
    John B. Thrasher vs. David J. Ely, Use of Israel Loring.
    No demand and notice are necessary to fix the liability of the guarantor of a promissory note. He must prove negligence on the part of the holder and consequent damage to himself, to entitle him to a discharge,
    when the plaintiff avers a fact in his declaration, the converse of which, if pleaded and proven by the defendant, would constitute no defence, it is unnecessary to prove it.
    In an action against the guarantor of a promissory note, an allegation of demand and notice is mere surplusage, and need not be proved.
    Assumpsit brought by David J. Ely, for the use of Israel Loring against John B. Thrasher, to the November term of the circuit court of Claiborne county, 1840, upon a guaranty of a promissory note made by Isaac R. Wade and Levi C. Harris, in favor of John B. Thrasher, and by him transferred to Ely, in these words:
    “ I do assign the within note to D. J. Ely, for value received, and guaranty the punctual payment of the same at maturity.
    “ J. B. ThRashee.”
    The declaration was founded on the guaranty; averred a request of the makers, to pay at the maturity of the note, nonpayment, and notice to the defendant. The defendant plead the general issue. At the trial, the plaintiff’s counsel rea^to the jury, the declaration, plea, note and indorsement, and rested his case. The defendant’s counsel then asked the court to instruct the jury: “1st, That in order to entitle the plaintiff to recover in this suit, a demand of payment of the maker of said promissory note at maturity, and a notice in a reasonable time to the defendant of the nonpayment was necessary; and that if the plaintiff has failed to prove such demand, that the jury must find for the defendant.”
    2. “ That the plaintiff in his declaration, having averred a request of the makers of said note, to pay at maturity, and alleged a notice to the indorser of the nonpayment, that proof of such averment under the declaration, was necessary to entitle the plaintiff to recover; and that if the plaintiff has failed to make such proof, the jury must find for the defendant,” both of which the court refused to give, and upon motion of the plaintiffs counsel, charged the jury “that in case of guaranty like the present, it is not necessary to aver or prove that the note was presented to the makers at maturity, for payment, or that notice of nonpayment was given to the defendant.” The court also charged the jury, “ that the indorsement or guaranty on the back of said note, was an absolute and unconditional promise on the part of the defendant, to pay the note at maturity without either demand on the makers, or notice to the defendant; that the service of the writ on the defendant was a sufficient notice;” to all of which the defendant’s counsel excepted, and now assigns for error the refusal of the court to give the instructions asked by him, and giving those asked by the plaintiff.
    
      Thrasher and Sillers, for the plaintiff in error.
    This was an action of assumpsit, against the defendant on the following indorsement of a promissory note, to wit: “ I do assign the within note to D. J. Ely for value received, and guaranty the punctual payment of the same at maturity.
    “J. B. Thrasher.”
    Four errors are assigned to reverse the judgment of the court below.
    1. The court erred in refusing to charge the jury, “ (hat in order to entitle the plaintiff to recover, a demand of payment of the makers of said note at maturity, and notice in a reasonable time to the defendant of the nonpayment, were necessary; and that if the plaintiff had failed to prove such demand and notice, the jury must find for the defendant.”
    It is contended by the plaintiff in error, that a demand on the makers of the note at maturity, and notice to the defendant in a reasonable time afterwards of the nonpayment, were indispensable to enable the plaintiff to recover on the indorsement; and that wherever a person indorses anote, or signs a guaranty on the back of it, to guaranty the payment of a debt due from the maker, an omission to present the note for payment, and to give notice, will release the guarantor. But in cases of collateral guaranties, where the parties’ names are not on the note, they are not entitled to strict and immediate notice of dishonor, as a party is, who has indorsed the note. Chitty on Bills, 8th ed. 353, 370.
    'Chancellor Kent, in his lecture on negotiable paper, thus introduces his remarks in relation to mercantile guaranties : “ A guaranty, in its enlarged sense, is a promise to answer for the payment of some debt, or the performance of some duty, in case of the failure of another person, who in the first instance is liable. This engagement is analogous, in many respects, to that of an indorser of negotiable paper.” 3 Kent Com. 2d ed. 121. In the case of Douglass, et al. v. Reynolds, et al., 7 Peters, 120, the fourth instruction asked, was that to entitle the plaintiffs to recover on the letter of credit or guaranty, they must prove that a demand of payment had been made of the principal debtor, and that notice of such demand and nonpayment, had been given in a reasonable time td the defendants, or that the defendants were in law discharged. “ We are of opinion,” says Judge Story, “this instruction ought to have been given. By the very terms of the guaranty, as well as by the general principles of law, the guarantors are only collaterally liable upon the failure of the principal debtor to pay the debt.” 7 Peters, 126. In this case, the necessity of a demand and notice is broadly laid down by the supreme court, as a general principle, pervading all guaranties; and more especially would it apply to a guaranty by way of indorsement on negotiable paper.
    In the case of Nicholson v. Gonthil, 2 Hen. Black. 609, Gonthil and Benton undertook to guaranty an instalment on Green’s debt, and for that purpose Green drew notes payable to Gonthil, at Drury & Co’s., which Gonthil and Benton indorsed. Many of the notes were presented at maturity and paid; but the note in question was not presented until three days after it was due, when payment was refused. It was held that the guarantors were discharged; “for although,” said Eyre, chief justice, “the indorsement was by way of guaranty yet it was liable lo all the legal eousequences of an indorsement.” Heath and Rooke, justices, were of the same opinion.
    When the guaranty is of a note or bill, payable at a future time, although it is not necessary to pursue the same strictness in order to charge a guarantor, as it is to charge the drawer, yet a due demand, and notice of nonpayment, ought to be given to the drawer and guarantors; and if the necessary steps are not taken to obtain payment from the parties on the bill, who are liable and solvent, the guarantor is discharged. Phillips v. Aslling, 2 Taunt. 206. Harrington v. Furber, 8 East, 245. 3 Wheaton, 154.
    In the case of the Oxford Bank v. Haynes, 8 Pick. 425, the court decided that the guarantor of a promissory note would be discharged by a neglect of the holder, to demand payment of the maker, and to give the guarantor notice of nonpayment, provided the maker was solvent when the note fell due.
    In Bell v. Johnson and Hicks, the court decided, that when a note is indorsed, guaranteeing the solvency of the maker, the holder will be entitled to recover from the indorser, upon proving demand and notice, without, proving the maker’s insolvency. 4 Yerger, 194. The case of Green v. Dodge, et al., is in point. In that case, the court decide, that the guarantor upon the back of a promissory note is not liable, without a demand and notice of nonpayment. Ohio Cond. Rep. 436. '
    2. The court erred, in refusing to charge the jury, “that the plaintiff having averred, in his declaration, a demand of payment of the makers of the note, at the maturity, and notice of nonpayment to the indorser, that proof of such averments, under the declaration, was necessary, to entitle the plaintiff to recover; and that if the plaintiff had failed to make such proof, the jury must find for the defendants.”
    The rule laid down by Saunders, on Pleading and Evidence, is, that if the whole of an averment may be stricken out, without destroying the right of action, it will not be necessary to prove it; but if an essential part of the cause of action be lost thereby, the whole averment, though unnecessarily particular, must be proven. 1 Saunders on Plead, and Evid. 492. “ If,” says Lord Kenyon, “ The plaintiff allege anything, which forms a constituent part of his title, he must set it out correctly, as was held in Savage, qui tam. v. Smith. There the ground of the execution was the judgment; and though the plaintiff was not bound to have stated the judgment, yet, being set out, it ought to have been proved.” 3 Term Reports, 645. 5 Term Reports, 49S. So in a declaration on a promissory note, payable to A B, or bearer, it was stated that A B indorsed it to the plaintiff, Lord Ellenborough held, that this statement, although unnecessary, must be proven. 1 Campbell, 175. So, in an action against the drawer of a bill of exchange, after nonpayment, it is unnecessary to státe an acceptance; but if stated, it must be proven. 2 Campbell, 474. .So, in an indictment for stopping the mail, a contract with the postmaster-general, to transport the mail, was alleged, and it was held that the contract must be proved, although the indictment might have been good without such an allegation. 3 Day, 283. 7 Johnson, 324, note b.
    In an action against the indorser, or guarantor of a note, it is a most material averment, that the defendant had notice of the dishonor, or some excuse must-be given for the neglect of it. Chitty on Bills, 8th edition, 591-2. Ohio Cond. Rep. 436. When notice is averred to have been actually given, of the dishonor of a bill, it must be proved, as averred; and if, in fact, no notice has been given, the declaration should state, that due diligence had been used to give it, and assign the reason why it was not done. 6 Mass. 386. Under an averment of due notice, evidence that the holder had used due diligence to give notice, without effect, will not sustain the declaration. 3' Greenleaffs Rep. 233. If no demand is made of the maker, and a sufficient .excuse exists, that, excuse, and not an averment of due notice, should be stated. ■ 5 Mass. 170.
    The plaintiff, therefore, having averred a request of the makers of said note, to pay at maturity, and alleged a notice of nonpayment to the defendant, (in consequence of which he became liable to pay, and being,so liable, undertook and promised,) based his whole right to recover upon proof of the aver-
      meats, and without them, no cause of action is stated. The declaration is one of the ordinary kind, filed against an indorser of a note. There was no evidence offered, to prove either a demand or notice; and no notice was, in fact, ever given of the nonpayment, (except the service of the writ,) although the parties resided in the same town, from the maturity of the note to the commencement of the suit, which was near two years; and this, surely, cannot be regarded as a reasonable notice to the defendant of the dishonor of the note.
    3. The principles involved under this assignment of error, have been sufficiently considered, under the first and second.
    4. The court erred in charging the jury, that the indorsement of guaranty on the back of said note, was an absolute unconditional promise to pay at maturity, without either demand or notice: and that the service of the writ (which was made twenty-two and a half months afterwards) was a sufficient notice. This latter charge was given on a hypothetical question, not before the court: but the judge having proceeded to state the law, and to state it incorrectly, his opinion ought, for that reason, to be reversed. 11 Wheaton, 59.
    The principal authorities relied upon by the defendant in error, are based upon the dicta of a New York judge, contrary to principle — without reason, and unsupported by adjudged cases : to wit, of Judge Spencer, in the case of Allen v. Ritch-mere, 20 Johnson, 366, which was upon a guaranty, in the following words, to wit; “ For value received, I sell, assign, and guarantee the payment of the within note to John Bell, or bearer.” In deciding the case, Judge Spencer says : “Proof of demand and notice of nonpayment were not necessary. The defendant’s engagement is, in effect, that Toan should pay the note, or he would pay it. As it regards the maker of the note, no demand is necessary. A demand of payment is necessary only to fix an indorser, or a surety, whose undertaking is conditional.” To say that the guaranty was an absolute, and not a conditional undertaking to pay at maturity, in case the makers did not, would, we think, be a perversion of human language, if not of human intellect.
    
      The case referred to in 1 Wendell, 457, is based on the dicta of Judge Spencer, in 20 Johnson, 386. The court say in the latter case, however, that the very terms of the guaranty imply that measures to collect the note from the principals, were first to be used. The case in 3 Yerger, 330, is in like manner based on the decision in 20 Johnson, 366. That decision,, standing solitary and alone, and the other decisions resting on no better foundation, than local decisions, confined to New York, should not change the whole current of authority on the subject, which has been consecrated by ages.
    But it is said that the case of Lee v. Dick, in 10 Peters, 496, settles the same principle. That case settles a very different principle, and the question in the case at bar, was not before that court in any shape whatever. The question in the case, as stated by the court, was, whether N. & J. Dick & Co. were bound to give notice to the defendant that they intended to accept, or had accepted, and acted upon the guaranty. 10 Peters, 493; and the court decided that such a notice was indispensable, and, say the court, “ we are not aware of any conflict of decisions on this point.” Thé question of demand and notice, after the credit had been given, was not a point in the case; and therefore the decision has no application as contended for by the defendant in error. The decision in 12 Peters, referred to, so far as it goes, sustains the plaintiff in error, and upholds the decision in the Ohio Cond. Rep. 436, which is a case in point, and one which settles the question before this court, and that will stand the test of “ scrutiny, of talent, and of time.”
    
      H. T. Ellett, for the defendant in error.
    This suit was brought bythe defendant in error, against the plaintiff in error, upon a guaranty of the payment of a promissory note for f1000, made by Wade & Harris, to the plaintiff ■in error, and by him indorsed, in these words; “ I do assign the within note to D. J. Ely, for value received, and guarantee the punctual payment of the same, at maturity. J. B. Thrasher.”
    The secoud assignment of errors proceeds upon a misapprehension of the case, for the count is upon the guaranty, and not against the defendant as indorser.
    The only question presented by the record is, whether, in an action on a guaranty of this kind, it is necessary to prove a demand of payment of the maker at maturity, and notice of nonpayment to the guarantor.
    The authorities to the contrary are numerous. 20 Johns. 366. 1 Wend. 457. 3 Yerger, 330. 3 Yerger, 487. Bayley on Bills, 291, 2 & 3, and notes. Chitty on B., Appendix, Guaranty, 825. 10 Peters, 482. 12 Peters, 497. 3 Kent’s Com. 123. 3 Yermont, 60. 4 Yerger, 194. 7 Conn. R. 523.
    The true rule is distinctly stated in 10 Peters, to wit, that where the guaranty is of a specific existing demand, by promissory note, or other evidence of debt, no notice is necessary, otherwise, where the guaranty is prospective, and to attach upon future transactions. 10 Peters, 496.
    Such is the evident result of the American eases on the subject. 5 Wheeler’s Am. Com. Law, 526 to 531.
    The only case in conflict with these authorities, is that of Green v. Dodge, in the Ohio Condensed Reports, which is not of sufficient weight to overturn the whole train of decisions on the subject.
    The furthest point to which courts have gone, in favor of the guarantor, is, that he will be discharged whenever he shows affirmatively, by proof, that he has sustained some damage by the want of notice. 12 Peters, 503. 3 Kent, 123. 8 Pick. 423. 9 Serg. & Rawle, 198.
    This is the English rule on the subject. 2 Taunt. 206. 5 Maulé & Sel. 62. 3 Barn. & Ores. 439, cited in 10 Eng. Com. Law R., 145.
    There is also a class of cases, where legal proceedings against the maker are required, as in 19 Johns. 69, where the defendant guaranteed that the note was “ good and collectable after due course of law.” And in 1 Wend., 457, where it vyas, “ I guarantee the collection of this note.”
    These seem to be all the exceptions that have been admitted to the general rule.
   Mr. Justice Clayton

delivered the opinion of the court.

This was an action of assumpsit, brought against the plaintiff in error, upon a guaranty of a promissory note, payable to him, and transferred by him to Ely, in the following words : “ I do assign the within note to D. J. Ely, for value received, and guaranty the punctual payment of the same, at maturity.”

The first question arising upon the record is, whether a demand of the maker, and notice of nonpayment were necessary to hold the guarantor liable. The circuit court charged the jury, that no such demand and notice were necessary, and this charge is assigned as the first error.

Upon this point there is a want of harmony in the authorities, calculated to produce some perplexity. The weight of reasoning and authority, however, we think, is in favor of the conclusion, that no such demand or notice is necessary, in a case of the guaranty of a promissory note. We lay out of view those cases which have grown out of a guaranty by letter of credit, and cases which have been construed to create a continuing guaranty. In'both of these classes, the American cases, at least, hold a notice to be necessary in order to charge the guarantor. See 10 Peters, 496. But, in the same case, after the principle, in reference to cases of these classes, has been stated, the court proceeds to draw the distinction, where the guaranty is of the payment of a promissory note, and holds the following language : “There are many cases where the.guaranty is of a specific existing demand by a promissory note, or other evidence of a debt; and such guaranty is given upon the note itself, or with reference to it, and recognition of it; when no notice would be necessary. The guarantor, in such cases, knows precisely what he guarantees, and the extent of his responsibility, and any further notice would be useless.” Chancellor Kent, in his Commentaries, vol. 3, 123, takes the same view of the law. After a notice of the different kinds of guaranties, he concludes the review of the doctrines, in these words : “ In the case of the absolute guaranty of a note, no demand or notice is necessary to fix the guarantor.” In Norton v. Eastman, 4 Green. 526, the court says,'that when a guaranty is absolute in its terms, and definite as to its amount and extent, no notice to the guarantor is necessary. The cases of Read v. Cutts, 7 Green. 191, and Force v. Harding, 3 Fairfield, 195, in the same court, are to the same effect. So in Vermont, Foster v. Barny, 3 Verm. 60. In New York the point has been repeatedly before their courts, and they hold the same explicit language. Allen v. Rightmere, 20 Johns. 365. 17 Johns. 326. 1 Hill, 256. In Douglass v. Howland, 24 Wend. 48, the court examined many of the leading cases on the subject, and held that demand and notice were unnecessary. The following strong language is used : “It is a general rule, that when one guarantees the act of another, though on condition, his liability is commensurate with that of the principal, and he is no more entitled to notice of default than the latter.”

In Tennessee the same course of decision prevails. Upon a guaranty in these words, “ we bind ourselves to see the within note paid,” it was holden that no demand and notice were necessary. 3 Yer. 335. So in Bell v. Johnson & Hicks, 4 Yerg. 196. In this case, besides the ordinary assignment, these words were used, “ and'guaranty the solvency of the drawer.” The court asks, “What is meant by these latter words?” Do they express an intention to restrict the liability ? We think not. On the contrary, they were intended to enlarge it, and give the assignees more ample means of holding him responsible. If they failed to make demand, and give notice so as to fix his responsibility upon the indorsement, still, they might recover against him upon this guaranty, provided they could show, by suit or otherwise, the insolvency of the maker.” The same principle, here unfolded, is adverted to in the case of King v. Murray, 5 Barn. & Ald. 165. 7 Eng. C. L. R. 57. That was the case of a guaranty in the shape of a bond. The court say, “ it is insisted, however, that we are to engraft upon this bond, those limitations which the law imposes upon holders of bills of exchange, namely, a due presentment, and notice of dishonor. I am of opinion that we ought not to do so.”

In the case before us, if there had been a simple assignment without more, demand and notice would have bedn necessary;. and if the parties had intended that the ordinary rules of the law-merchant should govern the transaction, they would only have had to stop with the words of assignment. But the emphatic words are added, “and guarantee the punctual payment at maturity.” Are these to have no effect; and is the construction to be the same, as if they had been omitted 1 We think not, and that they cannot be holden to signify less, than their obvious meaning imports — a warranty of payment of the debt, and responsibility in case of the breach of that warranty. We cannot engraft a condition upon the contract, which the parties themselves, from the language employed, appear to have excluded.

The cases of Green v. Dodge, 2 Ham. 430, the Oxford Bank v. Haynes, 8 Pick., Sager v. Wilcox, 6 Conn. and perhaps a few others, point to a different conclusion. From the best consideration we have been able to give them, we think that, so far as they depart from the principles of the cases, before adverted to, they cannot be supported. Upon the weight of authority, and upon principle, we are of opinion, that, in this case, no demand and notice were necessary.

If the defendant had proven that there had been negligence or delay on the part of the holder, and that he had been prejudiced thereby, he would have been entitled to a discharge, at any rate, to the extent of the damage sustained. Ch. on Bills, 474. Van Wart v. Wooley, 3 Barn. & Cres. 439. 12 Peters, 503.

The nextjerror assigned and relied on, is, that the plaintiff, having averred notice in his declaration, was bound to prove it. The declaration, after stating the making of the note, the guaranty and delivery to the plaintiff, without alleging any demand, as in case of indorsements, avers the nonpayment at maturity, and says, “ of all which several premises the said defendant had notice.” The cases, on the subject of the agreement between the pleadings and the proof, are by no means uniform. A late writer has attempted to extract the true principle which should govern. “ Some averments he calls impertinent, and others immaterial. The former are mere surplusage, may be stricken out without prejudice, and need not be proven. It was different as to the latter. It is by no means easy, at all times, to discriminate between the two. An impertinent averment is a statement of matteraltogether foreign to the merits of the cause, and may be wholly rejected, without injury to the pleadings. An immaterial averment is a statement of unnecessary particulars in connection with, and as descriptive of what is material. The rule that immaterial averments must be strictly proven, is by no means universal, though formerly so understood. The rule, as limited by the more modern authorities, appears to be that no immaterial averment requires precise proof, unless the subject of the averment is a record, a written instrument, or an express contract; the principle of the rule embracing only that class of averments, of which a variance may be predicated.” Gould’s PL 163, cited 2 Phil. Ev. by Gowen & Hill, 504. In illustration of the rule, as thus stated, it is expressly decided, inf the case Cannon v. Gibbs, 9 Serg. & Raw., that the averment of demand and notice is an impertinent averment, when made in reference to a guaranty, and need not be proven. When presentment at a particular place, is unnecessarily averred, it need not be proven. Chitty on Bills, 639. So of an acceptance, Tanner v. Bean, 10 C. L. Rep. 310. 4 Barn. & Cres. 312. It is true, that authorities of an opposite character may be found, but we think that in principle these are correct. See Conn v. Gano, 1 Hamm. 210. When the plaintiff avers a fact in his declaration, the converse of which, if pleaded and proven by the defendant, would constitute no defence, it would seem to be useless to prove it.

We incline to the opinion that the allegation of notice in this case was mere surplusage, and might be stricken out without prejudice to the plaintiff’s action; but whether impertinent or immaterial, we think'it was unnecessary to prove it.

The reasoning, in regard to the assignment of these two alleged errors, will comprehend all the others. No error is perceived in the judgment of the court below, and it is therefore affirmed. - ■  