
    S. Wilson vs. A. Mullen.
    Where (be defendant indorsed a no(e, which was not negotiable, obiiging himself to pay it, if the drawer proved insolvent, or “to make it good,” all that can he required of the indorsee is that he should first use the ordinary means to get payment from the maker before he resorts to the indorser; The rules applicable to negotiable instruments do not apply.
    York Spring Term, 1825.
    The defendant assigned to the plaintiff a note given by one William Kerrs, and promised “ to make the same good if it was not,” or in other words to pay if the drawer proved insolvent. The note was not negotiable.
    The plaintiff sued Carr to the first ensuing court and got judgment at the second court, but gave no notice to Mullen until after the judgment against Kerr, which was nearly, or about, a year after the note became due. The court decreed against Mullen, for the note, and the costs of suit against Kerr.
    The defendant appealed.
    1st. Because the plaintiff gave no notice of non-payment by Kerr, which he was bound to do.
    2nd. Because he was not liable for the costs of the suit against Kerr; as he had no notice of the non-payment.
    
      Williams, for the motion
    Cited, 2 , Cord 399. Stockman vs. Riley. Indorser must have notice of the nonpayment of a note endorsed after due. (Park vs. Duke, Ibid. 380.) An endorser of a note under seal is not liable on his endorsement.
   Nott, J.

As the note in this case was not a negotiable one, the assignor would have incurred no liability by an assignment in the usual form. He appears to have been aware of that, by the form which he has adopted. He has therefore undertaken to use his own language “ to make it good;” which will admit of no other construction than that be intended to guarantee the solvency of the maker. All therefore that could be required of the indorsee was that he should first, use the ordinary means to get payment from the maker, before be should resort to the indorser. That he has certainly done. This is not analogous to the case of Stockman vs. Riley, 2 M‘Cord 398. That was a negotiable note. But this case is not governed by the rules applicable to negotiable instruments. The court are of opinion that the plaintiff used all the diligence that the nature of his contract required, and that the motion must beyefused.

Rogers, contra.

Williams for the motion.  