
    
      SHELMERDINE vs. DUFFY.
    
    Appeal from the court of the first district.
    qitence, and if it render the endorserne-cessaniy liable to pay, die law must determine trlu3tf<flpaci* wh«B, The obliga^ lion resulting from an endorsement, is Í legal eonse-
    Locket, for the defendant.
    The defendant is suet} as endorser of a bill of exchange, of which ° ' the plaintiff is the drawer. It is a ice 11 estab-1 Ijghed rule of Jaw, that, subsequent endorsers ' 1 cann0*- 6ued by any prior parties, urdes--under special circumstances, which must be full;, stated; Chitty on bilk, ed. 1821. 4 Durnford and East, 479, Bishop vs. Hayward. Now, unless those special circumstances have been stated, the plaintiff must fail in his action.
    But it is insisted by the defendant, that this suit is instituted against him,solely, as endorser. and he is sought to líe condemned as such; and ho relies ontheallegaiions.intho plaintiff's petition, to make out clearly this point. The interrogatory also goes to confirm the defendant m this position.
    The plaintiff says, that he ha stated the circumstances,on which the defendant is liable. What are the circumstances? “That the defendant being, previously to the making of said bill, indebted to your petitioner in the amount of said bill, and equally bound to provide for its payment with .-aid Johnson and Heno? &c.” How was the defendant indebted? On bond, bill of exchange, or account? Why or wherefore? He is not informed. I can’t even guess the nature of the plaintiff’s demand. If this suit should be decided against the defendant, he never can set up the plea that the matters and things alleged in the petition have passed in remjudicatam, as it regards all the allegations in the petition, except those which relate to the bill of exchange, on which, in law, he is not liable, being a subsequent endorser.
    In the case of Brown & air s. Richardson, vol. I, 204, it is decided that, “it is not sufficient, that the facts necessary to be stated, to create responsibility in one character, establish liability in another, to authorise this court to conclude. that, therefore, thedotcndaiii ⅞!!⅜ -nod in both." Test the plaintiff's demand and pavilion by this role, and it will fairly result that lie has made out no claim, on the defendant. Strip the petition of all its allegations, except that part, with reference to the hill of exchange, and what cause oí' action remains? None but the loose and vague allegation -that, previously to endorsing the hill, the defendant was indebted, &c.” Can it be concluded,that this averment is within the meaning of our statute, which requires the cause of action, the circumstances of places and dates, &c., to be set out with certainty. Will it be pretended that the petition can stand, or this suit be maintained under the slender and meagre allegations “of the defendant’s being previously to his endorsement indebted, &c.?” Again, in the same case and page of the book last cited,the court say,“everything in a petition, should be plain and perspicuous, and the party sued ought to be clearly instructed, why he is sought to he condemned, mui not left to infer it.from doubtful, obsénfe allegations” “Are we clearly instructed here, why we are Sought to be condemned?” No, for wé'Cannot even infer why or wherefore. With regard to our liability, as a subsequent endorser, we beg ihe attention of the court to the case cited from Durnford and East's Rep. p. 470, which is precisely in point.
    Another ground on which the defendant relics, with considerable hopes of success, is, that the plaintiff being the drawer, and suing as en-dorsee, must allege and prove, that the interest of the payee is vested in him, that he has paid the bill, and that protest was made, and due notice given, &c., vol. 1, 301. There ⅛ no allegation in the petition, that, the bill in question was evet paid by the plaintiff, and the simple possession is no evidence of it. Vol. 1, 304.
    Waggaman, for the plaintiff.
    The judge erred in giving judgtaent against the plaintiffon the ground that tei Action could not be maintained by 4he drawer against the acceptor of a 'bill. Std'rfs ei. ofEhitty on bills, 270 & 1. 2 Philips on evidence, 31. Kid oh hills, 193. 10 “¡Maftin. 3¾.
    ‘2. On the demurrer, there' ought to have been judgment for the plaintiff 13 Johnson„ 402. ZBinney, 457. 4 Cranch, 219.
    3. If the judge was -correct ⅜ Ms opinion, that ihe action was not maintainable, lie erred ... _ . . , , m giving a ima! judgment, it is a hard one, and at most ought to have been but an judgment of non suit.
   Mathews, J.

delivered the opinion of the court. This case was tried in the district court on pleas which the parties denominate a demurer and joinder therein, as taken from the ordinary mode of pleading, according to the rules of practice, under the common law of England. In conformity to the laws and principles, established by the laws which regulate the practice of courts, under our system of jurisprudence, it is an answer to the plaintiff’s petition, by which the defendant admits all the facts, alleged by the former, but denies their legal consequence, as claimed by him. By this manner of pleading an issue in law is formed. Judgment was rendered in the court below, in favor of the defendant, from which the plaintiff appealed.

The suit is brought by the drawer of a bill of exchange, which he alleges was accepted by Johnson & Heno, and endorsed by the defendant for their use, the latter being equally lótmd injustice to pay the amount thereof because he was that much indebted to the plaintiff The bill at maturity was protested for non-payment by the acceptors, and notice thereof given to the defendant as endorser; it was carried back by the payee as holder, to the drawer, who was compelled to pay the amount, with interest and ten per cent damages, ail which he claims to have refunded to him by the defendant. These are the principal allegations contained in the petition. It contains also an interrogatory, which was answered by the defendant, wherein he acknowledged that he did endorse the bill, but denied being indebted to the plaintiff, and that he agreed to become surety for the acceptors.

The court below seems to have based its judgment wholly on this answer, in which we are of opinion there is error.

In the first place, it ought not to have been received in contradiction of the facts, admitted by the demurrer; and secondly, even if should, it does not contradict them so effectually as to secure the defendant from liability. By admitting the act of endorsement, the obligation resulting from it, on * the endorser, is a legal consequence; and if it necessarily render him liable to pay;the amount of the bill, the law must determine in what capacity and to whom . he 3⅛ liable to pay.

The.petition is not so explicit, as it might be in relation to the manner in w hich the appel-lee is sought to be made responsible; but fro® the whole contest, it is tolerably evident that the intention is to charge him as surety for the acceptors. The bill appears not to have been transferred, in the usual course of negociation, according to the custom of merchants. The payee was the holder, when he procured the endorsement of the defendant, which could have no other effect than to impose on him an obligation similar to that of the acceptors, either conjointly with them or as their surety; and perhaps he would be entitled to the privi-■ lege of division and discussion, as provided for by law incases of joint obligations or sureties; but these are privileges which must be taken advantage of by pleading, which has not been done in the present case. Unless the irregular endorsement made by the defendant be considered as a mere nullity, an act without any legal effect,-he ought to be held liable ■ on it to the ■plaintiff; for, his obligation being similar to that of the acceptors, the drawer had a right on ■paying and taking up the bill to pursue . him' lor the amount. But we have held already, in one or two cases, that suco endorseménts are riot without effect; on the contrary that they impose an obligation on the endorsers to pay. See Chitty on bills, Am. ed. of 1821,.p. 440, & 4 Martin, 839.

Being of opinion that the allegations in the petition are sufficient in law, to authorise the plaintiff to recover, and that according to the answer they must, be all received as true; it is ordered, adjudged and decreed, that the judgment of the district court be avoided, reversed and annulled. And it is further ordered, adjudged and decreed, that the plaintiff and appellant do recover from the defendant and ap-pellee, the sum of five hundred and sixty-two dollars and seventy nine cents, with interest thereon, at the rate of five per cent, per arm. from the date of the protest for non payment of the bill of exchange declared on, and also ten . per cent, on the amount of said bill, as damages, with costs, to be paid by the defendant in both courts.  