
    Pleasant Moon v. John Haynie.
    
      Tried before Mr. Justice Richardson, at Anderson— Fall Term, 1833.
    This was an action against the defendant as indor-ser of a promissory note, drawn by one Wm. Rhodes, PayaW® *° the defendant, and by him indorsed before due, to the plaintiff. The plaintiff did not provea demand on the drawer, and notice of non-payment to the defendant; but to dispense with such evidence, he shewed the insolvency of the drawer, at and about c^e ^‘me the note fell due; and besides, that the de-sent a message to the plaintiff that he (de-fendant) had taken back the land from Rhodes, for which the note was given, and that he had become Pa.vmaster f°r the amount to the plaintiff, but that he did not mean to pay it, as the property received for it was not as represented by the plaintiff.
    
      where the in-Swy aot?,™-drawer'”* sent'amessngefó ££ im ed wk'thTi'o" cessityot a de-SLr ™d no-ticc ^ non-pay-
    The presiding Judge held that it was incumbent on the plaintiff to shew a demand on the drawer, and notice to the defendant, and therefore ordered a nonsuit, which the plaintiff now moves to set aside.
   Harper, J.

We think the evidence was sufficient to shew that the defendant did dispense with the necessity .of a demand and notice. He was in conscience bound to do so. The note having been transferred before it was due, Rhodes, if he had been solvent, could not have defended himself against the payment of it, although he had retransferred to defendant the land for which it was given. From this liability the defendant was bound, in equity, to exonerate him, although as indorser merely, he had been discharged by the indorsee’s failure to demand it of the maker and give notice to him ; and very slight evidence would be sufficient to make out his agreement so to do. But the evidence, I think, is ample. He told the witness “that he had taken back the land for which Rhodes had given this note, and that he had become paymaster: that he did not mean, however, to pay it, as the property received for it was not as represented by the plaintiff.” What does this mean ? He had become paymaster — obviously that lie held himself liable to pay the note, unless he could defend himself on the ground of plaintiff’s misrepresentation of the property given for it. The defendant was liable in some way, independently of his undertaking as indorser. If Rhodes had been compelí-ed to pay the note, the defendant would have been able to him. The case must be remanded to the Circuit Court, that the proper judgment may be given.

Johnson & O’Neall, Js. concurred.  