
    
      The survivors of Halls, Kirkpatrick & Co. vs. the Bank of the State of South Carolina.
    
    The plaintiffs were third indorsers of a promissory note, which the defendants, the Bank, had discounted. The note was protested for non-payment, and the plaintiffs took it up. They sued the two prior indorsers, and failing to recover, on the ground that no sufficient demand of payment of the maker by the Bank had been made, they brought this action against the Bank. Held that, if the plaintiffs were ignorant, when they took up the note, of the neglect of the Bank to make a proper demand of payment of the maker, they were entitled to recover — otherwise, if they were informed that no such demand had been made.
    
      Before Gantt, J. at Charleston, May Term, 1831.
    This was an action of assumpsit. The jury found the following special verdict.
    “ We find that a promissory note, endorsed by Arthur Howell, Thomas W. Howell, and Halls, Kirkpatrick Co. in the order in which they are mentioned, dated the tenth of May, 1823, and payable sixty days after date, for fifteen hundred and fifty dollars, was discounted at the Branch Bank in Columbia. The note, being unpaid at maturity, was placed in the hands of the Notary of the Bank for collection. The Notary, understanding that the maker of the note and the two first indorsers resided in the country in the neighborhood of Columbia, left in the post office a written demand of payment, addressed to the maker, and notices of non-payment, addressed to the two first indorsers. He also served on William Hall, one of the plaintiffs, the following notice — similar in form to those addressed to the two first indorsers: ! Branch of the Bank of the State of South Carolina; Columbia, May 10th, 1823. To Messrs, Halls, Kirkpatrick & Co. Gentlemen : You will please take notice that Matthew R. Howell’s note for fifteen hundred and fifty dollars, indorsed by Arthur Howell, Thomas W. Howell and yourselves, dated the seventh day of March, 1823, and payable on the ninth day of May, 1823, is unpaid, and has been placed in my hands for collection. Immediate payment is required. James S. Guignard, Bank Notary.’ The note being protested for non-payment, was paid and taken up by the plaintiffs, who immediately commenced suit against the maker and the two previous in-dorsers. They recovered a judgment against the maker, who is insolvent, and from whom nothing has been collected. In the actions against the previous indorsers, the plaintiffs were non-suited, on the ground that a proper demand had not been made on the maker, which ought to have been personal. On appeal the judgment of non-suit was affirmed ; and if, in the Opinion of the court, the demand by the Bank upon the drawer was a legal one, we find for the defendants. If not a legal one, we find for the plaintiffs fifteen hundred and fifty dollars, the amount of the note, with interest from the 9th of May, 1823, and costs of suit.”
    His Honor, the presiding Judge, ordered the postea to be delivered to the defendants: and the plaintiffs appealed, on the ground:
    That by the law and the facts of the case, they are entitled to the postea, and to be allowed to enter up judgment against the defendants for the amount of damages found by the jury.
    
      J. G. Holmes and King, for the motion.
    
      Petigru and Legare, contra.
   Curia, per

Johnson, J.

The case referred to in the special verdict, and which will be found reported in Harp. 426, is decisive that the plaintiffs, as indorsers, were discharged in law, by the neglect of theBank'to make a proper demand on the drawer of the note ; and I think it equally clear that, if that fact was concealed from plaintiffs, and they paid the note in ignorance of it, they are entitled to recover the money back. Garland vs. Salem Bank, 9 Mass. R. 408. But if, on the contrary, they paid the money knowing that no demand had been made, or that it was informal and irregular, then, on the clearest principles of common sense and common justice, they are not entitled to recover. From this view of the law, it follows that the liability of the defendants depends altogether on the fact, whether plaintiffs had notice that no demand, or an irregular and informal demand, had been made on the drawer, and on this fact the special verdict is silent. There are cases, I am aware, in which the court could infer circumstances in aid of a special verdict, but that can only be proper where the inference is a necessary and natural deduction from the facts ascertained. The facts ascertained here are, that plaintiffs were indorsers for Howell, and that they paid the money, and that no demand had been made on Howell. Now these circumstances would just as well authorize the deduction that they did not know that a demand had not been made as that they did know it: so that the court are wholly uninfoimed as to the most important and material fact which enters into the case. It is ordered, therefore, that a new trial be granted, to ascertain whether, at the time the plaintiffs paid the money to the Bank, they knew, or had notice, that no other demand than that set out in the special verdict had been made on Howell, the drawer of the note.

O’Neall, J. concurred.  