
    Chewning et al. Appellants, v. Gatewood.
    When on a demurer to evidence, a demand of payment of a promissory note was stated, and also that notice to the endorser was persona! on the same day, he!d the presumption will be that the demand of payment and notice of non-payment were such as the law requires.
    It is a general rule, that on a demurrer to evidence, the court will infer such facts as the jury might have reasonably found, had the cause been left to their decision.
    If the notice of non-payment be of a character to put the party upon enquiry, it seems it will be sufficient.
    The holder of a negotiable note by a blank endorsement, may maintain an action upon it, without filling up the blank.
    APPEAL from the circuit court of Warren county.
    This was an action of assumpsit against the drawers and endorsers of a promissory note, which was payable at either of the banks in Vicksburg. The proof offered on the trial in the court below, consisted of the testimony of the notary, who was the only witness in the cause. He proved that on the day of its maturity, the note was at the Planters’ hank during the whole day, and was presented for payment at that bank, and also at the Commercial Bank of Vicksburg, and payment refused. That these were the only banks at that time in Vicksburg. The notary also stated, that on the same day he gave notice to Chewn-ing the endorser, in person, and to William Bailey, by placing notice in the post-office.
    To this evidence Chewning demurred, and the court overruled the demurrer, and gave judgment for the plaintiff.
    Two objections were taken to this judgment. 1st. That the evidence of the plaintiff was not sufficient to authorize a judgment against Chewning as endorser. 2d. And also that the plaintiff has shown no title to the note, the endorsement under which he claims being in blank.
    French and Burwell, for appellants.
    The points here relied on by the counsel for appellants are:
    
      1st. That the testimony set forth in the demurrer is not sufficient to charge the endorser.
    2d. That the plaintiff below does not show title to the note— the endorsement being in blank.
    1st. We admit as a general rule, that on a demurrer to' evidence the court will consider the inference which a jury might reasonably draw from the testimony as set forth in the demurrer — but in a demurrer to eviderice to charge an endorser-, who is so, without consideration from all that appears from the record, we think that the court should only consider whether the testimony as set forth admitted by the demurrer to be true is evidence per se sufficient to charge the endorser. His liability being a conditional one, he can require of the holder to show that he. has done every thing which the law requires before he can be made responsible. If the note was in the Planters’ Bank during the whole day of its maturity, as stated in the demurrer, then it is impossible that there could have been a proper demand, on the same day at the Commercial and Rail Road Bank, the'note being payable at either Bank. The demurrer does not show what was the nature of the notice to the endorser, Chewning. Could a jury from the statement of giving notice to Chewning, (Bayly is not sued,) as appears in the demurrer, infer that it was such a notice as gave the endorser a knowledge of the demand and non-payment-; or was it sufficient even to put him on enquiry relative to any note which he might have had falling due about that time? Notice must import to the person to whom.it is given that he is considered fiable and that payment from him is expected. A mere demand of payment and threat of law proceedings, is not sufficient. Chitty bn Bills, 140.
    2. In plaintiff’s declaration there is an averment of special endorsement by Chewning to holder. The endorsement is in blank. A party plaintiff in an action on a promissory note or bill must show in his declaration a right to sue thereon in the same way that every other plaintiff must show a sufficient title to enable him to maintain his action.
    The allegata and probata must correspond.
    In Chitty and Baily on Bills, under the head of “ endorsement in blank” passim. The holder has a right at any time before or at the trial to write over the endorsement what he may please in order to make it correspond with the pleadings, but it must be done before trial or judgment.
    The cases of Day et al. v. Lyon, 6 Har. & Johns. Rep. 140, and 5 Har. and Johns. 115, are authorities directly in point. The case in 6 Johns, and Har. 140, went up on a bill of exceptions to insufficiency of notice and also upon the endorsement in blank. The court regarded the latter point as conclusive, and did not touch the former.
    Ritchie, for appellee.
    The only reason why notice is required being that the endorsers may have the earliest opportunity of resorting to parties liable to them, it is not necessary that this consequent liability should be stated to them, because that is a legal consequence of the dishonor, of which they must necessarily be apprized by mere notice of the fact. Hence it is laid down in 3 Kent’s Com. 2d ed. 108, that the notice is sufficient if it state the non-payment, and it is not necessary to state expressly, for it is justly implied, that the holder looks to the endorser. See also Lenox v. Leveret, 10 Mass. Rep. 1.; Wallace v. Agry, 4 Mason’s R. 336; Kenworthy v. Hopkins, 1 Johnson’s Cases, 107; also, 3 Conn. Rep. 516.
    The law does not prescribe any form of notice to an endorser; all that is necessary is, that it should be sufficient to put the party upon enquiry, and to prepare him to pay it or defend himself. Rudy v. Seixas, 2 Johns. Cases, 337. Nor is it necessary that the notice should contain a formal statement that it was demanded at the place where payable. Bank of United States v. Carneal, 2 Peters, 543. A notice of a protest need not state who was the holder of the bill or note. Shirer v. Duckham, 1 Litt. 194.
    
      2. With regard to the alleged failure of the plaintiff to show title to the note, 1 will state that this point was not raised on the trial, the defendant’s counsel resting the defence for their client (Chewning, the endorser, the other defendants not having plead) on the insufficiency of the evidence of the witness Arthur, to charge the endorser Chewning.
    I refer the court to the declaration filed; in which the plaintiff, Gatewood, traces the title from the drawers, Braddick & Emory, to the first endorser, Wm. Bailey, thence to the second endorser, and thence to himself. It is unnecessary to trouble the court with many authorities .on this point, but will refer them to the English case reported in 19 Ves. 329, 232, where it is decided that an endorsement in blank, in itself constitutes a complete and perfect-transfer of the interest in the bill, and, without the addition- of any other words, will vest the right of action and all other rights in the transferee and subsequent holders; also to the American case, reported in 2 Dali. Rep. 296, Wilkinson v. Nicklin. The whole ground is, moreover, covered by the 12th section of the Mississippi Acts of 1822, as found in Howard ..& Hutchinson’s Revision, p. 373, 374.
   Mr. Justice Teottek

delivered the opinion of the court:

1. The objection to the sufficiency of the evidence, is urged principally, on the ground, that the form of the notice to Chew-ning, is not stated, and it does not therefore appear that proper notice was given. The notice was personal, and given on the day of the demand for payment; and hence we take it to be a fair inference,' that it was of the character usual in such-cases. From the connection which the statement has with the previous statements of the witness, it is unwarrantable to draw any'other conclusion, than, that the notice thus given, was of the demand of payment, as stated in the testimony; of non-payment, and that the endorser’.to whom it was communicated, would be held liable. It would be absurd to draw any other inference. Can .it be supposed for a moment, that an application for a new trial after a general verdict finding the defendant liable, upon this evidence, would be set aside ? ’ The judgment of the court must stand on as firm ground. For it is a general rule, that on a demurrer to evidence, the court will infer such facts as the jury would have done had the cause been left to their decision. 1 J. R. 241. 4 Cranch, 219. And every thing is to be considered as admitted, which a jury might reasonably infer. 5 J. R. 29. 2 Caine’s Rep. 134. 3 Binney, 457. Besides, it has been uniformly held, that no particular form of notice is necessary. ■ And though it-be irregular, or^even vary in some particulars from the true state of the facts, yet if it be sufficient to put the party on inquiry it is good; and the question, whether it have that tendency, is one, which must in all cases, be determined by a reference to the accompanying circumstances. Mills v. Bank of the United States, 11 Wheat. 431. In the case in 9 Wend. 280, the notice misstated the amount of the debt, and yet as it appeared that there was no other note in the bank in which the party was concerned, and from the other facts in the case that he could not be misled, as to the identity of the paper, he was held liable, and this appears to be the settled rule. 2 John. C. 337. 3 Wend. 456. There is nothing in the testimony to show that the demand of payment was not regular. The statement that the note was all the day at the Planters’ Bank, must be taken in connection with the additional fact that it was presented at the Commercial Bank, which modifies and explains the statement, and renders its meaning too obvious to need any observations.

2. The objection, of the want of title in the plaintiff, has no foundation in the law as it now stands both in England and this country. For though the endorsement is in blank and was not filled up to the plaintiff, it makes no difference. It is true that a different doctrine at one time prevailed in England, but it is now settled that an endorsement in blank, in itself, constitutes a complete and perfect transfer of the interest in the bill, and without the addition of any other words, will vest the right of action and all other rights in the transferee. Chitty on Bills, ed. 1839, p. 255. It is prima facie, a transfer of the interest to the holder, andas such, must prevail until the contrary be established. Ib. 19 Ves. 229, 232. In Louisiana it has been held that the holder of a negotiable note, by blank endorsement, may maintain a suit upon it without filling up the blank. 2 Miller’s Louisiana Reports, 192. The case of Day et al. v. Leyon, 6 Harr. & John. Rep. is in conformity to the earlier decisions in England, but cannot be recognized as authority, since the change which has taken place in the law on this subject. It is not supported by principle, or any modern authority.

The judgment must be affirmed.  