
    Alfred Reaves et al., Administrators of Swan Thompson, deceased, vs. Joseph Dennis.
    The insolvency of the maker of a promissory note is no excuse for not making demand of payment, and not giving notice of protest.
    Where the declaration against the indorsee of a promissory note in its first count was in the usual form, but in the second did not aver demand and notice to the indorser, but, as excuse for the omission, averred that the maker of the note was insolvent; and the defendant plead non assumpsit, and a verdict, without any charge from the court, on proof of the insolvency, was rendered for the plaintiff; and the defendant moved for a new trial, which being refused he embodied the testimony in a bill of exceptions, and brought the case to this court: Held, that the statute of jeofails did not preclude this court from examining the case, and granting a new trial for want of sufficient evidence to uphold the verdict.
    The statute which allows exceptions to the action of the circuit court in granting new trials, makes it the duty of the high court of errors and appeals to-revise the judgment of the circuit court, and to do what that court should have done.
    Where the declaration fails to make out a case against the defendant, and he,, instead of demurring, pleads to the action, and a verdict and judgment are. given against him, it seems that, under the statute of jeofails, the defect in the pleadings will be cured, and the judgment be undisturbed.
    But aliter, if the evidence be embodied in the record, on the overruling and motion for a new trial.
    In error, from the Pike circuit court; Hon. Y. T. Crawford, judge.
    Joseph Dennis sued Alfred Reaves and David Zeagler, administrators of Swan Thompson, deceased, in assumpsit, on. their intestate’s indorsement of a note made by Joseph Gates.There were two counts in the declaration; the first, in the ordinary form, averring demand and notice to the indorser; the. second count, averred the making of the note, and its nonpayment at maturity, and continued in these words : “ And the: said plaintiff saith, that at; the time when said note became. payable, and from that time until now, the said Joseph Gates has been wholly unable to pay the same; neither could said money, or any part thereof, have been collected out of said Gates, by any legal proceeding, or in and by any suit at law; nor has the said Swan Thompson sustained any damage by reason of his not having notice of the non payment of the said sum of money by the said Joseph Gates.” The breach was in the ordinary form.
    The defendants plead non assumpsit by their intestate. A jury was empaneled, who found for the plaintiff; the defendants moved for a hew trial, on the ground that the verdict was contrary to the law and evidence; which motion being overruled, they filed a bill of exceptions, embodying the testimony, which, in substance, established the insolvency of Gates.
    The defendants below prosecute this writ of error.
    
      W. P. Harris, for defendant in error.
    It is not pretended that the proof offered in this case supports the count, which avers demand and notice, nor is it pretended the count which avers the insolvency of the maker as an excuse for demand and notice, would have been sufficient on demurrer. But the position which was assumed below is insisted upon here, to wit, that these objections come too late after verdict. Our statute, (H. & H. Dig. 591, sec. 11,) provides that, after verdict, &c. no judgment shall be stayed or reversed for any defect in form or substance, which might have been the subject of demurrer, and was not so taken advantage of.
    The count under which the proof of insolvency was offered, is good, unless demurred to, That is, what is set forth in it amounts to a cause of action. The proof corresponds with the allegations, and is therefore sufficient to support the verdict. Certainly, the objection that the proof offered did not supply what was omitted in the declaration, is not well founded. The defendant below omitted to take advantage of the defect in the declaration by demurrer, and allowed a verdict to go. And that defect is thus cured, and the judgment by the statute above quoted, is not affected by the fault in the declaration.
   Mr. Justice Clayton

delivered the opinion of the court.

This was an action of assumpsit against the plaintiffs in error as administrators of Swan Thompson, deceased, upon his indorsement of a promissory note made by one Joseph Gates. The declaration contained two counts. The first averred a demand and notice in the usual form; the other, the insolvency of the maker as an excuse for want of demand and notice. The defendants pleaded non assumpsit. The only evidence upon the trial related to the insolvency of the maker; there was no attempt to prove demand or notice. No charge was asked of the court, and a verdict was rendered in favor of the plaintiff. The defendants moved for a new trial, which was refused; they then embodied the evidence in a bill of exceptions, and brought the case by writ of error to this court.

It is conceded by the counsel of the defendant in error, that the evidence was in legal effect, insufficient to warrant the finding of the jury, upon a proper state of pleadings. But he insists that the second count in the declaration was defective, and should have been demurred to, and that as no demurrer was filed, the defect is cured by the verdict, by force of the statute of jeofails and amendments.

That statute is very broad in its provisions, and cures almost every defect in the pleadings after verdict. But it has been decided in Virginia, under exactly the same statute, that it gives to the verdict the effect of curing errors, only when the verdict is given without exception.” Truss v. Old, 6 Ran. 560.

Our statute in regard. to the allowing of exceptions to the granting or refusing of new trials, has an important bearing upon the subject. Upon the construction of this statute, this court has said, “if no charge be asked or given, and the case comes up on a bill of exceptions embracing the whole evidence, this court must consider whether the law rvhich controls the cause, has been properly understood and applied to the facts by the jury. This task is a delicate and difficult one, but it must be performed. The inclination of the court will be to sustain the verdict, if it can be done on correct legal principles; but if it cannot, we must give the parties another trial.” Leflore v. Justice, 1 S. & M. 385.

The statute puts this court in the place of the circuit court, at the time of the rendition of the verdict. It is our duty to revise the judgment of the circuit court in this particular, and to do what that court should have done. We cannot but see in this case, that the verdict is contrary to law. The insolvency of the maker of the note, found no excuse for the failure to make demand and give notice to the indorser. The error of counsel in not taking advantage of this by demurrer, cannot shut out this conclusion from our view, or preclude the application of a remedy, when the whole case, facts and law, are brought under our inspection.

If there had been no motion for a new trial, and no exception to the judgment upon that motion, the result would probably be different. Upon a writ of error to the judgment, without reference to the testimony on which the verdict was given, and without reference to the motion for a new trial, there would be no error apparent upon the record, which would not be cured by the statute of jeofails.

The judgment must be reversed and new trial granted.  