
    Duncan against M‘Cullough administrator of Findley.
    
      Monday, October 12.
    In Error.
    If the maker ry note°u not when the note becomes due, him of payment is not order to indoiler!1 But itis necessary to prove, eitherademand, gencei in énmakeadS*° mand.
    cumbenton*’ the endorser of a promissory note, to erf'vvhet'e'thé ftmwT!s t0 be
    The time and manner of examining witnesses, is tionof the & whom\he^trial takes place.
    circumstances the Court wdi refuse to permh the plaindence, after the defendant’s counsel addressUthe°
    
      er¡ Whether this Court will reverse for error, in a point in which the law permits the inferior Court to exercise their discretion l
    
    IT appeared on the return of a writ of error to FrankUn county, that this suit was brought by Matthew Duncan, ^ plaintiff in error, against the defendant, as administrator of William, Findley, deceased, on a promissory note for 200 dollars drawn by Stirling Adams, payable to William Find- ^ or or¿er nine months after date, and indorsed by Findley. It was dated at Baltimore, June 4th, 1814. It was not proved, at what place Adams drew the note, but some tjme ¡n t}ie sumtner of 1814, he boarded at Green Village, 7 07 in Franklin county, in this State, at the house of one James M‘Anulty. Before harvest of the same year, he went from ®reen Village to Baltimore, to which place the plaintiff followed him, and got from him several horses, and other property. Adams was seen some time after this, at Baltimore, by one of the plaintiff’s witnesses, but where he ’ J * was when the note fell due, did not appear, nor was there evidence that search had been made for him by the plaintiff. No notice was given to Findley, of the non-payment of the note, before this suit was brought, ten months after the day „r Payment,
    The counsel for the plaintiff, prayed the Court below, to deliver their opinion to the jury on two points.
    1. Whether it was incumbent on the plaintiff, under the circumstances of this case, to prove a demand of payment from t|je drawer of the note,
    2, Whether William Findley was not bound to shew where drawer was to be found.
    . , , To the first question the Court answered, that the plamtiff was bound to prove a demand, or due diligence used for that purpose. To the second question they answered, that it was not incumbent on Findley, to shew where the drawer was to be found. An exception was also taken to the decision of the Court below, in rejecting testimony offered by the plaintiff. The exception, and the facts out of which it arose, will appear in the opinion of the Court, and therefore need not be stated here.
    
      Brown and Crawford, for the plaintiff in error,
    relied on Stewart v. Richardson.
      Bull. N. P. 273. Chitty on Bills, 155. Putnam v. Sullivan.
      
       Hull v. Pitfeld.
      
       Am. Dig. 88. Alexander v. Byron.
      
       Boot v. Franklin.
    
    
      Chambers and Riddle, for the defendant in error,
    referred to Curren v. Connery, 
      
       Edwards v. Thayer.
      Bond v. Farnham.
      
       Collins v. Butler.
      Bank of North America v. M‘Knight.
      
       Jackson v. Richards.
      
       Berry v. Robinson.
      
       Stewart v. Eden.
      
       May v. Cofin.
      
    
    
      
      
         4 JBinn. 199.
    
    
      
       4 Mass. Rep. 45.
    
    
      
       1 Wils. 46.
    
    
      
      
         2 Johns. Ca. 318.
    
    
      
       3 Johns. 207.
    
    
      
      
         5 JBinn. 488.
    
    
      
      
         2 Bay, 217.
    
    
      
       5 Mass. Rep. 170.
    
    
      
       2 Sir. 1087.
    
    
      
      
         2Sail. 158.
    
    
      
       2 Caines, 344.
    
    
      
       9 Johns. 121.
    
    
      
      
         2 Caines, 127.
    
    
      
       4 Mass. Rep. 341.
    
   The opinion of the Court was delivered by

Tilghman C. J.

If the plaintiff had proved, that Adams had absconded, and was not to be found when the note fell due, a demand of payment would have been dispensed with, because it would have been impossible to make it. But no such thing was proved, and therefore, a demand was necessary. The notes being dated at Baltimore, would raise a presumption, that Baltimore was the drawer’s place of residence, as was decided by the Supreme Court of New Fork, 2 Caines’ Rep. 127. Baltimore then, was the place at which enquiry should have been made. The Court laid down the law fairly. A demand, or at least due diligence in endeavouring to make a demand, was necessary.

2. Why was it incumbent on Findley, to shew where the drawer was to be found ? It does not appear that the plaintiff ever applied to him for that purpose, or even informed him of the non-payment of the note. Under these circumstances, Findley was in no default, but the plaintiff was in default, in not giving notice of non-payment, and therefore he was not entitled to recover in this action.

But there is another error assigned. After the plaintiff had concluded his evidence, the defendant’s counsel, who rested the cause on the plaintiff's evidence, began their address to the jury. During this address, the plaintiff’s counsel, asked leave of the Court, to offer further evidence. When this motion was made, the defendant’s witnesses were Called, and did not answer, but during the argument on the motion, they all appeared except one. The Court rejected the evidence. When the jury came to the bar, to give their verdict, the plaintiff proved, that the witnesses of the defendant, who had not answered, had been seen in the courthouse, between three and four o’clock that afternoon.

The time and manner of examining witnesses, is a matter very much in the direction of the Court. It is not regular to introduce evidence, after the counsel have begun their address to the jury, although, where circumstances render it proper, the Court may permit it. No particular reason for breaking through the general rule, appears in this instance; no new witness arrived, who had been subpoenaed, and failed to appear before the evidence was closed. The plaintiff’s witnesses, for all that appears, were all on the spot when his counsel declared, that they had closed their evidence. To make a general practice of introducing new evidence, when from the argument of the adversary, it is found where the shoe pinches, might lead to perjury, and at all events, it would be productive of confusion in trials. But there was a particular reason against it in this case. The defendant had discharged his witnesses, and one of them was not to be found. Had the evidence been admitted, he might have complained of being taken by surprise. As for the proof, when the jury were about to give their verdict, that the absent witness had been seen in the course of the afternoon, it was of no consequence, because it was not proved, that the defendant knew of his being in Court. I cannot say therefore, that the Court acted with too great rigour, when they rejected the evidence. Whether this Court will reverse for error, on a point in which the law permits the Court below to exercise their discretion, is a question, which it is unnecessary to decide, as it does not appear that there has been any abuse of discretion. I have gone through the exceptions relied on by the counsel for the plaintiff; in my opinion* they have not been supported, and therefore, the judgment should be affirmed.

Judgment affirmed. .  