
    STOTHART AND BELL vs. PARKER.
    Action upon the case against the defendant as an indorser of a promissory note. Plea, non assumpsit and issue.
    The note was executed in December, 1801, by William Hickman, payable a few days after date ; the defendant indorsed it to the plaintiffs in August, 1802, and in August, 1803, the plaintiffs made demand of payment without effect.
    It appeared that all the parties to this transaction lived in the same town. Hickman, the drawer of the note, left this country in December, 1802. It was proved that Hickman was insolvent when the note was indorsed, that he was an intimate acquaintance of the defendant, and his insolvency generally known to his acquaintance.
    If the indorser of a promissory note knows the maker to be insolvent at the time of indorsing, the indorsee is not bound to give notice of non-payment to the indorser, altho’the maker’s insolvency was equally known to the indorsee.
    Dickinson for the plaintiffs.
    When a note is assigned after falling due, it stands of course dishonored, and in such cases there was not any necessity for notice to the indorser. Chitty 87, 103. In England if a note is protested for non-payment, it is evidence of the insolvency of the person to whom presented. At all events, if the drawer is insolvent at the time of indorsement, there is no necessity of notice to the indorser. 1 Salk. 132. We admit, if notice were necessary, it was not given.
    Stuart for the defendant.
    Demand must in every case be made of the drawer, and notice to the indorser, Esp. N. P. 57, and within a reasonable time. Where a note had been kept without notice two months, the indorsee lost the money by his own laches ; Esp. N. P. 36. It is not contended that it was necessary to bring suit against the drawer, before you can resort to the indorser. But a demand is necessary, and notice of non-payment, before recourse can be had to the indorser. Notice has not been attempted to be proved in this case ; besides, Hickman was here three months after the note was indorsed, and surely some attempt ought to have been made to get the money of him during that time, before recurring to the indorser. Both the plaintiffs and defendant knew the situation of Hickman at the time of indorsement ; all parties knew that he was insolvent, if such were the fact, but that is not admitted. Notice is necessary in all cases unless there has been fraud, and that cannot be alledged here, because the plaintiffs knew the situation of Hickman as well as the defendant.
    Whiteside on the same side.
    If an indorser knew the drawer of a promissory note to be insolvent when he indorsed it, he was not entitled to notice, but this does not shew that it is not necessary to apply to the drawer in some reasonable time.
    Grundy also for the defendant
    insisted, that want of notice cannot be excused on account of the defendant knowing of the insolvency of the drawer.-Such a case as this would be a fraud, and it were necessary to have a declaration stating such fraud or deceit.
    Dickinson in reply.
    It is admitted to be a general principle, that no subsequent occurrence shall dispense with notice. The general rule is, that there must be notice, but this, like other general rules, has exceptions ; one is, that if the indorser knew of the insolvency of the drawer at the time of indorsement, notice is not necessary. No case can be found in the books, but of indorsements before notes are payable.
    Notice is not necessary where a bill of exchange has been protested before indorsement, or the time of payment is past. If a promissory note is assigned after being due, there is no necessity for notice according to the law of bills of exchange.
   Per Curiam.

In relation to promissory notes, there is the same necessity for demand of the drawer and notice of non-payment, if assigned after being due as before. The general rule is, that there should be this notice within a reasonable time.-This general rule, however, admits of the exception stated by the plaintiffs counsel in his last argument. Notice is not necessary where the indorser knew of the insolvency of the drawer at the time of the indorsement ; and if the jury in this case believe the defendant knew this, they ought to find for the plaintiffs. In this case, neither demand of the drawer, nor notice to the indorser is necessary, nor does it seem to make any difference, whether the insolvency were known to the indorsers or not.

Verdict for the plaintiffs. 
      
       1 Str. 649.
     