The defence set up by defendant in this suit, who is sued as endorser of a promissory note, is the general issue, and specially, that no demand of payment on the maker, nor legal notice of protest was ever given to him, whereby he is discharged.
The maker of the note died before its maturity, leaving a widow and children, majors and minors.
Demand was made for payment of the note on the widow alone, before the opening of her husband’s succession, the appointment of an administrator, or her qualifying as natural tutrix. The note matured on the 13th January, 1863, and it was protested, and notice served on the 12th of that month, one day too soon; but the recorder who made the protest says, that on the next day he again presented the note for payment to the widow. He also says, he notified the defendant of this last demand.
It is unnecessary to express any opinion as to the sufficiency of the demand made on the widow, as it is not proved where the recorder gave verbal notice to the endorser. Due legal notice was necessary to bind him. Bailey on Bills, 263, et seq.
The judgment of the lower court should have been one of nonsuit.
It is therefore ordered, adjudged and decreed that the judgment of the District Court be set aside, and that judgment be and it is hereby rendered in favor of the defendant and against the plaintiff, as in case of nonsuit, at the costs of the appellee.