
    John Butler vs. Benajah Denham.
    ÍThe endorser of a note is discharged, if notice of non payment by the drawer is not given, or if a demand be not made on the drawer, although the note be drawn in the name of a firm which is dissolved.
    Tried at Greenville, Spring Term, 1823.
    THE action was assumpsit on five negotiable notes of hand brought by the plaintiff as endorsee against the defendant as endorser. The notes drawn in the spring and summer of 1821, bj John Davidson, in the name of Elijah Davidson <§* Co. of which firm he said he was a partner, payable to the defendant, severally became due cs follows, vi a: 1st on the 24th May, 1821; 2nd on the 19th June, 1821 ; 3rd on the 30th June, 1821; 4th on the 19th August, 1821 ; and 5th on the 5th September, 1821. They were endorsed about the last of July or the first of August, 1821; three of them being then due and Iwo not due. The plaintiff was then a workman in the defendants factory, at Greenville court house, where the notes were given; knew that they were given by John Davidson, with whom he was as well acquainted as the defendant was, and knew that he lived in Pendleton district and was a pedlar. The firm of Elijah Davidson 8? Co. was proved to have existed before the notes were drawn ; that John Davidson was a partner, and that they had a store in Pendleton district. The plaintiff never demand 2d payment of Elijah Davidson Co. or of John Davidson ; nor did ho make any effort to present the notes for payment. About the 10th of February, 1823, his attorney, (not having the notes vwih him,) made some enquiiy eoncerning the Davidsons at Pickeusville, and was told they had failed. I11 the same month, however, anoilve demand against the firm was secured, and their bool-.s of accounts were then at their store. In October, 1321, John Davidson passed through Pendleton with a drove of beef cattle for market, and then lived in Haj wood, N. C. It was proved that about two years ago, there was a notice on the store door of Elijah Davidson fy Co. signed by Elijah Davidson, that the partnership was dissolved, but there was no notice in the gazette, nor any proof that the defendant knew of it.
    His honor charged the jury that the plaintiff had not used sufficient diligence to demand payment of - any of tire notes, and therefore could not recover, provided Elijah Davidson fy Co. were really liable on the notes, but if the partnership were really dissolved, and the notice on the store door was evidence of that fact, then they were not liable to pay the notes, and the defendant was bound for them without either demand or notice. The jury found a verdict for the plaintiff. The defendant moved for a new trial on the grounds,
    1st. That the firm of Elijah Davidson 8? Co. was liable to pay the notes, notice of a dissolution on the store not being sufficient, and his honor should have so charged, the jury.
    2nd. That the notes ought to have been presented to them for payment, whether the partnership was dissolved or not, and whether they were legally bound or not,
    3rd. That in any view, John Davidson was liable, and •a demand ought to have been made of him before recourse was had to the endorser.
   Mr. .Instice TIugsr

delivered the opinion of the court *

Choice, for the motioh.

Earle, contra.

In this case, it is unnecessary to enquire whether the c6partnership of Davidson 4' Co. had been dissolved or not,Dttviciiim■ himself drew the notes and was bound by them, whether the copartnership existed or not. They were given for valuable consideration, and the endoi’ser has not been implicated directly or indirectly in 'the misconduct imputed to Davidson; as a bona fide payee he was entitled to all the rules which require a demand upon the drawer find notice to endorser. A new trial must then be granted.

Justices Colcock, Noll and Richardson, concurred.  