The opinion of the Court was delivered by

The only question which I deem necessary to consider, in this case, is, whether an action can be maintained on an instrument ' of this nature, against the endorser, on the ground of the insolvency of the maker.

The instrument is nothing more than an engagement to deliver, at the time therein mentioned, 100 gallons of whiskey, and the endorsement nothing more than a transfer of the interest to the endorser. It contains no express, and embraces no implied, warranty of the solvency of the maker. Since the case of Bay v. Freazer, (1 Bay, 66,) the question therein determined came before this Court in the case of Robert Walker v. Scott,1 decided in Charleston, and it,'was then determined,* that, on an assigned, bond no action lay against the assignor, on the ground of the insolvency of the obligor. That the assignment contained no guarantee of the payment, unless that guarantee was express. This case depends upon the same principle, but it is much stronger. That was a money transaction, and bore, in that respect at least, some analogy to promissory notes for the payment of money.

I am, therefore, of opinion, that a nonsuit ought to be granted.

I concur in this opinion. It was decided on the authority of the case of Bay v. Freazer. It had escaped me that the doctrine had been overruled, in the late case in Charleston, referred to. It cannot be otherwise, as long as the decisions of this Court depend on memory.