Before an action can be sustained against an endorser of a draft, it must appear that the same has been presented to the drawee for acceptance or payment, and that due notice has been given to the endorser of its non-accptance or non payment.
(Hubbard v. Tray, 2 Ired. 134; Benny v. Pabner, 6 Ired. 623, cited and approved.)
Civil actioN, heard before Albertson, J., at Spring Term, 1874, of NobtiiaMptoN Superior Court.
On the 28th day of January, 1862, one N. M. Long, Jr., gave a sight draft on Col. N. M. Long, for the sum of four hundred dollars, payable to Mrs. M. W. Ransom or order. This draft was transferred to the defendant, and by him transferred to the plaintiff.
This action was brought to recover the value of the draft, with damages. The plaintiff alleged that Col. N. M. Long refused to accept or pay the draft, and that defendant on demand, before action was brought, also refused to pay.
The defendant alleged that he had no knowledge of the refusal of N. M. Long to accept or pay the draft, and that he had no notice of the non-acceptance or non-payment of the same until shortly before this action, and that he had reason to believe that the draft was never presented to N. M. Long.
That the draft had been protested and. no notice given of its non payment to the defendant.
The jury returned a verdict subject to the opinion of the Court, as to whether upon the facts the plaintiff was entitled to recover. The Court gave judgment for the defendant, and thereupon the plaintiff appealed.
12. B. Peebles and Oonigland, for appellant.
Smith & Strong, contra,
submitted that the draft must be presented to drawer for payment. 2 Green. Ev., secs. 175, 176; nor is presentment excused by drawer’s death, insolvency, &c. lb. sec. 177.
*570Notice of non-payment should be given. 75. sec. 186 ; Hubbard v. Troy, 2 Ire., 134.
Insolvency does not excuse. Denny v. Palmer, 5 Ire., 623 ; jLsdoile v. Souierby, 11 East., 113 ; 2 Parson Bill and Notes, 446.
It must be in reasonable time. lb. 506 et seq.; 1 Parson Bills and Notes, 377, 381-2.
Settle, J.
The authorities cited by the defendant’s counsel establish beyond controversy:
1. That the draft should have been presented for payment.
2. That notice of non payment should have been given in reasonable time to the defendant.
As both of these essential requisites to the maintenance of this action are wanting, we concur with his Honor that the plaintiff is not entitled to recover.
Pee Curiam. Judgment affirmed.