
    Knott, et als. vs. Hicks, et als.
    
    It is necessary to a recovery by the holder óf a note against an endorser to aver and prove demand and notice, and the want of such averment is not cured by verdict.
    A. Dale and E. Dale, under the style of A. Dale & Co., executed and delivered their promissory note for the sum of $1710 to L. H. Duncan, on the 19th of September, 1838, payable four months after date at the Planters’ Bank. Duncan endorsed and delivered it to Jesse Rainey, Jesse Rainey endorsed and delivered it to R. F. Knott, and R. F. Knott endorsed and delivered it to Hicks, Ewing & Co. When the note fell due it was protested for non-payment, but not according to law, and no notice given.
    Hicks, Ewing & Co. instituted an action of trespass on the case in the circuit court of Maury county, on the 19th of March, 1839, against the makers and endorsers of the note. At the May term, 1839, the plaintiffs filed their declaration, setting forth the note and the endorsements thereupon and the protest of the said note, but omitted to aver that the holders had given notice according to law to the endorsers of the demand and protest, or to set forth any excuse for failure so to do.
    The defendants pleaded “payment,” “set off,” and “no assignment.” At the succeeding term, the cause was submitted to a jury upon issues formed upon these pleas, and a verdict and judgment rendered for the plaintiffs for the amount of note and interest thereupon. The endorsers appealed in error.
    
      Dew, for plaintiffs in error.
    
      Pillow, for defendants in error.
   Turkey, J.

delivered the opinion of the court.

This is an action brought by the defendants in error against the plaintiffs, as the endorsers of a promissory note drawn by A. Dale & Co. The suit is brought jointly against the makers and endorsers. The making of the note, its endorsements and dishonor, are duly set forth in the declaration, but there is no averment of a notice of the dishonor having been given to the endorsers, nor any legal excuse assigned for not having done so.

This, it is admitted, is fatal, unless the defect be cured by verdict; that it is not, has been abundantly determined. See Chitty on Bills, 465, 2 Tidd’s Practice, Phil’d. Ed. of 1828, page 950, and the case of Slocum vs. Pomeroy, 6 Crunch, 221, where the question is directly determined by the supreme court of the United States. The judgment of the circuit court, will, therefore, be reversed.  