Independent of the statute, the Court below was not bound or authorized to order a nonsuit, but should have instructed the jury, that without such proof the plaintiff could not recover. The act of 1807, Laws Ala. p. 68, s. 4, directs, that if any suit shall be brought on any such order before notice and refusal to pay, the plaintiff shall be nonsuited and pay costs. The act of 1812, Laws Ala. p. 69, gives to the assignee of a promissory note, «Sic. an action against the indorser, as in cases of inland bills of exchange. The Court below erred in refusing to order a nonsuit.
Let the judgment be reversed.