
    The Cumberland Bank of Alleghany vs. M‘Kinley.
    An endorser cannot mfdiirain an action on a promissory note payaLne- to order j where the indorse j mentis iu bia«X*
    Appeal from Allegany county court. Assumpsit on a promissory note by the holder against the payee. The defendant, (now appellee) pleaded non assumpsit, arid the act of limitations. The writ issued on the 23th of October 1821. At the trial the plaintiffs produced in evidence the following note:
    “85,350. Allegany County, Dec. 28, 1819.
    Sixty days after date, I promise to pay Henry McKinley, hr order, five thousand three hundred and fifty dollars, for ialue received, negotiable and payable at The Cumberland Bank of Alleghany.
    
    
      James Kinkead J’
    
    Endorsed “Henry MHiinley, Joseph Carter.”
    They also offered in evidence a protest of the said rroic, inade on the 29th of February 1820. They then produced as a witness John M-Neill, who it was admitted was, on the 24th day of December 1819, and still was, a notary public of the state of Maryland, commissioned and duly qualified, residing in the town of Cumberland, and a competent witness in the cause; by whom the plaintiffs proved, that he the said John Mi Neill was acquainted with the hand writings of Jumes Kinkead; the drawer of the note, and Henry MlKinley and Joseph Carter, the endorsers, and had frequently seen them write; that he believed that the signatures of the said James Kinkead, as drawer, and Henry APKinley and Joseph Carter as endorsers of the note, were in the proper hand writing of the said drawer and «indorsers respectively; that the said John At*Neill, as notary public, on the 29ih day of February 1820, presented the note for payment at The Cumberland Bank of Alleghany ,■ and inquired for the said Janies Kinkead, for the purpose of demanding payment, who was not there; that he the sail! Janies Kinkead did not pay the said note, nor did Henry PTKiahy or Joseph Curler pay the same; and that he the said John Af* Neill did then, as notary public aforesaid, protest said note for nonpayment, as lsy the protest appeared. The plaintiffs farther proved by the same witness, that ever since his appointment as notary public, it was Ids uniform practice to give notice of nonpayment to endorsers, living out of Cumberland, by letters addressed to them by the next mail after the protest, to the post-offiss nearest tlie residence of the parties; that he believes that he never omitted to give regular notice in any case, and that he believed he gave such notice in this case, the defendant living at the time out of the town of Cumberland; but that he had no recollection of this transaction separate and distinct from the protést, and from his habit of doing business, and that his belief was founded merely on his habitual mode of doing business as notary, and his sense of duty to give notices. He further stated, that this was the first note ever protested by him. That on the day after, the protest in this case, he called on Matthew Wallace, the cashier of the bank, and told him the said Wallace, he need not give himself the trouble after that time of sending notices, for that he the witness would give notices in all cases'; and that from that conversation alone; he believes he obtained from Wallace, agent of the defendant, information of the place of residence of the defendant, but that he had no particular recollection of the fact; and that he had not then, and had hot how, any personal knowledge of the place of residence of the defendant. On this evidence the defendant prayed the court to direct the jury, that the plaintiffs were not entitled to recover, which direction the court, j'Buchanan, Ch. J. and T. Buchanan, A» J.] gave. The plaintiffs excepted; and the verdict andjudgihent being for the defendant, they appealed to this court
    Thecausewás aboútto beargued beforé Buchanan, Ch; «T; Earle, Martin, Stephen, and Arohe¿, J. by ■
    
      Jones and Speed, for the Appellants; and by
    
      Taney, for the Appellee;
    When it appearing that the endorsements oñ thé note Were in blank;
   The Court,

upon that ground only, without examining or deciding any other point in the cause, affirmed the judgment of the court below.

judgment affirmed. 
      
      
        ) Day, et al. vs. Lyon, ante 140; and Hudson vs. Goodwin, 5 Harr. and Johns. 115.
     