
    Henry Lazarus ads. Joseph Aubin.
    in an action by an indorsee against an indorser, notice of non-payment was proved to have been given the indorser, but the court Held, that it was necessary to make the indorser liable to prove an actual demand upon the drawer, previous to the notice of non-payment to the indorser.
    TRIED before the City Court, January Term, 1833. Assumpsit upon a promissory note by the indorsee against •the indorser.
    recorder’s report.
    This was an action brought by the indorsee of a promissory note against the indorser for $356 80, dated on the 11th January, 1819, payable 30 days after date : all the parties to the note resided in the city. The plaintiff proved by the affidavit, of a Mr. Hyndes, (which was admitted in evidence,) that Hyndes carried to the defendant on the 13th of February, 1819, a written notice that the payment of this note had been refused by the drawer, and therefore that payment of it was expected from the defendant. The defendant’s counsel contended that the defendant was discharged by the laches of the plaintiff, who had not proved any demand upon the drawer, and had omitted, supposing such demand to have been made, to give notice of it in sufficient time to the indorser. I stated to the jury that the defendant could only be liable after the default of the drawer, from whom the holder must first demand payment, or use due diligence for that purpose before he could resort to the indorser : that in this case I did not think that the testimony amounted to more than a mere communication to the defendant that the drawer had refused to pay ; but it by no means shewed that the witness, or proved that any other person had made a demand upon the drawer, much less that demand which the law requires : that such a demand was a formal act; that it ought to be made by the holder himself, or by some one authorized by him for that purpose, and that the individual making the demand should be competent to give a legal receipt for the money, if payment was tendered. Had such a demand been proved, I considered that notice had been given sufficiently early, as the days of grace had not expired on the 13th of February.
    The jury found a verdict for the plaintiff.
    A notice was served upon me that a new trial would be moved for upon the inclosed grounds. -
   Mr. Justice Gantt

delivered the opinion of the court r

The court in this case take the same view of the law which the Recorder has expressed in the foregoing opinion, and for the reasons assigned by him, adopt it as the opinion of this court.

A new trial is ordered.

Justices Richardson and Johnson, concurred.

Colcock, Justice, concurred in the result.  