
    Daniel E. Estell against David Vanderveer.
    in case.
    Count, on 6theDecem-ber, payable and^ayment demanáed_ 1st ¿ultyUy’ 1S
    ^Demand^not uary, due lgenee is not
    
    Conrt must infhe lawUI
    
    THIS cause came before the court, on a writ of error, ^ie Common Pleas of Burlington, which brought up three bills of exceptions. The first, then, because the cour^ did not nonsuit the plaintiff. The second, because the court did not charge as defendant requested. The third, because the court would not charge at all, when requested. The suit was commenced on the 6th of April Ewing, attorney of plaintiff in error. Neale, attorney of defendant.
    *The declaration sets out, that 8. W. Blackwood, on the December 1813, made a note to Estell to pay him, or order, ten days after date, $111.49 ; that Estell endorsed it, on the same day, to Vanderveer, of which endorsement Blackwood had notice, on the same day; and avers that after ten days, viz. on the 1st of January 1814, he presented the note to Blackwood for payment, but he refused, of which Estell, the same day, had notice.
    The second count, of the declaration is for $111.49, for money had and received ; damages laid at $300. There was verdict and judgment for $136.17.
    The note was read to the jury, without objection, in the following words : “ Evesham, 6 Dec. 1813. Ten days after date, I promise to pay the order of Daniel E. Estell, one hundred and eleven dollars, forty-nine cents, without defalcation, value received. Samuel W. Blackwood.” Endorsed, “ Pay the within note to David Vanderveer. Daniel E. Estell.” After which Blackwood was sworn, and testified, that he gave the note, for money due to Estell, and had never paid it. He became embarrassed in 1814, and could not pay his debts, or this note, at the middle of 
      March, in that year. lie had been a merchant, and sold his store in December 1818, and paid some debts after that ■ time ; and held out to his creditors, that he could pay ; and it was not known to them or the public, that he could not. He was not insolvent when the note became due, but was afterwards put in confinement, upon a suit on it, and took the benefit of the insolvent laws in May 1815. After it became due, Estell asked him for the money, and said, he had the note, but did not shew it; he expected to collect some outstanding debts, and promised to pay Estell, about the 25th of March. Soon after this, Vanderveer wrote to him, that he had the note; and in the latter part of January 1814, Vanderveer demanded payment. As much as twenty days after this, he called on Estell, told him he was unable to pay, and asked for time to pay; and Estell said he had no doubt but Vanderveer would wait, and made no objection to his waiting. Estell lives in Philadelphia; Vanderveer in Moore’s- Town, nine miles from Philadelphia; Blackwood, in Evesham, four miles from Moore’s- Town, and twelve from Philadelphia.
    
    After the plaintiff rested, the defendant demanded a nonsuit, which was refused. He then prayed a charge, that the plaintiff *had not proved the exercise of due and-legal diligence, and that the evidence was not sufficient to authorize a recovery: which charge, the court refused to give. He then prayed a charge as the court apprehended the law to be ; which was refused. These several opinions of the court, and the alleged defects of the declaration, were the reasons assigned for the reversal of the j udgment.
    
      Ewing, for plaintiff in error.
    The declaration offers abundant proof of error. Upon that, plaintiff has no right to recover. The action is by endorsee against endorser. The note is dated 6th December 1813, payable in ten days. It became due the 16th and 19th. It was presented for payment on the 1st of January, eleven days after the day of payment. Plaintiff has, therefore, shewn, on his declaration, a gross and fatal neglect, and that lie had no right to recover. Pen. 916. 2. The declaration is radically defective, because it does not state a promise by endorser to pay, after demand on the maker, and notice to the endorser; that is, after his liability arose. 3. The bills of exception furnish matter for reversal. Due diligence is not proved. The demand, if it may be called a demand, was not in season,; it was the latter part of Jan. though the note became due the 19th of Dec. and they reside near each other. The holder gave time, to which the endorser did not assent: and no notice was ever given to Estell, by Vanderveer; to endorser, by the holder. 4. These points are questions of law, on which the court refused to express the opinions requested. 5. They also refused to express any opinion.
    
      M’llvaine, in answer.
    This case depends on facts and principles, not found in Ferris v. Saxton, or any other case. 1. The drawer was insolvent, and unable to pay his debts, when he drew the note. 2. The payee did not call on him, until some time after it was due. 3. It was endorsed after it was due, and dishonoured in defendant’s hands, by refusal of payment. 4. No precise dates are proved, but it is manifest, that the note was not endorsed, the demand made, or notice given, until January. The want of precision in the dates, makes it the province of the jury, not the court, to decide.
    Under these facts, it was not necessary to give notice to Estell. The effect and object of notice, is to warn the endorser; but the note was dishonoured in his hands, and, therefore no warning *necessary. There are cases, requiring notice, where the endorsement was after it was due, but none after it was dishonoured by refusal of payment. Espin. 84, 102. 1 Bay. 331. 1 Yeates 361-2-3. Again: there was some proof, of notice from Vanderveer to Estell. What took place between Estell and Blackwood, in January, shews that Estell had seen and conversed with Vanderveer. Of this evidence the jury are to judge. 2 John. Ca. 337. South. 19. 2 Amer. Dig. 19. Again, Party entitled to notice, may waive it, or accept a different notice: and the conduct of Estell shews that he did this. On this, too, the jury is to pass. Chit. 252-3.
    Upon the declaration, it may be remarked, 1. That the note was assigned in January, and, therefore, it is in consonance with the fact; and the jury were to determine, whether, under that fact, there was a right of 2. The date is altogether immaterial. Chit. 366, 535. Esp. 268. Doug. 514. 2 John. Ca. 52.
    To the objection, that the declaration does not state a demand and promise to pay, after the liability arose, it is answered, 1. It contains a count for money had, &c., and the action may be sustained on it. Plead. Ass. 23, 24. Chit. 374-6-9. 2. This defect is cured by the verdict. 1 Saun. 225-8.
    As to the refusal to charge. It is denied that there is any case in England, or this country, where such refusal is established ground of error; (South. 125) nor in our judiciary establishments, is it expedient, that there should be. Besides, in overruling the nonsuit, the court had expressed its opinions, and was not bound to do it again.
    
      Ewing, in reply.
    This case is supposed to form an exception, to the doctrine of diligence, which is admitted by defendant’s counsel, in its fullest extent. The grounds of the exception, claimed, are to be examined. 1. As to the insolvency of the drawer. The law is directly the reverse of what is laid down. Demand on an insolvent drawer, is necessary. See Pen. 982. Chit. 225. Besides, this fact, if relied on, should have been unequivocally proved: whereas it is not proved : it is left in doubt. Blackwood, paid some debts in January, and might perhaps, have paid this, if demanded. Under the circumstances, if the law was as defendant says it is, the court ought to have charged, in reference to this fact. 2. It is said, that the note was endorsed after it was *due, and therefore the law requires no diligence to charge the endorser. There are several replies to this. 1. If true, defendant cannot avail himself of it; he has declared on a note, endorsed, before due, he cannot support his declaration by a note, endorsed after due; but if such were proved, he should have been nonsuited, or the jury charged to find for the defendant. There is a solitary case, in 1 Camp. 139, which seems to support the idea contended for, by the defendant in error; but it is a nisiprius dictum, merely, and is so inconsistent with principle as not to be worthy of regard. If the position be correct, then the difference is most snbstantial. If the note be endorsed before due, you must use due diligence; if after due, no diligence. 2. There is no proof that the endorsement was made after due: it is without date, and therefore, the law presumes it was, at the date of the note. And there is nothing to rebut this presumption. At the worst, it is but doubtful. That Estell called on, and asked, Blackwood for the money, is consistent with an endorsement before it was- due. 3. The law is not, that a note, endorsed, after due, requires no diligence. No case in the English books, has so decided. Even in the case in Campbell, an excuse for the want of notice, is given. The general expressions gathered from the books, by the adverse counsel, do not support his doctrine. What if the endorsee takes the bill on the credit of the endorser ? Does this absolve him from looking to the drawer ? Such an endorsment, is a bill drawn on the maker; and if so, diligence must be used. Such bills are, in fact, generally taken on the credit of the drawer. The cases relied on, are neither of them sufficient for the purpose. 1 Bay. 331, is of no authority, and is decided on its peculiar circumstances; and 1 Feotes 361, is not in point; while in New-Fork, the law has been settled directly the contrary. 9 John. 121.
    3. But if the law did absolve the endorsee, from diligence, Still he could not recover; he gave a credit to the drawer, to the 25th of March, and before that credit expired, he became avowedly insolvent. Now, when the holder, gives credit or time, to the drawer, he discharges the endorser.
    As to the idea, that Estell, waived notice, there is no evidence; and if there were, still, with such waiver, promise to pay, must be proved. On all the points the charge of the court was necessary.
    *The declaration itself, must stand, without the aid of the case, and it is faulty on the face of it. If there were circumstances of excuse, for the want of diligence, they should have been stated, and put in issue. The money count alone, as between endorsee and endorser, never can be supported; but if it could, this count is for $111.49, the verdict for $136; 'which is fatal»
    
      
      а) What is proof of due diligence. Ferris vs. Saxton, 1 South. 1. Stout vs. Stevenson, 1 South. 182. (a) Ribble vs. Jefferson, 5 Hal. 139. Winans vs. Davis, 3 Har. 276. Perry vs. Green, 4 Har. 61. Shipman vs. Cook, 1 C. E. Gr. 251. Insolvency of maker does not excuse demand and notice. Snyder vs. Findley, Coxe 78. Oliver vs. Munday, Pen *982. See Sanderson vs. Crane, 2 Gr. 506.
      
    
    
      
      
        Broadwell vs. Nixon, 1 South. 362. (b)
      
    
   Kirkpatrick O. J.

This is an action by the endorsee against the endorser, of a promissory note. The plaintiff, in his declaration, sets forth, that one Blackwood made the note in question, to the defendant, Estdl, dated December 6tli, .1813, payable in ten days after date, for $111.49 ; and that before the day of payment, to wit, on the day of the date thereof, Estell endorsed it to him. And he then expressly avers, that after the end and expiration of the ten days, appointed for the payment thereof, to wit, on the lsf January, 1814, he presented it to Blackwellfor payment, which was refused.

The plaintiff cannot maintain his judgment upon this declaration. He has set forth in his declaration, that the note was endorsed on the day of its date, and having done so, it was essential that he should have gone further ; that he should have set forth, also, and likewise proved, at the trial, that ho had demanded payment of the maker, when it became due ; that the same had been, refused, and that he had given notice of such demand and refusal, to the endorser. Instead of that, he expressly declares, he did not present the note for payment, till January 1, 1814, ten days after its maturity; nor does he allege, that even then, he gave notice of such demand and refusal to the defendant.

He would have excused himself at the trial, from this necessity, by alleging, contrary to his declaration, that the note was really and in truth endorsed, not on the day of its date, but after it became due, and that therefore, he could not make such demand and give such notice. The court below, permitted him to give evidence of this fact, and'there was a bill of exception taken, which is one of the grounds assigned for error here.

It was certainly a mistake, to permit the plaintiff to prove a train of facts, directly in the face of his own declaration. This was the very pivot upon which his right oí action turned ; and to suffer him to set forth one thing in his declaration, and to prove directly the reverse at the trial, would be breaking down the *whole theory of pleading; it would be taking tlie defendant unaware, unapprized of the complaint against him, and of course unprepared to meet it.

Both because the declaration does not contain a lawful of action, therefore, and because the court admitted unlawful evidence,

Let the judgment be reversed.  