
    DURNFORD vs. JOHNSON.
    An ineffec tual attempt to present the note to the maker, does not suffice to charge the indorser.
    This was a suit against the indorser of a promissory note. The maker, at the time it was given, resided in New-Orleans, from whence the note bore date. Before it became due, he went to Europe, and on his return went to reside, with his wife's mother, in the county of the German Coast.
    The note, which was deposited in the bank for collection, was, on the last day of grace, handed to a notary, with a charge to be strict in making the protest. He accordingly went to the ferry, in order to cross the. river-but was told the-wind was too high to admit of his going over, whereupon he rode a conside rable distance up the river with out being able to cross, and was informe dit would be in vain to go higher, as no craft were to be had. This being late on Saturday, he declined proceeding farther: the next day he returned home, and on Monday morning made a protest in his office, and gave notice to the indorser.
    There was not any evidence, of any other call, or of any demand, on the maker.
    On this,
    Hennen, for the defendant,
    prayed for a non-suit, and the court intimating an opinion that the plaintiff had no made out his case, and ought to be non-suited-Depeyster and Porter, for the plaintiff, declined to submit to a non-suit
    Hennen objected to the note and protest going to the jury.
   By the Court.

The plaintiff having the right, notwithstanding the opinion of the Court, to put his case to the jury, it follows that the jury must have all the writings which have been properly offered to them.

The Court charge the jury, that the indorser, being only liable on the default of the maker, the biter, ought to be called upon before the former was resorted to, and that the plaintiff having neglected to do so, was not entitled to their verdict.

The jury could not, however, agree upon a verdict; and one of there was withdrawn by consent. See 1 Gould's Expinasse, 96-7-8, and the cases there cited.

Duncan, Brackenridge, and Gales, for the motions.

Robertson, Dick, and Wilson, contra.  