
    Moore et al. v. Brungard.
    The fact that the endorser of the note endorsed the same in payinent of property, in the purchase of which he was jointly interested with the maker, does not supercede the necessity of demand and notice.
    IN ERROR from the circuit court of Warren county.
    • At the October term of the Warren circuit court, 1840, George Brungard obtained judgment on a promissory note against William Moore et "al. drawers, and Morris Emanuel endorser. It appeared that the consideration of the note was part purchase of a lot of ground sold by Thomas F. Walker to Wm. Moore and Morris Emanuel. Walker endorsed this note to Brungard. Before the notes for said lot were executed, Woore and Emanuel informed Walker that they (Moore and Emanuel) had sold a part of said lot to Hunt, Littlejohn and Pugh, co-drawers of the note (with William Moore) and that Moore and Emanuel had agreed that Hunt, Littlejohn and Pugh, should become responsible to him (Walker) for their portion of the purchase' money of said lot, and that Moore and Emanuel would be responsible for their portion. That Moore .and Emanuel proposed that each party should give joint notes for their respective ■ portions, with the endorsement of the others. This was accordingly done, and Walker received them in consideration of said lot;
    The plaintiff' below moved the court to instruct the jury that if they believed that the note read in evidence, was one of the notes given in consideration of the purchase of the lot, sold by Walker to 'Moore and Emanuel, and if Moore and Emanuel were partners in the purchase of the lot,-for which the note sued .on was given, and that the note and endorsement of Emanuel was only a mode of p'ayment, then there was no necessity for protest and notice of non-payment. . This instruction was given. The plaintiffs in error excepted. There was also a motion for new trial, upon affidavit, which was overruled, and exceptions taken.
    
      G. S'. & J. S. Yerger, for plaintiff in error.
    It is settled that whenever a drawer or endorser of a bill upon payment of it, would have a right of action against any of the parties, demand and notice are necessary to charge him, 5 Com. Law Rep. 401. 15 lb. 600. 19 lb. 181. Chitty on Bills, 201.
    The case cannot be made' plainer than by á bare statement of it. Thus,. Moore and Emanuel purchased the whole .lot and were liable for all the purchase money. They sold a portion to Hunt, Littlejohn and Pugh, and said to Walker, instead of giving you our note for the whole amount, we will give you Hunt’s, Littlejohn’s and Pugh’s, for the part we sold them, which we. will endorse. This is agreed to; and yet the judge says they are not endorsers entitled to notice. The affidavits clearly make out a caSe of surprise in Emanuel as to Walker’s testimony. The affidavit of Moore shows demonstrably, that if he is competent to testify, there ought to be no judgment against Emanuel.
    The affidavit of William Moore is conclusive in favor of Emanuel, and a new trial ought to have been granted on the ground that Moore, being a party sued, and there being no severance, could not be offered as a witness to disprove Walker’s statement, because'he was a joint defendant.
    At common law, Moore being a maker, could not be. sued jointly with the maker. He was therefore' a good witness at common law, in a suit against the endorser. The act of Assembly which requires maker and endorser to'be sued jointly, does not render him incompetent; • but before he can be examined, he must be severed, and this before the jury is sworn. This is the construction put on the act of North Carolina, requiring endorsers and makers to be sued jointly. Vide 1 Dev. Rep. 298.
    Emanuel did not know, nor could he foresee, that he would want Moore for a witness; therefore he did not move to have him severed. ' And it was only during the trial, and in consequence of Walker’s testimony j that Moore’s testimony became material. This being so, and as he was precluded from .examining him on the trial, because he was a joint defendant, a new trial ought to be granted, in order that he may have a severance, and examine him. He could not foresee that Walker would be examined, nor could he foresee that he would prove what he did: he therefore could not be prepared to meet it, by having Moore severed to examine him.
    There is only a plea by two of the defendants, and. no judgment by default against the others, and a joint, verdict and judgment against all. The whole is erroneous and void. A verdict and judgment against a defendant, when there is no plea, is erroneous; because, when there is no plea, no jury can be em-pannelled. Mosely v. Matthews, Meigs’ Rep. 578. And it is well settled, that when a verdict and judgment is jointly rendered against several, and it is erroneous as to one, it is manifestly erroneous as to all. Richardson v. Walker, 12 John. Rep. 434.' Hobart v. Murray, 5 Wendel, -141. Hall v. Williams, 6 Pickering, 247. Arnold v. Langford, 14 John. Rep. 424. Pittman v. Planter’s Bank, 1 Howard, 527. ■ ,
    French and Burwell, for defendant in error.
    The only questions presented, are: 1st. Was Emanuel an endorser for valuable consideration ? 2d. If so, was he entitled to demand a notice of non-payment ? Upon the second point there can be no doubt. Chitty on Bills,.471, lays down the principle, that if the payee of a note lend his name to enable the maker to raise money upon it, and knew at the time that the maker was •insolvent, he is not entitled to notice.
    Where a party, endorser, receives all the property of the maker for indemnification, although insufficient, yet he is bound without notice, 5 Mass. Rep. 17Ó.. 1 Serg. and R. 334.
   Chief Justice Shakkey. .

In this case two errors are assigned and relied on as sufficient to reverse the judgment. First, that the court erred in the charge to .the jury, and second, that the motion for a new trial was erroneously overruled.

The parties who seek a reversal of the judgment were sued as endorsers of a promissory note.. By the first bill of exceptions it appears that the plaintiff below instead of introducing proof of demand and notice, introduced a witness to prove facts which made demand and notice unnecessary. Walker, the witness, stated that the note sued on was given to him for part of the purchase money agreed to be given for a lot of ground sold by him to Moore and Emanuel. That after the sale and before the notes were given, the defendants informed him that they had sold part of the lot to the other defendants, Hunt, Littlejohn & Pugh, and that it was agreed that H., L., & P. should become responsible to him for their portion of the purchase money, they giving their note for the amount, and Moore and Emanuel to give their note for their portion, and that the two parties, purchasers, should become mutual endorsers for each other. The witness said he was willing to this arrangement so that they should all be bound to him. That he assented to it and received the notes so endorsed, and had considered the whole of them bound to him for the whole amount. This was the only evidence the plaintiff introduced, and thereupon the court charged the jury that if Moore and Emanuel were partners in the purchase, and that the note and endorsement was only a mode of payment, then there was no necessity of notice.

In this instruction we think there was error. It was altogether competent for the vendor and vendees to change the nature of the contract or the nature of the security to be given, at any time before final consummation. Walker, it seems, understood the arrangement and assented to it. The parties were ail bound to him, but not as makers; his understanding was therefore correct. But whether he considered them bound as principals or not was immaterial. His understanding could not change the legal effect of the contract. He had assented to an arrangement which made Moore and Emanuel liable as endorsers only, and his assent is now binding. It was a change of the contract which must be regarded as obligatory. Hunt, Littlejohn, & Pugh, it seems, executed their note for their portion of the purchase money in pursuance of their contract entered into with Moore and Emanuel. Suppose that this note was given to Walker as a mere mode of payment, still the obligation to make a demand and give notice was the same as in ordinary cases. It was a mere transfer of a negotiable security in part payment of a lot of ground, and although the security was executed for that purpose, the case is not changed; notice was necessary. It does not differ from an ordinary transfer of a note in payment for property. The whole of the testimony of Walker shows no other than a mere case of the transfer of a note in part payment for property. It is not distinguishable from the cases of every day’s occurrence.

The question may be tested in this way: Suppose Moore and Emanuel had paid this note at maturity, would they have had a remedy against Hunt, Littlejohn & Pugh ? If they would, then notice was necessary. It must certainly be manifest that they would have a remedy. The note had been given to Moore and Emanuel in payment of part of a lot of ground, purchased of them by H., L., & P., certainly if it was not paid the remedy was palpable. That it was given with a view to a transfer to Walker on a purchase of the same ground by Moore and Emanuel, does not alter the case. The object of the law in requiring notice, is, that parties may protect their rights, and wherever such rights may be jeopardized, the notice must be given. The proposition-of Emanuel and Moore was to become liable as endorsers, and it was acceded to by Walker. As the judgment must be reversed for this error, it is unnecessary that the second assignment should be noticed.

New trial granted.  