—The matter for consideration in this case is the liability of the indorsers upon the' following note:
“$680 59. Palestine, January 1, 1862.
“ One day after date I promise to pay Elson & Temple-man or bearer six hundred and eighty dollars and fifty-nine cents, value received, with ten per cent, interest from date.
“ Thomas Bose.”
with this indorsement:
“Pay to Ira N. Green, March 28, 1863.
“Elson & Templeman.”
The petition against the maker and the indorsers was filed in court on the 14th day of October, 1865, only two days before the commencement of the term. Citation did not issue until the 27th of November, 1865. Upon this state of facts the indorsers, in their answer, insist that they had been exonerated from liability. 1
The judge ruled in favor of the indorsers, but whether upon the points as presented by the pleadings or not does not appear.
The parties, both plaintiff and defendant, seem to be unaware of the fact that on the 11th January, 1862, an act was in force which provided that “the holder of any such *161bill of exchange or promissory note may also secure and fix the liability of any drawer or indorser of such bill of exchange or promissory note, for the payment thereof, without suit against the acceptor, drawer, or maker, by procuring such bill or note to be regularly protested by .some notary public of any county for non-acceptance or non-payment, and giving notice of such protest to such drawer or indorser, according to the usage and custom of merchants.”
This act, being the 4th section of the act passed on the 20th March, 1848, by the 6th section thereof was made to apply to contracts between merchant and merchant, their factors, and agents, only. But on the 11th January, 1862, this 6th section was so altered that the act applied to drawers and indorsers, without regard to their occupation. (Paschal’s Dig., Arts. 232-234, Sote 295.)
It hence follows that although the courts were suspended by the legislature^ the war, the vis major, or any other power, the liability of all indorsers could be fixed by notarial acts. And because the holder did not fix the liability of the indorsers as required, the judge did not err in so deciding.
Judgment aeeirmed..