1788.
ROBERTSON et al. verʃus VOGLE.
I
N this action the Plaintiffs declared, as Indorʃees, upon a promiffory note, againft the Defendant as Indorʃor, both the parties refiding in the city of Philadelphia. It appeared, on the trial, that the note was drawn on the 10th April, 1786, and that tie was protefted for non-payment on the 12th June, 1786; but on the 5th of July and on the 23d of Auguʃt following, the Plaintiffs received feveral partial payments from the drawer, without attempting to give notice of the proteft to the indorfor, till after the laft of thofe payments, when the drawer had become greatly embarraffed in his circumftances. Nor was there, indeed, any other evidence of notice, previoufly to the commencement of the action, to March term 1787, than that the Plaintiff's clerk had frequently called at the Defendant's ftore, but was not certain that he had ever feen him, or left a note of his bufinefs.
Ingerʃol moved for a non-fuit on two grounds: 1ft, Becaaufe the receipt of a part of the money from the drawer, is a difcharge of the indorfor for the whole ; and 2dly, Becaufe the Plaintiff's did not give reafonable notice of the proteft to the Defendant.
1ft. One the firʃt point he contended, that the indorfor of a promiffory note is only a warrantor that he wil pay the money if the drawer does not, and that if the indorfee receives a part he takes upon himfelf to give credit to the drawer and difcharges the indorfor. 1 Wills. 46. Hall v. Pitʃield 2. Stra. 745. Kellock v. Robinʃon S.P.
2d. With refpect to the ʃecond point he cited Term Rep. 167. Eaʃter. 27. Geo. 3. Tindol et al. c. Brown, where it is faid, that when a note is difcharged by the drawer, the holder muft give reafonable notice to the indorfor; that this means fomething more than making it known ; for it is enough that he fays the drawer has not paid, but he muft declare that he does not mean to give credit ; and, therefore, when the circumftances are afcertained, what is reafonable notice is a queftion of law and not of fact. As to the giving time, the holder does it at his peril, for it has never been determined that the indorfor is liable, where the holder has given credit to the drawer ; fo that the want of notice is tantamount to payment. Id. 712.
Sergeant and Barian, for the Plaintiffs, argued, 1ʃt, That the acceptance of a part fhall not prejudice the holder of a bill or note Marius 6.8.9.86.87 ; and, as upon the authority of this book, the Court had determined a former queftion,[♦] they faid it could not be fhaken, in the prefent inftance, by Wils. 46, which was not a decifion in the principal cafe, but an chiter dictum, referring to a preceeding determination for an argument a ƒortiori; nor by 2 Stra. 745, which was a fhort Niʃs Prius note. Befides, thefe reports give no reafon for their decifions, but Marius affigns a very fatisfactory one for his doctrine ; to wit, that it is beneficial to the indorfor that the
[♦]See Ant.
