After advisement, the opinion of the Court was drawn up by
Weston C. J.We have decided in the case of Green v. Jackson, ante, p. 136, which was an action against the acceptor upon the same bill, that it was within the discretion of the Judge, to permit the amendment, which was objected to in this case. We further decided, that the bill in question is a foreign bill; and that the protest therefore was properly admissible in evidence.
It appears that the action here was brought, before any attempt was made to give notice to the defendant, the drawer. And this we regard as a fatal objection to the action. It is true, that in Stanton & al. v. Blossom & al., 14 Mass. R. 116, it is intimated by Putnam J., who delivered the opinion of the Court, that an action may be brought against the drawer, before any attempt to give him *141notice is made, if there is afterwards due and reasonable diligence to do so, on the part of the holder. But the point decided in that case was, that notice of non-acceptance from the drawee to the drawer was Insufficient
In Shed v. Brett, 1 Pick. 401; City Bank v. Cutter & als., 3 Pick. 414, and in Greely & al. v. Thurston, 4 Greenl. 479, the doctrine seems well established, that the holder is entitled to an action, against the drawer or indorsor, immediately after he has used due diligence to give them notice. And the implication necessarily is, not before; for the liability of the drawer or indorser, which is conditional, depends upon due diligence on the part of the holder ; and no action can be brought against either, until his liability becomes absolute. This point has been directly decided, in the case of the New-England Bank v. Lewis & al., 2 Pick. 125, where it wras held that no action could be maintained against an in-dorser, until due diligence had been used to give him notice; and the Court repudiate the correctness of the intimation in Stanton v. Blossom.
It would have been sufficient, if notice previous to the action, had been sent to the defendant from New-York, where the bill was protested. But upon the evidence as it stands, wo are very clear that the action cannot be supported. The verdict is accordingly set aside, and a new trial granted, in which however the plaintiff must fail, unless he shows due diligence to give notice, prior to the action.