
    Thomas Bibb et al. vs. John B. Peyton et al.
    In a joint action against the maker and indorser of a promissory note, to which the plea of the statute of limitations is plead, proof that the indorser made payments at different times within the six years, will not vary or affect the liability of the maker; and he will not be deprived of the benefit of the statute thereby.
    
      Proof of partial payments after the maturity of a note made by the indorser, is presumptive evidence of demand and notice to such indorser ; and will justify a verdict of a jury accordingly.
    In error from the circuit, court of Hinds county; Hon. George Coalter, judge.
    Thomas Bibb and Arthur M. Hopkins, on the 1st day of June, 1844, sued in assumpsit on a promissory note for $4919'68, made by William H. Jennings and John B. Peyton, payable on the 1st of April, 1838. To the firm of “ Jennings & Drone,” and by them indorsed in blank to “Martin, Pleasants & Co.” who assigned it on the 25th of October, 1842, without recourse, to Bibb & Hopkins.
    Peyton, one of the makers, and Drone, one of the indorsers, were the only parties sued.
    The declaration avers demand, non-payment, and notice to the indorsers in the usual form. Both defendants at the return term joined in pleading the general issue. But at a subsequent term, by permission of the court, Peyton pleaded also the statute of limitations, and the plaintiffs below excepted. In support of the issue on their part, the plaintiffs below relied on proof of partial payments; and read in evidence the deposition of John Martin, one of the holders of the note from the time of its maturity until its assignment, as aforesaid, to Bibb & Hopkins.
    Martin deposed “ that the following payments were made on said note, to wit, a payment of $2000, about the 4th of February, 1839, and of $500 about the 12th of the same month; that these payments were reported by Hugh Wilson as made to him, he being at the time in the state of Mississippi; that he (deponent) had no knowledge by which of the parties the money was paid over. That a payment of $930-50, indorsed April 9, 1840, was made to deponent about that time in the town of Raymond, and to the best of his recollection at the store-room of Jennings & Drone, but he (deponent) could not say by which of the partners it was made. That a payment of $500, indorsed the 26th of April, 1841, was made to deponent about that time in Raymond, and he thinks the money was handed to him by Drone; but that he makes that statement rather from the fact of its being so stated in the indorsement made of the payment at or about that time, than from any distinct recollection of the fact.
    
      “ That deponent generally had the note with him, but does not know that he ever exhibited it to the person making payment. He does not remember ever to have conversed with Pey-ton respecting the note, nor does he believe that Peyton ever made any promise to pay said note, or part of it. With Drone, deponent had frequent conversations, the purport of which he could not call to mind distinctly; that Drone always expressed great anxiety to have the note settled. That he (deponent) knew nothing farther of importance to the plaintiffs below, on the trial of the cause.”
    On the back of the note were indorsed these credits: “ Received, February 4, 1839, on account of this note, two thousand dollars. Martin, Pleasants & Co.” — “ $500. Received in a letter from Jennings & Drone five hundred dollars, February 12, 1839.” — “Received April 9, 1840, nine hundred and thirty-seven dollars and fifty cents, in part of the within. Martin, Pleasants & Co., 937-50.” — “Received at Raymond, say 26th of April, 1841, of Mr. Drone, on account of this note, five hundred dollars. $500. M., P. & Co.”— “ Credit by $13-05, this 25th of April, 1844. John Shelton, for Bibb & Hopkins.”
    It was proved that Peyton was a planter, and lived about half a mile from Raymond; Jennings, the maker, also a planter, lived about fifteen miles from Raymond; and Jennings & Drone, the indorsers, lived in Raymond, and had a store. The parties were all well acquainted with each other, and were often in each other’s company, and Drone was a careful business man. This was all the proof.
    The plaintiffs then requested the court to instruct the jury,
    l. That if they believe, from the testimony in the case, that the defendant Drone, or his then partner, Jennings, made part payment, or promises of payment of the note sued on, and which are testified to, knowing that notice had been legally given of the presentment of said note for payment, and refusal thereof, they should find for the plaintiffs. Or, if the jury believe from the evidence that no such notice was actually given, and that said part payments, or promises, were made by the defendant Drone, or his then partner, Jennings, knowing that no notice was given, that would be a waiver of notice; and that his, or his partner’s knowledge of the' fact, that notice was, or was not, legally given, may be inferred by the jury from the part payments or promises thereof by Drone, or his partner, under the attending circumstances, and does not require affirmation and proof of such knowledge.
    2. That if, from the evidence, the jury believe that Drone or his partner made such part payments or promises, either would be sufficient to charge him (Drone) as indorser, unless it is proved that in fact no legal notice of the presentment, demand, and non-payment of the note sued on was given.
    8. That if the jury believe, from the evidence, that no legal notice of the presentment, demand, and non-payment of the note sued on was given; and if they further believe that Drone or his partner made such part payments or promises; and if they also believe from the evidence, that Drone or his partner, before the same were made, could, with reasonable diligence, have ascertained whether legal notice had been given to him, or them, of the presentment, demand, and non-payment of the note sued on, or not; they should find for the plaintiffs.
    4. That if the jury believe from all the evidence, that the conduct, and admissions, part payments and promises thereof, of Drone and his partner, amounted to a waiver of notice, they should find for the plaintiffs.
    5. That if the jury believe from the testimony, that Drone or his partner admitted or acknowledged their liability as indorsers, or made the part payments or promises thereof, they would be prima, facie liable; and that it is for him (Drone) to prove that there was in fact no legal notice of the presentment, demand, and non-payment of the note sued on; and in the absence of such negative proof, the jury ought to find for the plaintiffs.
    6. That it is for the jury to say whether, under all the circumstances, the evidence amounted to an admission of liability, or a waiver of notice by Drone, or his partner, and that either is binding on Drone.'
    
      7. That if the jury believe, from the evidence, that Drone or his partner made part payments, promised to pay, or acknowledged his or their liability on the note sued on, it dispenses with proof of actual notice, unless it negatively appeared from the evidence that no legal notice was in fact given.
    8. That in case of an indorsement by a partnership, during its continuance, notice to one partner is notice to all; and that an admission of liability, waiver of notice, part payment, or promises to pay, is binding on the rest.
    9. That when several of the parties to a promissory note are sued in one action, a subsequent promise or part payment by, or binding on, one of them, takes the case without the statute of limitations as to all,
    10. That where different persons are parties to the same note, whatever removes the operation of the statute of limitations, as to one of them, removes it as to all.
    11. Part payment or a subsequent promise, within six years before action brought by the indorser of a note, will take the same out of the operation of the statute of limitations as to the maker.
    12. Part payment or a subsequent promise, within six years after the cause of action, accrued, and also within six years before action brought, by an indorser of a note, prevents the bar of the statute of limitations from attaching, not only against such party, but also against all other parties to the note.
    The court gave these instructions.
    The defendant then asked for the following, viz.:
    1. To fix the liability of R. S. Drone in this cause, the plaintiffs must prove demand and notice, as alleged in their declaration ; or prove a waiver of such demand and notice by said indorsers. This was given.
    2. To entitle the plaintiffs to recover in this cause against the indorser, on the ground of demand and notice, they must furnish such proof as will induce the jury to believe that such demand and notice were given.
    3. To entitle the plaintiffs to recover against the indorser herein, on the ground of waiver of the notice of the dishonor, it is incumbent on them to prove to the jury such waiver; and if the jury believe from the evidence, that Drone has paid part of said note, without a full knowledge of the facts calculated to exonerate him, that fact alone will not authorize them to find against him on the ground of waiver.
    4. Proof of payment by the indorser will not take the case out of the statute of limitations as to John B. Peyton; if, therefore, the jury believe from the evidence, that more than six years elapsed between the maturity of the note and the commencement of the suit, they must find for said Peyton.
    
      5. The jury may consider of all the circumstances, whether notice has been duly given to the indorser or not; but if the jury believe, from the evidence, that notice was not given, then any promise or partial payment made by the indorser under an ignorance of the facts, will not be sufficient in law to bind the indorser. These four instructions were all refused, and upon the verdict of the jury for the plaintiffs, the defendants jointly sued out this writ of error.
    
      E. W. F. Sloan, for plaintiff in error.
    1. Partial payment is but a presumption of notice, and like all presumptions may be rebutted.
    The expressed anxiety of Drone to have the note settled cannot be tortured into a promise to pay; and there is no conclusive proof, showing that either of the partial payments were made by him.
    Martin’s deposition does not show that these payments were in fact made by either of the partners who indorsed the note, (Jennings & Drone.)
    Admitting, however, partial payments by one or both of the indorsers, and regarding that fact as governed by the rule above suggested, has the presumption not been fully met?
    Martin, being the holder of the note, must have known whether any steps had been taken to demand payment and give notice of non-payment. And when he deposes, that he knows nothing farther that would be of importance to Bibb & Hopkins without alluding to such steps, he certainly proves that there was no demand and notice as conclusively as a negative can be proven.
    2. There can be no question that, if there were any thing in the proof calculated to rebut the presumption of demand and notice, then, the partial payments can only be regarded as a waiver of demand and notice. When regarded as a waiver, the rule contained in the third instruction is sustained by every authority I have been able to find. See Robbins et al v. Pinck-ard et al. 5 S. & M. 51; also Tebbets v. Dowd, 23 Wend. R. 383, and the cases cited.
    I submit that the fifth instruction is equally sustained by the authorities just referred to.
    3. The case of Gardiner v. Nutting, in 5 Greenl. R. 140, fully sustains the fourth instruction applied for on behalf of Pey-ton, who was one of the makers. The undertaking of the in-dorser is.independent of, and collateral to, that of the maker; and the rule in Gardiner v. Nutting is, that “neither of these collateral parties has a right to affect or vary the liability of the other. Each may rest on any legal ground of defence, which no admission of the other can defeat.”
    
      John Shelton, for defendants in error,
    after arguing that the court below had no power to allow the defendant Peyton to plead the statue of limitations, after the cause had been at issue for several terms, (but the argument on that point is omitted,) contended, that
    1. The case of Robbins v. Pinckard, 5 S. & M. 51, was conclu-, sive of the question of demand and notice to the indorsers; that case is very similar to this. (Mr. Shelton reviewed the case referred to at length, and compared it with the present one, and argued that the principles there adjudged, which were decisive of that, applied with much more force to this.)
    2. The second instruction asked by defendant was properly refused, because it was so drawn as almost certainly to mislead the jury, by inducing them to believe that, in the absence of direct and positive proof of a formal demand and notice of nonpayment, they must find for the indorser Drone. In this case, part payments by him were proved in order to fix his liability, and there was no direct proof as to demand and notice. By the case of Robbins v. Pinckard, it was decided that such proof was sufficient, as presumptive evidence of legal liability, in the absence of rebutting testimony by the indorser to show that no demand was made or notice given in fact. In the case at bar, no such rebutting proof was made,, or attempted to be made. The basis for such an instruction had not been first laid, and for both these reasons this instruction was properly refused.
    3. The third of these instructions is based upon what does not exist in the case. There was no question as to waiver of notice, for no attempt was made even by the indorser to show that no notice had been given, or that it was irregular. It was then an instruction on a mere abstract question, which did not arise in the case, on which the indorser, Drone, had not even attempted to offer any proof, and was therefore properly refused. For nothing can be clearer than that a court should refuse all instructions or abstract points of law, that do not arise in the case under trial.
    4. The fifth of these instructions seems to be liable to all the objections urged against the last one. There was no direct evidence given of demand and notice given, the subsequent part payments were relied on to create a presumption thereof, which this court, in the case already referred to, has decided was sufficient; and the indorser made no effort to prove that he made the part payments insisted upon, in ignorance of the facts of the case, or that no notice, or an insufficient one, was given. For these reasons this instruction, too, was rightfully refused.
    5. That the ninth instruction of defendants in error is law. See 2 Phillips, p. 174, note 177, and cases there mentioned; Law Library, vol. 3; Cary on Partnership, p. 40; Bayley on Bills, p. 40-46, 182, 183.
    The court below did not err in regard to those instructions, given in relation to the statute of limitations. See Bac. Abr. (last ed.) vol. 6, p. 401, in notes, and cases there referred to; Whitcomb v. Whiting, Doug. 652 ; Jackson v. Fairbanks 2 H. Bl. 340 ; Burleigh v. Stott, 8 Barn. & Ores. 36; Smith’s Adm’r. 
      v. D. & G. Ludlow, 6 Johns. R. 267; Johnson, Adm'r.- v. Heirs and Devisees of Beardslee, 15 lb. 3; 2 Phil, on Evid. notes 176, 178.
    It is true that in most of the cases referred to, the subsequent promises, and part payments relied upon, were made by partners or joint drawers. If the case at bar, where the part payments relied upon were made by an indorser, is not so strong as where they were made by a partner, yet surely it is as strong as where made by'a joint owner.
   Mr. Justice Thacher

delivered the opinion of the court.

This is an action against the maker and indorser of a promissory note. The defendants in the circuit court rested their defence upon the statute of limitations. The plaintiffs relied upon proof of partial payments in avoidance of the statute of limitations, and as presumptive evidence of notice to the in-dorser. There was a verdict and judgment for the plaintiffs.

No actual proof of notice to the indorser, of the non-payment of the note was introduced. The evidence as to by whom the payments were made after maturity, is not conclusive, but there is enough to warrant the jury in their evident conclusions that they were made by the indorser. This proof was sufficient to authorize the inference of actual demand and notice. Tebbets v. Dowd, 23 Wend. 379; Robbins et al. v. Pinckard et al., 5 S. & M. 51. It does not present a case of waiver of demand and notice upon the part of the indorser, and therefore the instructions asked for by the defendants, based upon that supposition, were properly refused.

But upon the hypothesis, that the payments were made exclusively by the indorser, it follows, that tire statute of limitations was in full force as to the maker. There is no joint liability between the defendants, and the act of the indorser could not vary or affect the liability of the maker. Hence the instructions demanded, on behalf of the maker, that the payments by the indorser did not deprive the maker of the benefit of the statute of limitations, were improperly refused, and should have been given by the circuit court.

The judgment is reversed, and new trial awarded.  