
    CONSTITUTIONAL COURT, COLUMBIA,
    APRIL, 1807.
    Clark v. Administratrix of Minton.
    In an action against the indorser of a promissory note, it is hot hécessáry to prove a demand of, and due>diligence to obtain, payment from the maker, if the maker has been declared a bankrupt before the note was payable, or was notoriously insolvent; nor is it necessary, in such case, to give notice to the indorser, pf the indorsee’s intention to resort to him, within a reasonable time after the note becomes payable.
    Assumpsit by the indorsee of a promissory note against the in-dorser, tried before Brevard, J., in Kershaw district. The note ■was made by N. Douglass, payable to David Minton, on the first of -^Pr*l’ 1802, and was dated tenth of September, 1800. It did not ap«-pear when the plaintiff received it, but the indorsement was filled up, dated 10th September, 1800. The declaration was ia the usual ^orrn’ stat'ng an application to the maker by the plaintiff for payment, when the note became due, and bis refusal to pay; and also notice to the indorser, Minton, in his lifetime.
    On the part of the plaintiff, it was proved, that the maker, Douglas, became insolvent, and was declared a bankrupt the 9th November, 1801. That he departed from this State, in a vessel bound for Liverpool, in February, 1802. That he landed in Jamaica, where he has remained ever since ; and that he was reputed to be insolvent from the time of his departure from this State, and generally known and understood to be so, while in this country, soon after the making of the note, and after his being declared a bankrupt. The maker’s signature, and that of the indorser, were proved ; but no evidence was given of a demand of, or due diligence to, obtain payment from the maker of the note, or of any notice to the indorser within a short time after the note became due, of the non-payment, and of the indorsee’s intention of resorting to him for payment.
    Branding, for the defendant,
    moved for a nonsuit, and contended, 1. That the plaintiff had failed to prove a material allegation in his declaration, namely, the presentment of the note to the maker of it, for payment, his refusal to pay, and notice to the indorser. 2. That although it had appeared in evidence, that in the month of June, or July, 1803, the plaintiff had given notice to the indorser, that the note was not paid, and had demanded payment from him, yet this was not proof of reasonable notice ; and there was no evidence of the use of diligence to obtain payment from the maker; and as the question of reasonable notice was a question of law, which it was the province of the court to determine, it ought to b© decided by the court in favor of the defendant.
    The motion for a nonsuit was overruled, and the plaintiff obtained a verdict in pursuance of the judge’s direction, which was, that as it appeared that Douglas was notoriously insolvent, and had been declared a bankrupt, some time before the note was payable, and had left the State soon after it was payable, in insolvent circumstances, bound for a foreign and distant country, that it was not incumbent on the indorsee to prove any demand of, or diligence to, obtain payment from him ; because there was no prospect, or likelihood, that such an attempt would have succeeded. There was no probability that it would have availed in any degree; and as- to notice to the indorse^ he considered that as unnecessary, for two reasons. 1. Because it was probable he was acquainted with the insolvency of the maker before the note became due. 2. Because, if notice had been given of his insolvency, or of his having ab- , , , . , & ,, , , ,. , sconded, the indorser could have derived no benefit or advantage from it. With regard to reasonable notice being a question to be determined by the court, the judge observed, that notwithstanding the reasonableness of notice is a question of law, after the facts are established, yet the facts and circumstances of the case, relative to notice, as the length of time, and tile distance of the parties, are questions to be left to the jury ; and in this case it was a mixed question of law and fact, which was proper to go to the jury. Douglas resided in Charleston, and Clark in Camden, when the note became due. Douglas had left the State soon after the note became payable, and with regard to the failure of proof to support the allegations in the declaration, as to a demand, refusal, and notice, the judge said, that in general, it is necessary to state and prove these circumstances, or prove what is equivalent; but that in the present case, it was not necessary to state, but prove equivalent tacts. The plaintiff had given evidence, which had not been objected to, and that excused the want of notice and evidence, which it is not pretended the defendant could have rebutted.
    The jury found a verdict for the plaintiff. Motion for a new trial in this cou'rt.
    Blakdiwg, in support of the motion,,
    quoted Chitty on Bills, 239, 88. Known insolvency will not excuse the want of notice ; notice may be useful to the iqdorser. By pressing his debtor in time, his friends may be urged to relieve him, or'he may have other means of payment. Notice from any other quarter, than from the party who intends to resort to the indorser for payment, is insuffi. cient. 2 H. Bl. 612. It is better to adhere to the known rules of law, however harsh, than to relax them. The plaintiff ought to have declared according to the truth of the case. Having averred a demand on the maker, and notice, he was bound to prove the averments as laid. Doug. 683. Though there are several counts in’the declaration, yet the verdict is general, and there is no count according with the truth of the facts as they appeared in evidence. The evidence proves a case different from the case stated in the declaration.
    Richardson, for the plaintiff
    Notice, under the circumstances of the case, was unnecessary, as the maker was known to be a bankrupt. It was unnecessary to have alleged this in the decía-ration; it is mere surplusage, and there 'fras no necessity to prove it.
   Waties, J.,

declared the resolution of the whole court. First, as to the form of the declaration, and the variance of the proof from the allegations. The judges entertain doubts, whether the statement of the case ought not to have been correspondent to the truth of the facts given in evidence; and, if it were necessary, would postpone the decision of the case till this question could be more fully investigated; but if a new trial were to be granted on this ground alone, the court might give the plaintiff leave to amend her declaration ; or, if a nonsuit should be entered, the plaintiff might recover in another action, or file a new one, and no end of justice would be answered by granting a new trial; therefore we are all of opinion the verdict ought not to be disturbed.

''Secondly: as to the necessity of demanding payment from the maker of the note, or using due diligence for that purpose, and of giving reasonable notice to the indorser of the nonpayment of the note by the maker, we are all of opinion that the strict rule of law was properly dispensed with in this case. It has been decided in our courts repeatedly, particularly in the case of Kiddell v. Pe-ronneau, determined in Charleston many years ago, that a known bankruptcy, or insolvency, shall be equivalent to a demand and notice, though the contrary seems to have been determined in England. But we are not bound by the English decisions, unless they appear to us to comport with reason and justice. There can be no good reason assigned why the indorser should have notice, or that payment should be demanded, or any diligence used, to procure payment from the maker, if he has been publicly declared a bankrupt, or if he be notoriously, and beyond dispute, insolvent. What possible end could it answer ? It has been said the indorser might, by timely notice, take steps to obtain payment, by some extraordinary means, from the maker, who might find some other way to pay the debt than out of his own funds, by the assistance of friends. But surely no such extraordinary means of satisfaction ought to be expected or required. The English judges appear to be sensible of the unreasonable rigor of the rule which has been established- in their country, and sometimes lament that they are not at liberty to depart from it; at least, it would so seem from some expressions which have escaped, on some occasions, in cases determined by them. As in this country we have already relaxed the rule, and qualified it according to reason and the principles of justice, we are not disposed now to reinstate it in its former rigor.

Motion discharged.  