
    B. W. Morris et al. v. John Gardner.
    Notice to an indorser is necessary, unless he knew the maker to be insolvent' at the time of indorsement.
    Where the parties live within two miles of each other, nine days’ delay is fatal.
    A subsequent promise by the defendant to pay, made with a full knowledge of his discharge, will bind him.
    Assumpsit against the defendant as indorser of a note of Anderson; and for goods sold and delivered; and for money had and received ; and upon an assumpsit in writing to pay "seventy dollars for Anderson.
    The evidence was. that the defendant was indebted to the plaintiff for goods sold ; and gave and indorsed to the plaintiff Anderson’s note for a smaller amount than the debt due for the goods, which note was to be collected by plaintiff, and when received, the money was to be applied to the credit of the defendant. The note became payable 9 and 12 July, 1802. The plaintiff received on the 21st of July, forty dollars in part. No notice was given to the defendant of non-payment, until after thereceipt of the forty dollars. The defendant lived in Washington. The plaintiff’s agent, who held the note, lived in Georgetown. Afterwards, and after the note was payable, and after the payment of the forty dollars, to wit, at last term, the plaintiff recovered judgment against the defendant for the balance of the account of goods sold, after deducting the amount of the note. Gardner said, at the time of indorsing the note, that he expected it would be difficult to get the money of Anderson, but the plaintiff could get it better than he could.
    Upon the first count, (which is on the note,) the Court gave-the following instruction. That it is necessary for the plaintiff to prove that a demand was made on Anderson, the maker, and notice of his refusal given to Gardner, the indorser, in due time, unless it should appear that Anderson was insolvent when the note was indorsed and delivered to ihe plaintiff, and was known by Gardner to be so: That the defendant, Gardner, was discharged from his liability by the want of such demand and notice, but that his assumption would make him again liable, if made under a knowledge of the facts and of the law as to his being discharged : And further, that if the jury should be of opinion, from the evidence, that the defendant lived in the city of Washington, and the plaintiff’s agent in Georgetown, the distance being about two miles, notice to the defendant, given nine days after the last day of grace, was not reasonable notice.
   Verdict for plaintiff.

Queers. See DeBerdt v. Atkinson, 2 H. Bl. 336, and Nicholson v. Gouthit, 2 H. Bl. 609, as to the necessity of notice in case of kown insolvency.  