There is a maiked distinction between cases where notice is necessary as a mere preliminary to the action, to enable the defendant to pay and save the costs of the action, *324as when a surety pays the debt, he must give notice to a co-surety to enable him to pay his rateable part and save the costs of suit, Linn v. McClelland 4, Dev. & Bat. 458, and cases where notice is necessary in order to constitute a, cause of action, as where the drawer of a bill of exchange fails to accept or to pay, notice to the drawer is required to be given in reasonable time, in order to constitute a cause of action, for the drawer is under no liability unless he has notice ; in other words notice is a condition precedent to the promise to pay, On the part of the drawer.
Our case involves the question, was notice necessary in order to constitute a cause of action 1 His Honor charged that notice was not necessary, and there was a verdict and judg-' ment, accordingly. On a motion for a new trial his Honor set aside the verdict and judgment for error in law’, and granted a new trial, from which ruling the plaintiff appealed, C. O. P. sec. 299.
We are of opinion that his Honor decided according to law in the first instance, and there was error in law in granting a new trial.
Upon a difference of opinion as to the validity of the transfer of the bond, by erasing the name of the defendant and inserting the name of the plaintiff, the defendant agreed, that if the transfer was not all right he would make it so, or pay to the plaintiff the sum of $10,000, with interest &c. In point of fact the transfer wa« not all right; so that it leaves the promise of the defendant to pay $10,000, absolute and without condition, unless upon the idea that it was the duty of the plaintiff to ascertain the fact, and give the defendant notice thereof within reasonable time.
Whether the transfer, in the manner in which the .defendant made it, w'as valid or not, according to the regulations of the department, was a matter equally within the knowledge of both parties, and the means of acquiring correct information in regard to it was equally accessible to both parties; *325so there was nothing to be done that would come peculiarly within the knowledge oí the plaintiff. Under these circumstances we are of opinion, that as the defendant had agreed to pay the amount in money, and it the transfer was not right to make it all right, it behooved him specially to look to the matter and satisfy himself that the transfer was regular and valid, and it it was not, to take the steps necessary to make it so. It is to be inferred from his failing to do so, that he was content to be charged with the amount in money.
One accepts a deed upon the assurance on the part of the bargainor, that the privy examination of his- wife is regular, and if it be not, he will have it made all right, or else pay back the purchase money. If in fact, the examination is not regular, the promise to pay back the purchase money becomes absolute, unless he avails himself of the right reserved, and has it made “ all right” within reasonable time.
There is error, the order granting a new trial is reversed, and judgment for plaintiff, as entered in the first instance.
Pee Curiam. Judgment affirmed.