
    MULLEN vs. PRYOR.
    1. A plaintiff is not bound to prove moro than ho asserts in his declaration ; if his declaration is insufficient, the defendant should demur or move in arrest of judgment.
    2. In a suit instituted by an assignee against tho payee of a promissory note, if tho assignee proves tho maker to bo insolvent at the timo of its maturity, his insolvency will bo presumed to continuo until tho contrary be shown.
    ERROR TO ST, LOUIS CIRCUIT COURT.
    STATEMENT OF THE CASE.
    Goorge M. Pryor, brought suit against Win. J. Mullen, in the St. Louis eiicuit court, at its April term for 18-18, on a non-negotiable note, drawn by one Urbin E. Fort, payable to tho ordor of said Pdullen, bearing date December 12th, 1840, payable oup day afterdate, and assigned to said Pryor on the 15th Dee., 1840, for the sum of two hundred dollars.
    The plaintiff at the trial, read in evidence depositions of Louis Brown and Ed-ward M. Samuel, taken at Liberty, Missouri, on 7th March, 1848¡
    Brown testified that he was acquainted with Urbin E. Fort. That Fort was engaged in printing a newspaper in Liberty, Mo. That said Fort had left some years—hut cannot state exactly how long. That ho had an account against said Fort about tho time of his leaving here ; that he presented i-t to said Fort for payment, and that he refused to pay it, because he said he had no money to pay it with ; that his account was small, and was for pasturing a horse. That he never know of his owning any property. Whether tho press with which he printed hispapor was his or not, witness did not know ; nor did lie know what amount of bunincs* ho did, whilst ho was conducting said press; that lie (witness) took the paper printed by said Fort, but his acquaintance with him was not very intimate. That he cannot state what the general impression was in tho community as to Fort’s solvency about tho time Fort left, but that he conversed with a person that he supposed knew most about Fort’s business, who told him that it wa-s not worth while to sue him—that ho could not make any thing out of him by law, ar.d hence ho (witness) did not sue.
    Edward M. Samuel, testified that he was acquainted with Fort—that lie lived in Liberty, Mo., in the year of 1839 and 1810, and was engaged in publishing- a newspaper there—thinks it was tho tl Western Star.” That ho had considerable business with the office in which ho worked. That said Fort executed his note to Samuel and Arthur (of which firm witness was a partner) in tho month of Feb.; 1840, and he did- not think it worth while to try and force payment of said note whilst said Fort remained in Liberty. He did not think it could have boon made out of him by law. Witness regarded him as insolvent, and that a suit at law would have been unavailing That said Fort removed from Liberty, and thinks to the best of his recollection, s -id Fort removed in the latter part of the year 1840, and witness did not know where ho had gone to. That he was (at the time of testifying)- of the impression that from the time of the execution of the note in the case referred to, payable to Samuel and Arthur, to tho 16th Doc., 1840, the money could not havo been made out of said Fort by suit at law. That witness was notawaro that said Fort, on the 16th Doe., 1840, had any visible moans of paying his debts; that he never knew of his (F.) having any property of any kind whilst a resident of Liberty ; lie thinks the newspaper press he used, was owned by a 11 stock company ;” that he (witness) docs not know whore said Fort lives, nor has he known where his placo of residence was since he loft Liberty. On cross examination said witness said that lie (witness) was a meiehant at the timo alluded to in his examination, in chief, and dealt in merchandise, &C-, and was what is commonly called a dry goods merchant. That he was not a printer by trade and never was engaged in the printing business; his impression is that said newspaper was published in the name of Mulienj & Fort. The Fort of said firm is the same with that above referred to ; that said Fort was a practical printer ; that ho has no certain recollection when Mullen left the said firm, but thinksit was in 1839 ; thinks that Fort continued to publish tite said newspaper after Mullen left, but doee not recollect how long. He does not think Mullen & Fort owned any part of the press;, that Mullen was a practical printer. That the note held on Fort by Samuel & Arthur is for fifty dollar? -one dollar of which is paid in May 1840. He does not know theamouutof subscription to said paper, but thinks said firm did afino business for the period, that Mullen dp Fort owe him nothing ; that in stating that Fort had no visible means of paying his debts, witness bad no allusion to any accounts that ho may have had on his books. That he never brought suit on Fort’s note to Samuel & Arthur. Witness does not recollect of ever having known any execution against Fort being returned “ not satisfied ;’’ that witness purchased paper—printing paper—for Mulicn & Fort and sold them goods and was often in their office, and that this was what he meant when he said he had “ considerable dealings ” with them—all of which they satisfied except the fifty-one dollars alluded to. That he cannot state posi.ively, but he is of the impression that Fort has been in Liberty since he removed from there as aforesaid—whether he saw him or not, witness does not recollect. That G-. M. Pryor resided within two miles of Liberty in the year 1840, and has ever since resided at the same place. He does not know that Fort owes any other person but himself as above, nor has he heard of his owing others. Ho know nothing about executions against said Fort. His impression is that Fort, if ever in Liberty since his removal, staid but a very short time. Has no idea he ever made his home there since his removal in the latter part of the year 1840. Here the plaintiff rested his ca se.
    Philander Frost, for defendant testified, thathe knew Fort in 1810—thinks he know him in December, 1840 ; that Fort was Jiving in Liberty, Mo., where witness was living. That he (witness) never hoard that Fort was insolvent. That at that time, and during his stay in Liberty, he would have given Fort credit; that lie had dealings with Fort and that Fort always paid him punctually. That Fort had left Arkansas and returned to Liberty sometime in Dec., 1840. Witness did not know where lie was at tho time of testifying. This was all the testimony. Tho case was submitted to the j ury.
    The defendant asked the following instructions, which the court gave:
    “ That if the jury believe that if a suit had been brought against the maker of tho note at its maturity, any amount could have been recovered against him which would have made it worth a suit so proceed against him, then the verdict must be for the defendant.’’
    “ That to make the defendant in this action liable, it must be proved that a suit against the maker would have been substantially useless and unavailing,”
    “ That if the jury shalllbeliove that at the time of the maturity of tho note, the maker was in doubtful circumstances, but not utterly insolvent, then it was tile duty of tile plaintiff to have instituted a suit against him at the first term of the court after its maturity, and in that case, not having done so, he cannot recover in this action.”
    The defendant also asked the following instructions, which the court refused to give :
    “ Unless the jury believe from tho evidence that Urbin 15. Fort, the maker of the note sued on was from the 15th day of December, 1840, to the time of the commencement of this suit, soinsolvent that a suit against him would have been unavailing, they ought to find tortile defendant.’’
    “ The plaintiff in this action cannot recover unless he proves that the maker of the note was so insolvent that a suit against him at any time before the commencement of this suit would have been unavailing; ”
    “That the assignor of the defendant in this action is not to b& regarded as a security; that he is only responsible on a contingency, and that the holder of such a note as that given in evidence iu this caso cannot, by deferring to make a demand for years, still hold the assignee responsible.” That the plaintiff in this action having failed to make any legal demand upon the maker, and having waited more than soven years without proceeding against him, hag shown no such diligence as will entitle him to any recourse against the defendant.”
    “ That in order to a recovery in this action, the plaintiff must prove the insolvency of the maker at all timos from the maturity of the note up to the institution of tho suit.”
    “ That if the jury shall believe from the evidence that the maker of the note was in doubtful circumstances, hut not utterly insolvent at any time before the institution of this suit, then it was the duty of the plaintiff to have proceeded with the utmost promptitude, and to have prosecuted his suit against the maker with diligence to judgment, and not having done so, he cannot recover against the defendant in this action,”
    The verdict was for plaintiff. A now trial was moved for by defendant and overruled.
    Grace & Carroll for plaintiff in error.
    In this case the defendant ought not to be held liable on the note, unless the maker was insolvent from the time the note matured until suit brought. For it cannot be protended that seven years indulgence shows any diligence, and without diligence, insolvency must be proved. Harris vs. Harman 3 Mo. R. 317.
    The error of tho circuit court consisted in supposing that insolvency at the maturity of tho note on the part of the maker, absolved tho holder from all sort of diligence, and that he might hold on until barred by limitation, without losing his remedy. Surely this is not the law.
    There is no proof that Fort was out of this State since his return in the fall of 1840. If the-circuit court had given defendant’s 2d, 5th, 6th, 7th and eighth instructions, tho verdict no doubt would have been for defendant. And even if Fort was out of this State, the plaintiff was hound to have sued him wherever he was, or prove that such suit would have been unavailing. Myers vs. Miller 3 Mo. R. 402. In the case of Pocock vs. Blount, 6 Mo. R. 338, this court say expressly (making tho language of chief justice Marshall in the case of Violctt vs. Patton, 5 Cranch 142, their own,) “it therefore would have been proper to leave it to the jury to determine whether it was at any time in the power of the plaintiff to have made the money duo on this note, or any part of it from the maker by suit.”
    Polk for defendant in error.
    1st. It is sufficient to render the endorso? (of a non-negotiable promissory note) liable on his* endorsement, to show that the maker was insolvent at the date of the maturity of the note, so that a suit would have been unavailing against him—-it is not necessary to show that the maker continued so insolvent down to the time of commencing suit. Revised statutes oí 1835, page 105, sec £9.
    2d. In this case, the declaration alleged the insolvency of the maker only at the maturity of the note, and not that such insolvency continued down to the commencement of the suit. And as it can only be required that the proof shall be commensurate with the allegations, it was only necessary to prove insolvency at the maturity of the note. If the plaintiff came short of making a case for recovery, the deficiency was in the declaration, and that defect could be reached only by demurrer or motiou in arrest of judgment and not by instructions on the trial. 2 Tidd' 849 ; Graham’s Prac. 312; Cort vs. Birbeck, Dong_223 ; Safford vs. Slovens, 2 Wend. 158; Sanford vs. Sanford 2 Day 559.
    3d. But oven if tho court had instructed tile jury that plaintiff was bound to prove continued insolvency of maker of the note, the result must have been the same; for it is shown by the verdict that the jury found the maker insolvent under the instructions of the court, at the maturity of the note. Now in the absence of proof to the contrary, being shown to be insolvent at th© maturity of tile noto that insolvency is presumed still to continue. 2 Stark Ev. 688 and authorities there cited. Moreover, the evidence in this case showed that sh< rtly after or about the lime of the maturity of the note, the maker left for parts unknown, and has not been hoard from since.
    4th. That a demand of payment at the maturity of tho note upon, the maker, and notice of nonpayment is not necessary. I’ocock vs. Blount. 6 Mo. E. 338.
   Napton, judge,

delivered the opinion of the- court-

Pryor instituted a suit in 1848, against Mullen, upon a note executed on the 12th Dec., 1840, by one U. E. Fort, and assigned by said Fort to the plaintiff on the 15th Dec-, 1840. The declaration charged the making and assigning of said note iruthe usual way, and avers that when the said promissory note became due and payable, to wit on-the 16th Dec., 1840, the said Fort, the maker, was insolvent, so that a suit against the said maker of the said promissory note aforesaid, would have been unavailing, by means whereof, and by force of the statute, &c., the said defendant became liable, &e. The defendant put in the statutory plea and the parties went to trial. Upon the trial, evidence was given to show that Fort was insolvent when the note assigned to Pryor was due. The defendant called upon the court to instruct the jury that the plaintiff must prove the defendant to have been insolvent at all times, from the time his note fell due until the institution of this suit. This instruction was refused, and its refusal presents the only point assigned for error. We think the instruction was properly refused, because the declaration only averred an insolvency at the maturity of the note, and a party is not bound to pro.ve more than he asserts in his declaration. If the declaration was insufficient, the defendant should have demurred, or moved in arrest.

Would not the fact of a subsequent change in the eondition of the obligor after his insolvency at the maturity of his note is alleged and shown, be more properly a matter of defence 2 It would seem that when the plaintiff shows a state of insolvency at a time, when by law he is bound to sue, if a suit can effect any thing, that state of things will he presumed to continue until the contrary be shown.

Judgment affirmed.  