March 1880. adm'r v. Helms & als., 29 Gratt., 462, in which the unanimous opinion of this court was delivered by Judge Christian, strongly sustains this case. Term. Taylor & al. Upon the whole, the court is of opinion that there is no error in the decree appealed from, and that the ter & als. same ought to be affirmed. V. Lancas DECREE AFFIRMED. Richmond. BROUN V. HULL, survivor, &c. March 11. B the payee of a negotiable note of N payable at the E bank, endorsed his name on it and put it in the bank for collection. It was not paid at maturity, and B withdrew the note, and after holding it for some years, and after the E bank had ceased to exist, he transferred it to H, writing over his name the words "protest waived." H failing to obtain payment of the note from N brought his action against B to hold him responsible upon his endorsen ent of the note. HELD: 1. When B put his name on the back of the note it was only 2. The endorsement of an overdue note does not relate back 3. The E bank having ceased to exist when B transferred the 4. As assignee of the note H was not under any obligation to 1880. March Term. 1880. March Broun V. and that the maker was not notoriously insolvent. And he had a right to show that at the time of his transfer of the note to H the E bank had ceased to exist. This was an action of assumpsit in the circuit court Hull, sur- of Loudoun county, brought in February, 1873, by vivor, &c. Robert Hull and Thomas W. Atkinson, surviving partners of the firm of Hopkins, Hull & Atkinson, against Edwin C. Broun and John T. Johnston, late partners under the name of Broun & Co. The process was not served on Johnston, and in the progress of the cause the death of Atkinson was suggested. The object of the suit was to recover from Broun the amount due upon a note made by N. and C. F. Berkeley, bearing date the 1st of January, 1861, and payable in six months, at the Exchange bank of Alexandria, Va., for $1,865.50. There was a verdict and judgment for the plaintiff for $1,587.33, with interest from the 13th of April, 1875. On the trial of the cause the defendant took three exceptions to rulings of the court excluding evidence offered by him, and a fourth to the refusal of the court to set aside the verdict and grant him a new trial on the ground of the erroneous rulings of the court excluding the defendant's evidence, and also because the verdict was against the evidence. The facts were, that the said Berkeleys executed the note as above described; that before the note was due Broun deposited it in the Exchange bank, Alexandria, Va., for collection, and endorsed on said note at the time of said deposit the name of Broun & Co.; that said note was not paid at maturity; that after such maturity he withdrew the note from the bank, and held it until 1868, when he delivered it to Hopkins, Hull & Atkinson, and at the time of such delivery, to-wit: May 6th, 1868, wrote over the name of Broun & Co., "protest waived." 1880. March Term. Broun After the plaintiff had introduced the note in evidence, and there rested his case, the defendant proposed to prove that at the time he delivered the note to Hopkins, Hull & Atkinson, viz: May 6, 1868, there was no such bank as that named in the said note; Hull, survivor, &c. but the court excluded the testimony. And this is the ground of the defendant's first exception. The defendant further offered to prove, that at the date of the delivery of said note to Hopkins, Hull & Atkinson, and at the date of writing on the back of said note the words "protest waived," viz: on the 6th of May, 1868, the makers of said note were solvent, and continued solvent for sometime afterward. And also to prove that Hopkins, Hull & Atkinson, and the plaintiff, their survivor, had been guilty of laches, and had not used due diligence in endeavoring to collect said note from the makers thereof; and that if due diligence had been used by the holders of said note it might have been collected. But the court excluded the evidence. This is defendant's second exception. The defendant further proposed to prove that Hopkins, Hull & Atkinson undertook and began the collection of said note by suit at law in the fall of 1868 in Loudoun county, Va., and afterwards by a suit in chancery in said county, against the makers of said note; and that said suits had been so instituted and conducted as to result in the loss of the said debt. And to establish this the defendant further offered in evidence the records in said suits. But the court excluded the evidence. This is the defendant's third exception. From the judgment in the cause, Broun applied to this court for a writ of error and supersedeas; which was awarded. W. W. Crump, R. H. Lee, and T. L. Broun, for the appellant. VOL. XXXIII-4 V. 1880. March Term. Broun V. vivor, &c. Noland and Payne & Alexander, for the appellees. STAPLES, J. The note which is the subject of the present controversy, was executed in May, 1861, by NorHull, sur-borne Berkely and Charles F. Berkely, to Broun & Co., for the sum of eighteen hundred and sixty-five dollars and fifty cents, and was negotiable and payable six months after date at the Exchange bank, Alexandria. It was deposited by the payees in the bank for collection, but not being paid at its maturity, was subsequently withdrawn by C. E. Broun, the defendant, who was one of the firm of Broun & Co., or himself constituted that firm, and was retained in his possession until the year, 1868, when he transferred the note to the plaintiffs, Hopkins, Hull & Atkinson, of Baltimore. At the time of the transfer, the words "protest waived" were written above the names of Broun & Co., which had been placed on the note at the time it was deposited in bank. In the meantime, between the maturity of the note and its transfer in 1868, the charter of the Exchange bank had expired, and the bank had ceased to exist. Upon this state of facts, the question is presented, whether the defendant, C. E. Broun, is to be considered. an endorser according to the law merchant, or as the mere assignor of the note according to the rules of the common law. The question becomes a very important one, in view of the fact, that as assignees, the plaintiffs may have lost their recourse upon the defendant by the want of due diligence in pursuing the makers. The whole difficulty in the case grows out of the peculiar provisions of the Virginia statute, which declare those promissory notes only negotiable which are payable in this State at a particular bank, or at a particular office thereof for discount and deposit, or at |