
    [Philadelphia,
    Feb. 10th, 1823.]
    GIBBS against CANNON.
    IN EEH0E-
    Oil a guaranty of a promissory note, drawn and indorsed by others, if the drawer and indorser are insolvent when the note becomes due, this would, prima, facie, be evidence that the guarantor was not prejudiced, and therefore the' giving, him notice of non-payment, is, in such case, dispensed with,
    if notice be alleged in the declaration, it is not incumbent on the plaintiff to prove it.
    Error to the District Court for the city and county of Philadelphia, in a suit brought by Daniel B. Cannon, the plaintiff below, against John Gibbs, in which a verdict and judgment were had for the plaintiff.
    It was an action on a guaranty by the defendant of a promissory note, drawn by John Y Bryant, in favour of Mordecai Y. Bryant, dated the 6th March, 1819, for 521 dollars and 33 cents, which became due on the 7th May, 1819. Demand had been made on the drawer, and due notice given to the indorser; but when the note was payable they were both insolvent. No notice was given to the plaintiff.prior to the institution of this suit, which was on the 14th July, 1819. . The declaration averred notice to have been given to the defendant.
    On the trial, the plaintiff offered in evidence the protest of the note, to show the non-payment of the note, and notice to the in-dorser. It was objected to, but the court admitted it, and the defendant excepted.
    
      The court below charged as follows.
    The defendant contends., that if the evidence should induce the jury to suppose a guaranty took place, then, it being a guaranty of a promissory note, the plaintiff, to entitle himself to recover, must show, that when the note became ,due and remained unpaid, the plaintiff, thereupon, orwithin a reasonable time thereafter, gave notice to the indorser, and to the guarantor, of such non-payment, and, by some declaration or act, made known to the guarantor, that he held him liable on his guaranty. The rule, as to notice to an indorsor, of non-payment by the drawer of a promissory note, is founded on commercial law. The contract, express or implied, is, that the indorser will pay if the drawer does not; and by the commercial -law, the indorser must have notice of such non-payment, as soon as, from the situation of the parties, it can be given. The contract by the indorser is not to pay at all events. But a guaranty is not a conditional contract, but án absolute engagement for the payment of the note at all events. The guarantor undertakes, not only for the solvency of the parties, but that they shall paythe note, or he will. Therefore, he is bound to inquire, and see that the noté is paid. He is an actor. It-results, that it is not necessary for the holder of the note to give to the party guaranteeing, notice of its non-payment. The holder, however, is; bound not to do any act, or omit to do any act, which would discharge the parties to the note, or injure the rights of the party guaranteeing against the parties to the note. Hence, the holder is bound to give notice to the indorser, or the party guaranteeing would be discharged. Of this notice, the allegation in the protest is, prima facie, evidence. So, the holder can do no act that will change the situation of his surety, such as giving.time.
    It has been urged, that on the principles of the case cited from 2 Taunton, notice- of the non-payment is necessary. I do not think so; but if it were, the law is different in Pennsylvania, and even if, in common cases, it were the law, it would not be in the present instance, because the drawer and indorsor were both insolvent at the time the note became due. The guarantor stands differently from an indorser. The former engages for the solvency of the parties, as well as for the payment of the note.'
    The defendant excepted to the charge of the. court.
    
      Scott, for the plaintiff in error,
    abandoned the first bill of exceptions to the protest, the point having been decided in this court, Browne v. Philadelphia Bank, Serg. & Rawle, 484.
    As to the exception taken to the charge of the court, he contended, that the holder of the note was bound to give notice of nonpayment to the guarantor, who stood in the situation of an indorser, and as notice was not given in time, the plaintiff was not entitled to recover. The note became due on the 7th May, 1819, and suit was brought against the defendant, Gibbs, on the 14th July, 1819, which was the first notice he had of the non-payment of the note, Every person is entitled to notice who is to be made liable on a note, on the default of another. In Brower v. Jones, 3 [Johns. 230, where a creditor received from his debtor, an order on a third person, for the amount of .his debt, dated 9 th December, 1804, which the drawer agreed to pay in ten or fifteen days, and the order was not presented until March, or many weeks after, and in the mean time the drawer failed, it was held, that the holder had not used due diligence. In M‘Iver v. Richardson, 1 Maulé & Selw. 557., which was a case of guaranty, notice was given; as it was also in the case of Bank of New York v. Livingston, 2 Johns. Cas. 409. Chitty in his treatise on bills, 264, lays down the rule to be, that notice of dishonour should, in general be given to a person who has guaranteed the payment of the bill. He states the same principle in page 264. In Philips v. JLstling, 2 Taunt. 205., it was determined, that upon a guaranty given of the price of goods to be paid by a bill, due notice of the non-payment must be given both to the drawer and acceptor, unless both the drawer and acceptor are bankrupts when the bill becomes due. Chitty on Bills, 333, S. C. Mere insolvency of the drawer does not dispense with notice to the indorser, Barton v. Baker, 1 Serg. & Rawle, 334. Here the declaration states notice.
    
      J. R. Ingersoll, contra.
    The allegation of notice in the declaration is surplusage: or at least it is that kind of notice which is given by the • institution of the suit. The ground we rely on, as dispensing with notice of dishonour is, that it appeared that the drawer and indorser were insolvent when the note fell due. This point was determined in Warrington v. jFui bor, 8 East. 242, where it was held, that the same strictness of proof is not necessary to charge a guarantor which is necessary to support an action upon the bill itself; and that if before the bill became due, the parties liable upon it were bankrupt or insolvent, it will be prima facie evidence, that a demand upon them would have been of no avail, and will dispense with the necessity of givingnotice. Chitty on Bills, 264, S. C. Kent, Chancellor, in King v. Baldwin, 2 Johns. Ch. 559, says, in speaking of a surety on a bond, the surety was a guarantor, and it is his business to see whether the princpal pays, and not that of the creditor. He also cited Hunt v. United States, 2 Gall. 32. Oxly v. Young, 2 H. Bl. 613.
   The opinion of the court was delivered by

DüNCAn, J.

The bill of exceptions, on a point of evidence, has been abandoned by the plaintiff in error.

The remaining point is, the alleged error in the charge of the court.

The note, payment of which was guaranteed by the plaintiff in error, became due the 7th May, 1819; the action on this guaranty, was brought the 14th July, 1819. The action was the first notice be bad of the non-payment. Notice in due season had been given to the indorser. Whcn'the note became due, the drawer arid indorser were both insolvent.

The material question is, does a guarantor of a note, stand in the same situation with regard to notice, as parties to the note? This is not an action on the note, but on a collateral promise. Whatever vaccillation prevailed in the courts for a time, it is now settled, both in Westminster Halt, and this court, that insolvency of the drawer of a promissory note does not dispense with the necessity of a demand of payment, and notice to the indorser. Esdaile v. Sowerby, 11 East. 114. Barton v. Baker, 1 Serg. & Rawle, 334. As between the parties to this note, the rule is inflexible, unbinding, open to no inquiry, whether notice could have availed the indorser; for the holder has no right to judge what may be the remedies of the parties, and the original implied contract being, that as far as the nature of the original security will admit, the surety, paying the debt, will stand in the place of the creditor, Boultbee v. Stubbs, 18 Ves. Jr. 21., the presumption of law is that he is injured by want of notice. Death, bankruptcy, notorious insolvency, or the drawer’s being in prison, constitute no excuses, either at law or in equity; because many means may remain with him of obtaining payment, by the assistance of friends, or otherwise, of which it is reasonable the indorser should have an opportunity of availing himself; and it is not competent to the holder to show, that delay in giving notice has not, in fact, been prejudicial. Haynes v. Birk, 3 Bos. & Pull. 606. Nor will knowledge of the insolvency of the drawer, ánd non-payment of the note, be equivalent to due notice being given by the holder. Nicholson v. Gouthit, 2 H. Bl. 612, Staples v. Okines, 1 Esp. Hep. 332. Esdaile v. Sowerby, 11 East. 117.

In the ease of Nicholson v. Gouthit, before referred to, the indorsement was by way of guaranty, and it was held to be liable to all the legal consequences of an indorsement. That was an action on the indorsement. But in Warringtvn v. Furbor, 8 East. 242., where the guaranty was not by indorsement, and the action brought on the contract, Lord Ellenbohou&h observed, that <e the same strictness of proof, is not necessary, to charge the guarantees, as would have been necessary to support an action on the bill itself, where by the law merchant, a demand and refusal by the acceptor, ought to have been proved to charge any other party upon the bill, and this notwithstanding his bankruptcy. But this is not necessary to charge guarantees, who insure, as it were, the solvency of the principal, and therefore, if he becomes bankrupt and notoriously insolvent, it is the same as if he were dead, and it is nugatory to go through the ceremony of making a demand upon him.” Geose, Justice said, “the necessity of a demand, notwithstanding the bankruptcy of the acceptor, in order to charge the drawer or indorser of a bill, was founded solely, on the custom of merchants/’ and Le Blanc, Justice says, “there is no need of the same proof, to charge a guarantee, as a party, whose name is on a bill of exchange, for it is sufficient against the former to show, that the holder of the bill could not have obtained the money by making a demand on it/’ and Lawbence, Justice, “though proof of demand on bankrupt acceptors, is not necessary to charge a guarantee, yet the latter is not prevented from showing, he ought not to have been called upon at all.”

In Philips v. Aston, 2 Taunt. 206, which was on the guaranty, not by indorsement, the acceptor was neither bankrupt nor insolvent, when the bill became due, and no steps taken to procure payment from a solvent acceptor. It was held, that this discharged the guarantor.

I think, upon a review of these cases, the line is clearly marked out. It is this: that the guarantor., is discharged, if notice is not given of non-payment to him, that he may avail himself of the. want of proper presentment and demand, and of due notice of nonpayment, where the drawer and indorser, or either of them are solvent at the time the note became due. But when both are then insolvent, this would be prima facie evidence, that a demand on them, and notice to the guarantor, would be of no avail, and, therefore, the giving notice to a guarantor, not a party to the bill, would be dispensed with, the presumption being, that the guarantor.was not prejudiced by the want of notice. Chitty on Bills, 262. It is not necessary, however, to go farther in this case than to decide, that demand having been seasonably made, on the drawer and in-dorser, both then insolvent, the guarantor might be resorted to for payment, without notice of the non-payment, and that he would be liable, unless he proved he was prejudiced by the want of notice. Without particularly canvassing every thing that was said by the court, by way of illustration, on the general view of the case, it is sufficient for the court' to say, there was no erroif in the charge to prejudice the plaintiff.

There is great truth in the observation of Mr. Justice Story, in Evans v. Eaton, 7 Wheat. 426, that spreading a charge in ex-tenso, on the record, is an inconvenient practice, and may give rise to minute criticisms and observations upon points incidentally introduced for purposes of argument and illustration, by no means essential to the merits of the cause. And the principle laid down by the Supreme Courtof the United States, inthatcase, is perfectly just, and ought to be applied to opinions filed under the act of assembly; that in causes of this nature, the substance only of the charge is to be examined, and if it appears on the whole, that the law was justly expounded to thejury, general expressions, which may need and would receive qualification, if they were the direct point in judgment, are to be understood in such restricted sense.

It is proper to notice one objection of the plaintiff in error, that notice being alleged, it must be proved. This averment, the action not being on the note, the plaintiff in error being no party to it, was impertinent, not immaterial. The allegation di'd not relate to the point in question, the ssepius requisitas being sufficient, as the bringing an action is a sufficient request, in all these cases where the money is due and payable immediatly, 1 William’s Saund. 33; and it is the duty of the guarantor to see the debt is paid. King v. Baldwin, 2 Johns. Ch. 559. Nothing can discharge the guarantor but some act done which alters his situation. 1 Mason, 539.

The allegation of special notice may be struck out-of the decía-ration, as it is framed, and rejected as impertinence and surplusage. The difference is well known between immaterial averments, which must be proved, and impertinent ones which may be rejected. Savage quitam v. Smith, 2 Wm. Bl. 1106. Averment of notice is not necessary, where the matter was equally within the knowledge of the obligor and' obligee. It is necessary where the plaintiff^ demand arises in secret. If a man is bound to another, to indemnify him against the act of a third person, notice is not necessary to be given by the obligee to the obligor. 1 Saund. 116. So if a man is bound, or assumes to pay money, on the performance of an act by a stranger, notice need not be alleged; for it lies in defendant’s cognizance, as well as the plaintiffs, and he ought to take notice of it. 5 Com. Dig. 53. So, if he assume to pay, if A. do not pay. Ibid. Cro. Jac. 68.

But if it were necessary to aver notice, as a condition precedent to the right of recovery, yet if there exists such matter in evidence, as dispenses with the proof of it, as here the insolvency of the drawer and indorser, this will be the same thing, as if it were proved.

■ Judgment affirmed. 
      
      (a) See Murray v. King, 5 Barn. &. Ald. 165. (7 Serg. & Lowb. Ab. ’57.)
      
     