
    Ward against Gifford.
    
      May, 1820.
    
    In- assumpsit by dorsertiheCourt must,¡f required, “noticeTnd fusai be not proved.
    ASSUMPSIT in the Circuit Court of Mobile county by Gif-ford v. Ward, on a promissory note of Butler to defendant, endorsed by him .to Edgar, and by Edgar to plaintiff. General issue — On the trial plaintiff failing to prove non-payment.and notice to defendant, he moved the Court for a non-suit. Motion over-ruled; .to which defendant excepts, &c. and assigns this matter here as error.
   By the Court.

Independent of the statute, the Court below was not bound or authorized to order a nonsuit, but should have instructed the jury, that without such proof the plaintiff could not recover. The act of 1807, Laws Ala. p. 68, s. 4, directs, that if any suit shall be brought on any such order before notice and refusal to pay, the plaintiff shall be nonsuited and pay costs. The act of 1812, Laws Ala. p. 69, gives to the assignee of a promissory note, «Sic. an action against the indorser, as in cases of inland bills of exchange. The Court below erred in refusing to order a nonsuit.

Let the judgment be reversed.  