On the 3d of March, 1830, John B. Anderson executed his promissory note under seal, for $54, payable one day after date, to Smith and Peebles. On the 20th August, 1830, Smith and Peebles transferred by endorsement the said note to Wallace and Hobbs for value received, and waived demand and notice. Wallace and Hobbs warranted Anderson and Smith and Peebles, before a justice of the peace, who gave judgment against all of them for the sum due on said note, the same being more than $50.

Wallace and Hobbs, some time after, brought this suit in the Williamson county court. The declaration contained the usual count against an endorser, with an averment of a presentment of the note to the maker for payment, and refusal and notice to the endorsers: also, all the money counts, and account stated; pleas, non as-sumpsit and former judgment; verdict and judgment in the county court for Wallace and Hobbs for $59 22; an appeal taken to the circuit court, where there was a similar verdict and judgment, affirming, &c. with twelve and a half per cent, from, &c. Appeal, &c. &c. to this court.

It was proven in the circuit court, that the judgment of the justice of the peace had never been appealed from, or in anywise reversed or satisfied. It was further proven that Wallace, one of the plaintiffs, went with Anderson and the constable to the justice of the peace, and told him to grant a stay of execution to Anderson; the justice said that an execution had issued, and that he could not grant a stay. Wallace then told the constable to indulge Anderson the time of a stay. It was proven that at that time and up to January, 1831, Anderson was good for the debt, and afterwards became insolvent.

The court erred in charging the jury that the indulgence given the endorsers would not discharge the defendants; after issuance of execution, the plaintiffs had no right, but at their own peril, without the consent of defendants, to give time, as by the act of 1820, ch. 151, the sheriff is compelled to make satisfaction out of the maker’s property first, if to be found. This is a legal protection given by law to the endorser, and the plaintiff cannot interpose time to the maker, without the consent of the endorser, who knew the law and knew the maker was good; so far as the plaintiffs and defendants are concerned, the act creates a lien on the endorser’s property, for the benefit of the defendants, and if the plaintiffs interpose and by their act destroy the property, and a loss must be sustained, it should fall on them. 3 Kent 78.

2. The court erred in charging the former judgment was no bar to the action, because of want of jurisdiction.— An assignment of anote waiving notice and demand, is an unconditional promise to pay, for which debt 'would lie, and is an agreement in writing signed by the endorser, and if under one hundred dollars gives the justice jurisdiction; it is an agreement under the acts of 1809, ch. 84, 1813, ch. 67, 1820, ch. 25.

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