
    John Sharpe, Endorsee, against Edward Bingley.
    In ease of a protested note, .the' notary who made the protest being dead, his clerk, from an entry made by the notary in his record book, testified that he had given notice to the endorser, though the clerk would not otherwise have recollected the fact; held to be sufficient evidence, under the circumstances.
    The holder of the note having received partial payments from the mákeiV and given him indulgences from time to time, with a promise to him-not to call on the endorser for actual payment unless the drawer should become in-sol vent, was evidence of a new credit to the drawer, and operated to discharger the endorser.
    This was an action of assumpsit against an endorser of a note of hand, tried before Mr. Justice Colcock, in May Term, 1814.
    The defence in this case was laches in not giving due notice of this non-payment of the note to the endorser: and afterwards giving time to the drawer to pay the money, and receiving partial payments from him, with promise not to look to the endorser, till the drawer became insolvent. The evidence of notice was the clerk of the notary, who protested the note, (then deceased :) he produced the hook in which the proceedings of the notary was recorded, and swore that from the proceedings in that hook, and the habits of. the notary’s office in setting down the initials of the names of the clerks by whom notices were served, he was certain he must have served the defendant with notice of the non-payment, or left it at his place of residence, hut had not at first any recollection in his mind of the .circumstance; hut after looking at the hook attentively, he said he could undertake to swear that he had served the notice. This was deemed by the presiding Judge sufficient notice to the endorser of non-payment.
    It afterwards appeared, from the testimony of the drawer, who had become insolvent, and taken the benefit of the insolvent act, and who had been released by the defendant, that after this note had fallen due he made a payment to the plaintiff, who then gave him further time to pay the balance, and promised not to call upon the endorser; that he made him a second payment about twelve months after, and that in consequence thereof tire plaintiff did not call upon the endorser till near four years thereafter, when in the mean time he had become insolvent. When the testimony closed, the presiding Judge charged the Jury, that after the endorser had been fixed by due notice, which had been done in the present instance, a new credit by the holder to the drawer, or partial payments after-wards, would not exonerate the endorser from his liability, and that the promise to the drawer not to call upon the endorser, was not a release or discharge from the holder. The Jury, therefore, found for the plaintiff the balance of the note, after deducting the partial payment, with interest. This is, therefore, a motion for a new trial, on the grounds: 1st. That there was no legal proof of notice to the endorser of non-payment of the note. 2d. For misdirection in charging the Jury, that giving a new credit to the drawer, and receiving partial payments from him, with a promise not to call upon the endorser,did not exonerate the endorser,after having been fixed for the payment.
    Charleston,
    May, 1817.
   Bay, J.

delivered the opinion of the Court.

1st. Upon this first ground I am of opinion, that the same principles which were laid down in Moodie and Morrall's ease will apply in present one; and that the presiding Judge very properly decided, that the notice proved by the clerk of the notary, (who had lately departed this life,) was good and legal notice.

2d. Upon the second ground I am obliged to differ from him in opinion, and am inclined to think he has laid down the law too rigidly against endorsers in the present instance. The same grounds were taken exactly in the case of Moodie and Morrall which have been taken here, and the opinion of the majority of the Court in that case was, that giving day for payment, and taking a new security, exonerated the endorser; and in the present case, giving a new credit for near four years, till the drawer became insolvent, and receiving two partial payments from the drawer, with a promise not to look to the endorser, completely exonerated the defendant. Nay, I am induced to believe, that this is still a stronger CQ.se than the other, in favour of the endorser; for here there was an express engagement on the part of the holder, in consideration of the partial payments, not to look to the endorser; and I would beg leave to ask, is there any good reason to say that a man shall not be bound by his contract in a case of this kind as well as in every other case of contract ? I con-, fess I cari see none. There is still a further ground in this case, which did not appear in the case of Moodie and Morrall; and that is, that the holder in this case received two partial payments, at more than the. distance of twelve months from each other, which was taking upon himself to give the whole credit to the drawer of the note. In 2d. Sir. 745, it is laid down that if a part of a note is received of the drawer, it is giving the whole credit to the drawer, and absolutely discharges the endorser; so that he cannot be resorted to for the rest. The same doctrine is laid down in 1 Will. 48; that is, if the endorser receives part of the money upon a note of the drawer, he takes upon himself to give, credit for the whole to the drawer, and it discharges the endorser absolutely. This last ground, however, appears to be doubtful; for although the authorities therein referred to are express and positive, yet later authorities lay down the law otherwise; and that receipt of part from the drawer will not exonerate the endorser when no further day is given for payment. For all these reasons, Í am of opinion, that the verdict should be set aside, and a new trial granted.

Nott, Colcock, and Cheves, J. concurred in the opinion, that a new trial ought to be granted, on the ground that there was evidence which should. have gone to the Jury, of a new credit to thé drawer. - .

K. L. Simons, for the motion.

Winstanley, contra.

Johnson, J.

I am opposed to the motion, on the ground that there was not any evidence á legal indulgence given to the payee;  