collection, they could not deny their having notice that the money had not been paid. They struck off their action, which was entered for the use of Jones. There was lio necessity, therefore, to prove that they had notice of the nonpayment of the note by the drawer. The prayer made to the court below, by the defendants, was general, that the plaintiff was not entitled to recover, which the court very properly refused to grant. There Was no evidence that the plaintiff received the noté in payment of the goods purchased of him by the defendants. The taking a note is no evidence of payment* unless it is so expressed. Whitbeck vs. Van Ness, 11 Johns. Rep. 409. Whether or notit was received as payment, was a fact to be left to the jury. Johnson vs. Weed, 9 Johns. Rep. 310. Chitty on Bills, 118, (note.) Where a note is endorsed after it is due, the endorsor becomes the maker. Clark vs. Young, 1 Cranch, 192. It is fair to infer, that when the note was endorsed the payees knew that the drawer would not pay. Notice to them therefore was not nécessary that he did not pay when called on.
    Ridout, in reply.
    It does not appear that the defendants had any thing to do with the suit which was brought against the drawer. It was entered for the use of Jones. The note too had been endorsed by them, and the action could not be supported in their names. It was the suit of Jones erroneously brought, and therefore his counsel dismissed it. There is no evidence that it was the same note upon which the present action is brought. There might 1>e several notes of the same date, and of the same amount, &c. Thé noté being endorsed, after it was due, makes it in one respect different from other notés, that is, that thé holder could not look to the endorsors without proof of thé insolvency Of the drawer. If the endorsor is considered as drawer* hé has not been sued ds drawer. As between the endorsor and endorsed, it stands in the same situation as dll other notes. Chitty, 141. If as drawer, he is entitled to notice, Mutford vs. Walcot, 1 Ld. Raym. 575. Chalmers vs. Laniow, 1 Campb. 383. This was the assignment of a noté ih payment of a debt. The sanie cáré and attention is therefore required* to'make the assignor liable, ds in all cásés of promissory notes endorsed. If the noté was accepted as- conditional payment, still the same strictness is necessary to bind thé assignor. Chitty, 157. Té Show that the same dégréé of diligence is necessary where a note is hot regülarly endorsed* of is not regularly a bill of exchange, he referred to Chamberlyn vs. Delarive, 2 Wils. 353. Moore vs. Warren, 1 Stra. 415. Turner vs. Mead, Ibid 416. Ward vs. Evans, 2 Ld. Raym. 928. Tobey vs. Barber, 5 Johns. Rep. 68, 72. Chitty, 118, (note K.) Clark vs. Young, 1 Cranch, 192.
    
      Curia adv. vult
    
   At this terni

JUDGMENT AFFIRMED J  