¶1The endorsor dorses to give ul'edlt *o t}j® i8 counterseeu{¡able upon the *334aote, nor in an action for money^ had and received, ■ unless the plaintiff show that thg maker is insolvent, or that he' has brought' ■ suit which has proved fruitless. cient to show that the maker eat of the incogs0of the .process. o e
¶2*333' ERROR to the circuit court for the district of Columbia, sitting at Alexandria, in an action of assumpsit by the endorsee of a promissory note against his immediate endorsor. The nqte, was made by Wellborn, on the 1st oí January, 1806, tor 200 dollars, payable to Hodgkin or order 120 days after date, negotiable at the bank of Alexandria. On the *334trial, the plaintiff did not produce any evidence of a suit against,thé maker, porevidence.of his insolvency, but proved that the maker neiier was an inhabitant of the district of Columbia, but resided in Albeldarle, county, in the state of Virginia; whereupon, the court, upon the prayer of the defendant, instructed the jury that if was-still necessary for the plaintiff, to prove, to the satisfaction of the jury, that he had brought suit upon the note against the maker, or that a suit against him would have been fruitless, before he could, resort to the endorsos To which instruction the plaintiff'excepted.
¶3The plaintiff also excepted to the refusal of the court t0 instruct the jury that if they should be sa~ tisfied by the evidence, that at the time the note was i* was end'orsed by-the defendant with a-view giving credit to the maker with the plaintiff, and that it was so . understood j and if they should be further satisfied' bv the evidence, that the maker left in the hands of the defendant funds to pay the note,, or otherwise counter-secured- him for becoming endorsor of the note, the plaintiff.is entitled to recover in this actiQn, although the maker should not be proved to have been insolvent before the. note became due.
¶4The-declaration contained two counts; one upon, the note, the other for money had and received.
¶5The case was submitted, without argument, to the court, who, after inspecting the record, on the next day,
¶6Affirmed the judgment:, with costs.