Opinion by

John M. Dunlap executed a note for one hundred fifty dollars, payable ninety days after date, at the Ashland National Bank, to the order of the appellant, J. D. Jones. The note was indorsed by Jones for the accommodation of the maker, and was delivered to him to raise money by a sale thereof.

Dunlap sold and delivered the note to Wilson, Andrews & Co., who were private bankers. Wilson, Andrews & Co. made an assignment of all their effects to Hampton before maturity of the note, and Hampton, as assignee, indorsed the note to A. C. Campbell, cashier of the Ashland National Bank, for collection and credit. The note was protested for non-payment, and suit was brought thereon by Hampton, assignee, against both Dunlap and Jones. Jones demurred to the petition, and his demurrer was overruled. He then filed an answer, and a trial was had, which resulted in a judgment against him; and he prosecuted this appeal to obtain its reversal.

The note was not discounted by an incorporated bank, and not being negotiable as well as payable in bank, could not have been placed upon the footing of a. foreign bill of exchange, if it had been discounted in the bank where it was payable. Sec. 21, Chap. 22, Gen. Stat. The appellant was, therefore, only liable as assignor. Sec. 14, Chap. 22, Gen. Stat., and cannot be sued until the maker of the note has been prosecuted to insolvency.

The court, therefore, erred in overruling the demurrer. Judgment reversed, and cause remanded with directions to sustain the demurrer and dismiss the petition as to the appellant.