
    Henry C. Wright, Defendant in Error, v. William Truesdail, Plaintiff in Error.
    
      Bonds and Notes — Practice.—’110 question of law saved for the consideration of the court.
    
      Error to Warren Circuit Court.
    
    
      E. A. Lewis and L. J. Dryden, for defendant in error.
    
      J. C. Moody, for plaintiff in error.
    This is an action brought by Wright, the holder, against Truesdail, the endorser, of a negotiable promissory note made by one Woolsey. There is no allegation in the petition that payment of the note was demanded at any time, or that Truesdail was ever notified of its non-payment. To cure this, it is charged that Woolsey was insolvent from the maturity of the note, and that a suit against him would have been unavailing. This is no excuse for the want of a demand and notice. (See Davis v. Eranciscus, 11 Mo. 572 ; Story on Promissory Notes, § 203, &c.) The writ was served by copy, and no answer or demurrer was filed, and it is manifest defendant knew nothing of the suit until after judgment and the court below had adjourned. The error is on the face of the record. The judgment below ought, therefore, to be reversed.
    The petition was as follows : “ Plaintiff states, that on the first day of January, 1861, James H. Woolsey, by his promissory note, hereto attached, promised, for value received, to pay William Truesdail the sum of four hundred and sixty dollars, twelve months after the date thereof; that after-wards the said William Truesdail assigned by endorsement and delivered said note to the plaintiff in this suit. Plaintiff states, that at the time of the maturity of said note the maker thereof, the said James H. Woolsey, was so insolvent, that a suit against him would have been unavailing; that he has continued so insolvent, and is a non-resident of this State. Plaintiff, therefore, prays judgment against said William Truesdail, for said sum in said note specified, and interest thereon, and costs of suit.”
   Bay, Judge,

delivered the opinion of the court.

This was a suit by the endorsee against the endorser of a promissory note, but it does not appear from the face of the petition whether it was negotiable or not. Judgment was rendered by default. The record does not show that a motion was made to arrest or set aside the judgment, nor was any bill of exceptions filed in the cause. No question of law is saved for the consideration of this court.'

Judgment affirmed ;

the other judges concurring. 
      
      
         The petition, it will be observed, upon its face sets forth a good cause of action against the assignor of a non-negotiable note; as for the purpose of the suit, it is presumed the petition sets out the note according to' its legal effect» There was, therefore, no error apparent upon the face of the record. — Bm?-.
     