
    Benjamin Moodie against John Morrall.
    A protected note Í3 made inCharleston, ana endorsed andpayablethere. ^hiheotKsedlif aft tile endorser, when quired for drawer and endorser, and both being th™díb*e7,’fea“a left notice and dorser; and this T.-ashewsufficiem to charge him. aShhepialEtLjldS“! Xged.reby dli
    at Coosawhatchie, in April Term, 1813. This case was tried before Mr. Justice Grimke, '
    . fl his was an action of assumpsit on two notes of hand, both dated at Charleston, 14th March, _ in 1804; the lirst, payable for 2092 dollars 50 cents, 60 days after date; the other, for 0277 dollars 50 cents,-payable 1 May, 1805, and endorsed by defendant, Mr. Morrall. The first note was protested by George Reid, notary public, on May, 1804, who called at the maker’s house, in J Charleston, where the endorser, Mr. Morrall, lodged when in town, and presented the note to Mrs. Alls ton, who gave for answer that Mr. Albion, the maker, and Mr. Morrall, the endorser, were both out of town, and that she could-not pay the note; whereupon a copy of the protest was left for the endorser. The second note, for 6277 dollars 50 cents, was protested by George Reid, the notary, on 4th May, 1805, who demanded payment of the endorser, Mr. Morrall himself, at Mr. Albion’s, who Was out of town, (and for whom a written notice was left,) but the endorser refused p.ayment. Whereupon actions were brought in Beaufort District, both against the drawer and endorser.
    On the 30th May, 1805, the holder of these notes, Mr. Moodie, the plaintiff, took a confession of judgment from the maker of the notes, Mr. Allston, for the whole amount of both notes; to wit, for the sum of 4079 dollars 9J cents, payable ¶ _ t i . -Mth March, 1806, and the residue payable the March, 1807. The suit still went on against the endorser, Mr. Morrall, for the whole amount of both notes. At the trial before Mr. Justice Grimícé, an objection was taken for the want of due notice of non-payment by the maker, to the endorser, but overruled by the Judge, who was of opinion the notice was sufficient. It was then contended, that the indulgence given by the holder to the maker of these notes, and taking a confession of judgment in manner above mentioned, exonerated and discharged the endorser. And of this opinion was the J udge who tried the cause; and the Jury found for the defendant accordingly.
    This is, therefore, a motion for a new trial, on the grounds, 1st. That the notice of non-payment by the drawer was not legal. 2d. That the giving day to the maker, and taking the confession of judgment, did not exonerate the endorser.
   Bay, J.

delivered the opinion of the Court.

I have considered this first ground, and have no hesitation in saying, that in my opinion the notice was sufficient of the non-payment by the drawer, to the endorser. Charleston being the place where the note was drawn and endorsed, shall be presumed to be the residence of both for every mercantile purpose; and the use bf due diligence to find out either of them there, will answer the demands of the law upon this subject, it would be a monstrous and embarrassment to commerce, if the holder of a bill or a note was obliged to travel all over the world, to find out the drawer or endorse!*, In order to give' him notice of the'non-payment. 1 take it, therefore, to be a well established rule of mercantile law at this day, that the use of due diligence in the place or city where the bill is drawn, to find out either drawer or endorser, is all that is requisite. The cases cited from Chitty on Bills, 168 — 1 Johnson, 294 — and 2 New- York Term Rep. 129 — are full to this point. In the present instance, Mr. Reid, the notary, proved that, after the time for payment of the first note expired, he called at the house of Mr. Mision, the maker, where Mr. Morrall, the endorser, usually resided when in town, and inquired for both maker and endorser, of the wife of the maker, and demanded payment of the note, who refused payment, but informed the notary they were both out of town. Whereupon he, the notary, left a copy of the protest at Mr. Alistads house for Mr. Morrall, the endorser. This, in my opinion, is coming up not only to the rule laid down in the above cases, but is going a great deal further, and shows that every possible diligence was used which the nature of the case could admit of; and that reasonable notice was actually left for the endorsees' in the most proper train imaginable for its duly . reaching his hands.

With respect to the second ground, of giving day to the maker of the note, and taking a new security, I have no doubt, from the best view I can take of the subject, that it exonerated and discharged the endorser, as it had an evident tendency to put off to a distant and remote period the payment of the money he was so highly interested in seeing speedily discharged. It is scarcely to be presumed that any man would be so incautious and unwise as to endorse a note or bill unless he believed that the maker was able to take it up and pay the amount immediately, upon a failure of payment or acceptance; and unless he believed also that the holder would lose no time in his endeavours to recover without loss of time from the maker, in case of nonpayment. Any delay, therefore, on’the part of the holder, in his attempts to recover against the principal, is an injury done to the endorser as a collateral undertaker, and • lessens hi& chance of indemnity; for these reasons, the law enjoins great punctuality and diligence on the part of every holder of a bill or note. Hence it results, that every indulgence given by such holder, by giving further day, or taking a new .security, releases the endorser.

In our own Courts it has been determined so early as the year 1791,(1 Bay, 176,) that giving new credit, or giving time to the maker, exonerates the endorser. This decision was bottomed upon the authority of Tindall vs. Brown — 1 Durnf. and East, 167 — where it was held, that if the holder gives time to the accepter oí a bill or drawer oí a note, after it has been dishonoured, the endor- . . ser is discharged. Late .authorities have confirmed this position. In 2 Henry Black. Reports, 163, it is said, where time is given, and security taken by the holder of a note, it discharges the endorser. And the question in this, and in every other similar case, is not, whether the endorser is benefited or not, but whether time is given, and a new security taken ór not ?

Where time is ‘or jSfdiScLr|™ XiiSSndthé terms on which it “ot'

This doctrine appears to have been confirmed by a great variety of authorities. Chitty on Bills, 619 ; 8 East's Rep. 576; 3 Bos. & Puller, 362; and 3 Esp. Rep. 46 and 49; and many other authorities.

The case under consideration is a remarkable one. Instead of taking a new bill for the speedy payment of the money, or any other' security likely to be fulfilled in a short period, which might in some cases have been some kind of excuse for a reasonable delay, twelve months are given for payment of part of the debt by the holder, and two years for the residue. This appears to me to be so much out of the line of all mercantile transactions, as totally to have exonerated the endorser from all responsibility.

Charleston,

May, 1817.

Hayne, for the motion.

T. S. Grimke, contra.

I am therefore of opinion, that the verdict of the Jury should remain at rest, and that there should be no new trial.

The other Judges concurred.  