
    
      William W. Gray vs. James P. Bell.
    
    What is reasonable time in making demand and giving notice, where anote is past due when indorsed, must always be left, as a question of fact, to the jury.
    An action against the maker to the first term after the indorsement, is a sufficient demand, and if the indorser knows of the action within a reasonable time, it is sufficient notice.
    On the 11th October, a note, then past due, was indorsed by the defendant to the plaintiff, and on the 20th February after, the plaintiff sued the drawer and indorser by separate writs. The note was negotiated in Sumter District, and the drawer and indorser lived within a few miles of the place where it .was negotiated, — the plaintiff being a resident of North Carolina. Without further proof of demand and notice, the case was submitted to the jury, who found for the plaintiff Verdict sustained.
    
      Before O’Neall, J. at Sumter, Spring Term, 1846.
    This ease will be found reported in 2 Rich. 67. The report of the second trial, by his Honor, the presiding Judge, is as follows :
    “This was an action of assumpsit brought by the plaintiff on the indorsement of a note after due, made by R. R. Spann, and payable to the defendant or bearer.
    It appeared that the note was made 27th December, 1842, due three months after date, which, with the days of grace, would make it payable the 30th of March, 1843. About the time the note was due, the defendant traded it off in Charleston for merchandize, but before the goods were sent to him, the person to whom he had traded it declined to keep it, and refused to deliver the goods. The defendant got Mr. Ballard, who was going to the city, to call for the note, which he did, and the holder not being at home when he called, he left his address, and received the note inclosed in a letter. On his return hometoProv-idence, he opened the letter and handed the note to the defendant, who, either then or immediately after, requested him to take the note and trade it off, and for so doing, agreed to give him fifty dollars. Bell had indorsed the note, when he sold it in Charleston ; his name still remained upon the note; and Ballard traded the note to the plaintiff for a wagon and gear, which he said was of the value of the note, two hundred and fifty dollars. It was abundantly proved that the consideration of the note was gaming.,
    Spann was insolvent at the time the note was traded. Spann and Bell lived iu a few miles of Providence, where the note was traded. When it was traded, Spann was from home, probably in the west, and the plaintiff was so told by Ballard. Spann’s family were, however, at home. Spann has a large property in his hands, settled on his wife. The note was traded to the plaintiff, on 11th October, 1843 ; he sued Spann and the defendant, by separate writs, on the 20th February, 1844, and recovered judgment against Spann, at Fall term, 1844. Execution was lodged 26th October, and returned nulla bona.
    
    There were counts on the note against the defendant, as maker, indorser, and as the drawer of a bill of exchange.
    The defendant moved for a non-suit, on various grounds, which are set out in his grounds of appeal. I overruled the motion, and the case went to the jury, who were instructed that the defendant was liable if the plaintiff had used due diligence in enforcing payment. That, I told them, was a question for them. That to me it seemed enough, in a note negotiated after due, if the plaintiff had sued to the first term the maker, and the defendant knew of such suit. In this case, being sued himself, it might be that that would be evidence enough to satisfy them that he knew the maker had failed to pay on demand, and if so, that was enough.
    The jury found for the plaintiff.”
    The defendant appealed, and now moved for a non-suit or new trial, on the following grounds :
    1. Because there was no proof of any diligence at all before the action was commenced against the defendant.
    
      2. Because the proceedings- against Spann were not sufficient evidence of demand and refusal. 1st. Because the service of a writ in assumpsit is not, in any case, a suffix cient presentment and demand. 2d. Because, in this case, the writ was served on Spann after the action against the defendant was commenced.
    3. Because the action against the defendant was notsuf-cient notice of presentment and demand. 1st. Because the service of a writ in assumpsit is not,' in any case, a sufficient notice of presentment and demand. 2d. Because the action against the defendant was commenced before the writ was served on Spann.
    4. Because his Honor ruled, and so charged the jury, that there was no necessity to prove a demand before action commenced against the defendant; that the action against the defendant was, of itself, sufficient evidence of notice ; and that the actions against the defendant and Spann, commenced at the same time, were sufficient evidence of demand and notice.
    
      J /S. G. Richardson, for the motion.
    
      J. M. DeJSaussure, contra.
   Cwia, per

O’Neall, J.

The former decision in this case settled. that, on the indorsement of a note negotiated after due, the question of reasonable diligence in making a demand of payment from the maker, and giving notice of such demand to the indorser, was one of fact, and ‘‘ must always be left to the jury.” It would be enough to say, in answer to the motion for non-suit, there was some evidence of both demand and notice — enough, it seemed, to satisfy the jury of both facts. ' So, too,, the motion for a new trial might be answered, by saying that the question of diligence was, in exact conformity to the decision of the Court of Appeals, previously made in this case, left to the jury. But it is perhaps due to the learned counsel for the motion, and to his ingenious argument, that the case should be a little more fully considered.

According to our cases of Eccles vs. Ballard, 2 McC. 388 ; Barrett vs. May, 2 Bail. 1 ; Benton vs. Gibson, 1 Hill, 56, the indorser of a note after due, is to be regarded either as the guarantor of its payment, or as the drawer of a new bill. Both stand upon the same principles, and it is hardly necessary to distinguish in what precise character he is to be charged. I am, however, prepared to go much farther, and to hold that the indorser of a note negotiated after due, is to be regarded either as a new maker, or as the drawer of a bill on a man without funds, (the maker who has failed to pay) in neither of which cases is a demand of payment or notice at all necessary. But a majority of the court is not as yet prepared to go so far.

The rule stated in Benton vs. Gibson, that there must be a demand of payment from the maker, and notice to the indorser, either actual or constructive, within a reasonable time, in order to make the indorser of a note, negotiated after due, liable, received the sanction of this court in Chadwick vs. Jeffers, 1 Rich. 397 ; and also in this very case when it was before this court at a former term.

In Benton vs. Gibson and Chadwick vs. Jeffers, it was very properly held, that an action at law against the maker, was, itself, a sufficient demand of payment from the maker and if brought in reasonable time, and the indorser knew of the institution of the action, either at its commencement or immediately after it, it would be enough to charge hi m. In this case the action was brought to the first term after the indorsement. That was certainly in reasonable time, and if the indorser had been sued the next day after the institution of that action, it seems to be conceded that it might have furnished sufficient evidence of demand and notice, to have justified the jury in finding both. For then it is said that the jury might have inferred, in the lapse of a day, that the indorser might have been informed of the action against the maker. But where the actions against the maker and indorser are simultaneously commenced, it is supposed that there can be no inference of knowledge of demand and non-payment before suit against him. But I do not perceive the difficulty. The actions against the maker and indorser carry with them the presumption of previous defaults in both. This might justify the jury, in a case like the present, in concluding that there had been a demand of payment, and notice before suit brought. But one writ must be lodged before the other — it may be, and the jury might conclude, that it was the writ against the maker which was first lodged, and then, in the same instant of time, the indorser was informed before the writ against him was lodged. But I regard the actions against the maker and indorser, as constructive demand and notice. They are exactly like the case of an action on a note payable on demand; the writ is regarded as the demand, and as having constructively that effect to precede and support the action.

In this case, the maker and indorser lived within a very short distance of one another ; and that fact, with the institution of the suits, might, although slight evidence (if the actions have not the constructive effect which I have suggested) justify the jury in finding demand and notice. In a case where the justice is so manifestly with the plaintiff, the court will, even upon very slight evidence, sustain the verdict.

The motions are dismissed.

Evans, Wardlaw and Frost, JJ. concurred.

Richardson and Butler, JJ. absent at the argument.  