
    Shirtliffe and Austin against Gilbert and John Davidson.
    The holder hand,n°whof payment*5 f<to the drawer, himself; and shall not recover against
    ASSUMPSIT against the defendants, as indorsers of a note of hand for 571. 10.?. sterling. The note was one of ^°3£ known by the name of accommodation notes, drawn by J}f0ses Sarzedas. in favour of the defendants, who indorsed it in order to give it credit for the use of Sarzedas. It . , . afterwards came into the hands of the plaintiffs, who lodged it in the South-Carolina Bank for collection ; but not being paid, it was, on the expiration of the third day of grace, put into the hands of John Mitchell, as a notary, to be protested, who-called on Sarzedas with it. That Sarzedas requested of him, the notary, to wait on the plaintiffs and beg a few days indulgence, as he said he did not wish the defendants, who indorsed the note for his accommodation, should be called on for the money ; which he, the notary did, and they agreed to give him some days for that purpose. That, however, the money not being paid in the time proposed, the notary protested the bill against Sarzedas, the drawer, who had in the mean time become a bankrupt ; and then he went to the defendants, as indorsers, who refused to take it up, alleging that they would not then have any thing to say to it; upon which the note was protested against them as indorsers.
    Mitchell, the notary, proved the foregoing facts, as related to him in the business 5 and he said, although Sarzedas told him he did not wish his indorsers called on j yet, before he called on the plaintiffs to ask for the indulgence, he called on the defendants to ask their permission to apply for a few days indulgence, but they then said they would have nothing to do with it» Sarzedas himself, proved, that from the time he was first called upon by the notary with the note, until he was obliged to declare himself a bankrupt, he paid upwards of 1,000/. to relieve those who had indorsed notes for him 5 and had the plaintiffs not given the indulgence before mentioned, he certainly would have paid the amount, rather than the defendants should have suffered for their friendly act towards him. That he understood the note came into their hands for money advanced or loaned, at the rate oí five per cent, per month ; and therefore, of the two parties, he chose that they should suffer, rather than the innocent indorsers.
    Rutledge, for the defendants,
    relied on the general law of merchants, that where due diligence was not used against the drawer, the indorser is not liable; but particularly on Tindal v. Brown, (1 Durn. East, 137.) that wherever the holder gives a new credit or time for payment to the drawer, the indorser is exonerated. Also on the case of Scarborough Cook v. Harris, ante°
   The Court

unanimously of opinion, that the plaintiffs ought not to recover, and she jury returned a verdict accordingly.  