
    James Allwood v. John Haseldon.
    The indorser of a promissory note payable to bearer is liable in fiptfSsimS manner as the indorser of a note payable to order, aüSFmay be declared against accordingly as indorse^. ■'
    To charge the indorser of a note indorsed after it became due, a demand musk be made upon the maker, and notice of non-payment given to file indorser^., with all convenient diligence.
      
       The commencement of á suit against thd maker, within a few days after the indorsement, and of another against the indorser, more than twelve months afterwards, and after the maker had been sued to insolvency, are not sufficient to charge the indorser.
    The insolvency of the maker, although known to the indorser, supersede the necessity of demand and notice, even in.the cal indorsed after due.
    A knowledge by the indorser, of the pendency of a suit upon thd not<?l the maker, does not dispense with the necessity of ex.pi'easyfeStic, indorser by the holder, although the note was indprsfe^^^i become due. vide Benton v. Gibson, 1 Hill; 56, contra. *
    A declaration by the indorser, to a tlurd‘perstfh¡ that he tvpirid g&j without suit, is no waiver of demand and notice. A promise to pay, the holder has been guilty of laches, will not bind the indorser, um^Sm the holder, or his agent; nor unless it appear to have' been,.ujatle with a full knowledge, both of the fact, that due diligence had ndt^ben used, ajd that, in law, his liability was thereby discharged. q>i(le J&vey %Wilburj 1 Bailey, 453, ■ , * *
    Tried before Mr. Justice Gantt, at Marion, Spring* , 1831,
    This was an aetion of assumpsit upon a promissory note of James Pouncey, dated 4th March, 1828,and payable one day after date to fhe defendant, “ or bearer,” which was indorsed by the defendant to the plaintiff within a few days after it became due. The plaintiff immediately afterwards, to wit, on the 12th March 1828, brought suit against the maker, Pouncey, in Marlborough Disj trict, obtained judgment in due course, and issued a ft. fa,, which was returned nulla bona; after which this action was brought against the present defendant. The plaintiff gave in evidence an exemplification of the record in the proceedings against she maker. He then examined Col. Legget, who testified, that the defendant informed him, he had indorsed the note, and that suit had been brought upon it against Pouncey. The same witness further stated, that in a conversation with the defendant, he said to the latter that he would have to pay the note, and that he had better do it without suit: to which the defendant replied,, that he would.
    
      fide Galpin 39* ’ *
    Here the plaintiff closed, and the defendant moved for :i non-suit, on the grounds : I. That the note was payable to bearér, and the plaintiff had declared against him as indorser. 2. That there had been no sufficient evidence, either of a demand upon the maker, or of notice to the defendant, to charge him as indorser. The presiding Judge ruled, that the • defendant was liable as indorser, and that his liability was therefore properly laid in that character; and that the evidence adduced was sufficient to charge the indorser, where the note was indorsed after it had become due. The motion was therefore refused, and the jury, under the charge of his Honor, found for the plaintiff.
    The defendant now moved to set aside the verdict, and renewed his motion for a nonsuit, on the grounds relied on in the Court below.
    Ekvin, for the motion.
    Moses, contra.
    
    
      
      
         The time, withjjj|wliich payment must be demanded of the maker, in drder to charge the indorser, in the cas'e of anote indorsed after due, is “a . toattei»jOf uncertainty? depending upon all the various circumstances, of the ease? JShrery long indulgence might, under some circumstances, be regarded as pefle’cfoy consistent with the condition, that due diligence should be used; whilst, under others, the delay of a few days might justly be considered unwarrantable, and subject the holder of the note to an entire loss.” Brock v. Thompson, 1 Bailey, 323. And see oh this subject the late ease of Benton v. Gibson, 1 Hill, 56. R.
    
   Johnson J.

delivered the opinion of the Court.

The case of Brush v. Admors. of Reeves, 3 Johns. 439, is decisive of the first ground : and the rule there laid down is distinctly recognized in Eccles v. Ballard, 2 M’C. 388. If the payee of a note payable to himself, or bearer, indorse it, he may be sued as indorser, in the same manner as if it had been payable to him, or order.

In relation to notes indorsed before due, it is conceded, on all hands, that to charge the indorser, it is incumbent on the indorsee, with all convenient diligence, to demand payment of the maker, and, if payment is refused, to give notice of it to the indorser, with the same degree of diligence. But I was myself disposed to think, and so expressed myself in the case of Poole v. Tolleson, 1 M’C. 202, that demand and notice at any time, was sufficient, in the case of a note indorsed after due, unless the defendant could show that the debt had been lost by the neglect of the holder: and that notion is favoured by the case of Hall v. Smith, 1 Bay, 330. The subsequent case of Stockman v. Riley, 2 M’C. 398, I have always, however, regarded as settling the question definitively; and the case of Ecfert v. Des Coudres & Co. 1 Mill, 69, is to the same effect. All the rules, applicable to a note indorsed before due, applv with equal force to one indorsed after due : and however I may distrust the correctness of the conclusion, I have uniformly acquiesced in it, upon the principle, that, as a mere rule, it is more important that it should be fixed and permanent, than that it should have been correctly settled ; for there is no inconvenience in conforming to what it requires.

In the case before us, the commencement of a suit against Pouncey, the maker, within a few days after the transfer of the note, is the only circumstance relied onto prove the demand; and the suit against this defendant as the only notice of nonpayment. Of all the modes of demanding payment, a suit for the recovery of it would seem to be the most unequivocal: and the object of the notice to the indorser, being to apprize him, that he will be looked to for payment, is, I think, sufficiently attained by a suit against him. But — waiving the objection, that notice to the indorser, being necessary to fix his liability, must precede the commencement of an action against him to enforce that liability — it does not follow, that a suit against either the maker, or the indorser, is evidence of a demaud in the one case, or of notice in the other, at the time when the writ was lodged in the sheriff’s office ; for unless it is served, the defendant may forever remain ignorant of it. Nor is it evidence of notice at the time when the writ was served ; for writs in assumpsit are general, and do not contain a specification of the cause of action : and if the plaintiff choose to conceal it, the defendant can never know the precise cause of action until the plaintiff declares, anfi the defendant is called on to plead. In the case of Poole v. Tolleson, (supra) I remarked, that the acceptance of the service of the process was sufficient evidence of notice: but that was upon the ground, that one would not likely accept service of a writ, without a previous inquiry as to the cause for which he was sued.

®WeJohnson 480’iBai"

The report does not state at what time the writ against Pouncey was served upon him, or when the declaration was filed ; whether plea was put in, or at what time: and it is equally silent as to the time of the commencement of this suit. But without adverting further to the legal proceedings in either case, it will be sufficient to remark, that more than twelve months must have elapsed between the commencement of the action against Pouncey, and the return of the fi. fa. ; and even if the commencement of that action could be regarded as a demand, and the service of the writ on the present defendant as notice, the plaintiff was guilty of negligence, for it does not appear, that the writ was served until after the return of th eft. fa.

The insolvency of "Pouncey, manifested by the return of nulla bona on the fi. fa., is relied on as superseding the necessity of demand, or notice. The cases of Edwards v. Thayer, 2 Bay, 217, and Esdaile v. Sowerby, 11 East, 114, are express upon this point. The insolvency of the maker, although it was known to the indorser, does not dispense with a demand and due notice. An exception seems to have been allowed in De Berdt v. Atkinson, 2 H. Bl. 336, where the indorser lent his name to the maker, knowing at the timé that he was insolvent. But the authority of that case is shaken in Smith v. Becket, 13 East, 187 ; and the cases cited in note 1, Day’s edition, show, that it is not now law either in this country, or in England.

The fact that the defendant knew of the pendency of the suit against Pouncey, did not dispense with notice from the plaintiff, The leading object of notice is to inform the indorser, whether the holder intends to rest on his rights against the maker, or to resort to him for payment. Tindal v. Brown, 1 T. R, 169. This cannot be attained by mere casual notice ; it must come from the holder himself. Nor is the reliance placed on the declaration of the defendant to the witness Legget, that.he would pay the note without suit, o'f more avail. The indorser may, it is true, waive a demand and notice, and will be bound by a promise to pay, with the knowledge of the fact, that they have been neglected. But this is a mere loose declaration to a third person, having neither interest nor agency in the matter, made, probably, in ignorance of the fact, that there had been no demand, and, vet more probably, in utter ignorance, that, in \ " , , . point of law, either demand or notice were necessary.

I am therefore of opinion that the plaintiff failed to support his action, and that a nonsuit ought to be granted; and it is so ordered.

Nonsuit.  