A. Winston v. Hugh Kelly, 33 Tex. 354

Denison, J. This is a suit brought by Hugh Kelly against Winston, as the mater, and Jones & Cox as the indorsers, of a .promissory note payable to the order of John H. Jones on the first 'day of October, 1861, and dated February 2, 1861. It appears by a stipulation, endorsed upon the record, that Cox, the only plaintiff in error, indorsed the note after it had become -due, to-wit, on the twentieth -day of May, 1862. The assignments of error are, that the court erred in overruling .the defendant’s demurrer, and special idemurrer, to the petition. C. R. Cox is the only plaintiff an error.

The (demurrer is, first, a general demurrer, and, second, a special exception in the following words: “ If ever he was liable to plaintiff, it -was only as indorser on said note sued on; that said note was'due on the first of October, 1861; that the said plaintiff 'did not bring his suit to bind this indorser at the first term of the (Court after said note became due, neither did said plaintiff have «aid note protested for non-payment.” The holder of a note indorsed after due, to fix the liability of the indorser so indorsing the note, must use diligence in presenting the note to -the maker and demanding payment, and must give .notice thereof to the .indorser. (8 Serg. & Rawle R., 350.) The petition in this ease does not allege any demand upon the maker nor any notice to the indorser.

The general demurrer should have been sustained. For this error the judgment is reversed. Reversed.