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. In relation to promissory notes, there is the same necessity for demand of the drawer1 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 plaintiff's 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 1 Str. 649.