Wilmington,

November Term, 1804.

#### John London vs. Henry B. Howard.

ON the 10th November, 1801, John Barclay gave to the defendant a promisory note, which on the same day was endorsed. by the defendant to the plaintiff. The note being payable *333demand, the plaintiff in the presence of the defendant, ashed Barclay when it should be paid, and was answered, in a day or two. On the 26th of January, 1802, Barclay became a bat.Irrupt, and no other demand for payment from Barclay, fcesid. what is above stated, appeared to have been made by the plain.iff before the day when Barclay failed ; and no notice of the refusal or inability of Barclay, given to the defendant, until aft,-. Barclay’s failure. It further appeared, that between the 30ih of November, and the 26th of January following, the plains-ff received from Barclay considerable sums of money in payment of other demands. All the parties lived in Wilmington, and were commercial characters.

Taylor, Judge,

submitted it to the jury under all the circumstances of the case, to decide whether the plaintiff by his delay or indulgence to Barclay, had not made the note his own, and discharged the defendant. The strict rule laid down in the English law books respecting bills of exchange and negotiable noces, have never been deemed in force and in use in this state ; and it was impossible to lay down an universa! rule at the time when demand of payment should be made of the maker of the note, and notice given to the indorser. The rule must depend on the local situation and the respective occupations and pursuits of the parties. In this case he thought that the indulgence given by the plaintiff to Barclay, was too long, and that the plaintiff should sustain the loss occasioned by Barclay’s failure.

Verdict for the defendant.