
    *Hansbrough v. Gray.
    October Term, 1848,
    Richmond..
    (Absént Brookio, J.)
    i. Promissory Notes — Accommodation Maker — Failure to Protest anti Give Notice — Effect.—The maker of a note for the accommodation of the payee, is not released by the failure to protest the note and give him notice; though it is known to the holder that he is an accommodation maker of the note,
    a. Same — Same—Failure of Holder to Collect until Payee Insolvent- Effect. — in such a case, the maker of the note is not discharged by the omission of the holder to enforce the collection thereof, until the payee, for whose accommodation the note was made, becomes insolvent; though the holder had looked to the payee for payment.
    Assumpsit brought in the Circuit Superior Court of Culpeper, in July 1832, by Gray against Hansbrough, on a note, dated the 21st September 1827, for 500 dollars, negotiable and payable at the Bank of the Valley at Beesburg, ninety days after date, for value received, made by Hansbrough to one Carr, and by Carr assigned and guarantied by writing under seal, to the plaintiff Gray, instead of being endorsed to him according to mercantile usage. Plea, non assumpsit. At the trial, the plaintiff demurred to the defendant’s evidence as being insufficient to support the negative of the issue: that the defendant had not assumed.
    The demurrer to evidence set forth, 1st, The evidence on the part of the plaintiff, which consisted of the note described in the declaration, made by Hansbrough to Carr, whereon were endorsed two credits for moneys paid by Carr, 182 dollars on the 24th March 1828, and 90 dollars 20 cents on the 3d June 1828; of the assignment and guarantee of the note by Carr to Gray, by instrument under seal, bearing even date with the note, in these words: ‘ Por value received I assign the within note to J. Gray, and hereby guarantee that the amount thereof shall be paid .to the said Gray or *his order within six months from the date hereof: and to the said payment I hereby bind myself and my heirs: said Gray is not to bring suit on this note under six months from this date. Witness my hand and seal, this 21 September 1827, Sam. Carr, (Seal,)” — and of the deposition of the cashier of the Bank of the Valley at Beesburg, that the note was deposited at the bank for collection by Gray, and was in bank at the time it came to maturity; that there was no formal demand of payment made; that the contents of the note were not paid; nor had Hansbrough, the maker, any funds at bank to pay the same, when the note came to maturity; that no protest for nonpayment was made, and no notice of dishonour was given to the maker, because, as to the maker, protest and notice of dishonour was unnecessary, and the peculiar form of Carr’s assignment and guarantee of the note, rendered such proceedings unnecessary as to him also. And here the plaintiff rested his case.
    The demurrer then set forth, 2dly, the evidence adduced for the defendant, consisting of the depositions and testimony of several witnesses, whereby the following facts were proved: That the note was made by Hansbrough to Carr, for the accommodation of Carr, and in order that Carr might get it discounted at the bank for his accommodation, so that Carr, as between Hans-brough and him, was the person who was to see to the payment of the contents at the maturity of the note: that the character and purpose of the note was known to Gray, when he took the transfer and guarantee thereof, in the manner above mentioned, from Carr: that Gray accordingly looked to Carr for payment, and had it in his power, for above a year, during which Carr continued solvent, to enforce the payment from Carr, but out of indulgence to Carr, wil-fully" forbore to do so: that it was at Carr’s instance, and on his promise to pay the contents of the note, that Gray forbore *to have it protested for nonpayment: that no notice of the note still remaining unpaid was ever given to Hansbrough, till after Carr had become insolvent: that there was a positive understanding between Gray and Carr, when Gray received the note from him, that Gray should look to Carr for payment, not to Hansbrough, and Gray himself thought that, under the circumstances, Hansbrough was not bound to pay the money.
    And this being all the evidence, the jury having found a verdict for the plaintiff, subject to the opinion of the Court upon the demurrer to evidence, the Court gave judgment on the demurrer for the plaintiff. From this judgment, Hansbrough applied to this Court for a supersedeas, which was allowed.
    Leigh, for the appellant, and
    Cooke, for the appellee, submitted the case.
    
      
      See monographic note on “Bills. Notes and Checks” appended to Archer v. Ward, S Gratt. 622.
    
   By the Court.

Affirm the judgment.  