
    Bayley vs. Hazard.
    The county court has no authority to grant an appeal without taking bond and security as required by law, during the term.
    An appeal prayed, and an order to give security at a future day, will not give jurisdiction to the court to which the appeal is prayed, although the security is given within the time required.
    
      Nil debit is not a good plea to an instrument under seal, where the assignor of a note bound himself in the assignment, to stand good for the note until it was paid: it was held, he was not entitled to demand or notice. Debt lies by an indorsee against an immediate indorser.
    This was an action of debt against the assignor of a note. The assignment was special, and the assign- or, by its terms, “bound himself to stand good for the note until it was paid,” and affixed his seal to his signature. The maker was sued in Virginia; and this suit was brought upon the copy of the note and endorsement, as it was set forth in the record from Virginia. The plaintiff filed his declaration, to which defendant demurred. The demurrer was overruled in the county court. After the cause was in the circuit court, defendant filed his pleas, to which the defendant demurred; and on argument, the demurrer was sustained. Time was given defendant to farther plead, which he failed to do, and judgment final was taken against him by default. At the same term, defendant filed his reasons in arrest of judgment, which were overruled by the court. The defendant then prayed and obtained an appeal in the nature of a writ of error, to the circuit court, but executed no bond, nor gave any security for his appeal. The county court allowed defendant to take an appeal without executing a bond, and gave him three days after the adjournment thereof, to execute the bond. The record certified to the circuit court, sets forth a paper purporting to be a bond, which was executed after the adjournment of the county court.
    When defendant’s demurrer was overruled in the county court, he obtained leave to plead, and filed three pleas. 1. Nil debit. 2. That there was no demand of the money from the maker of the note; and 3. That there was no notice given defendant of refusal to pay. The plaintiff demurred to these pleas.
    
      W. A. Wade, for plaintiff in error.
    1. The circuit court should have dismissed the appeal, because there was no security given for the prosecution thereof, as is required by the act of 1794, ch. 1, sec. 63, (Hayw. and Cobbs’ Revisal, 4,) which gives the right of appeal, on condition, that “before obtaining the same, the party asking for it, shall enter into bond with two sufficient securities, for prosecuting the same with effect, and performing the entire judgment or decree that the circuit court shall pass or make thereon, in case such appellant shall have the cause decided against him.” The execution of the bond is a condition precedent, and the party praying the same is allowed the appeal on that condition, and no other. If the condition is not complied with, the court has no power to grant the appeal.
    In 1 Mur. N. C. Rep. 178, the court, in adjudicating upon the act of 1796, decided, that an appeal bond cannot be legally executed after the rising of the county court. At pages 281 and 495, of the same book, it is decided, that if but one security is taken on an appeal bond, the appeal will be dismissed by the higher court. After granting the appeal, the authority of the inferior court over the cause ceases. 1 Ten. Rep. 2. The bond taken for the appeal in this cause is absolutely void: 1. Because it was taken out of term time; and, 2. Because there is no statute authorizing clerks of the county court to take bonds in such cases. The record must then be regarded as if there was no bond for an appeal set forth in it; if regarded in that light, the circuit court should have sustained the motion and dismissed the appeal, unless prevented from so doing by some subsequent act of assembly. There is but one act which, if pursued, would have afforded a remedy for the defect. The act of 1821, ch. 21, provides, that where an appeal is taken from the county to the circuit court, and exception is taken to the sufficiency of the bond, or the security, or if there is no bond, the court shall, on application, allow the party to supply any defect in the inferior court, as if the same had been commenced in that court. The defendant made no application to the circuit court to supply the defect, as he was authorized to do by this act of assembly. The act does not itself supply the defect, but gave him the power of doing it. As he did not do it, the court should have dismissed the appeal, as though the act of 1821 had not been passed.
    2. When the deed is the foundation of the action, the defendant must plead non est factum, and nil dehit is not a good plea, although extrinsic facts be mixed with it. 1 Chit. Plead. 423. 1 Saund. 88. 11 John. Rep. 476. Plaintiff must demur to such plea, and cannot object to it after verdict. 8 John. Rep. 83.
    3. There are many cases in which, from the nature of the endorsement, the endorser is bound, although no demand is made and notice given; the law allows individuals to make their own contracts, and when the intention can be seen, the courts will carry it into effect. In the present case, the parties made a special contract, and set it forth in the endorsement. In that contract, the defendant hound himself to stand good for the note until it was paid, and affixed his seal to his signature. Where a note was endorsed by a special endorsement, similar to the endorsement in this case, it was determined that the endorsee could maintain his action against the endorser, without previous suit on the note against the maker. 4 Day’s Cases, 444, (Conn.) 2 Am. Dig. 85. Where a sealed note was assigned, and ⅛ the assignment, the assignor agreed “to stand security for the same until paid,” and the assignee did not make demand of the drawer for three years afterwards, during which time he was in good credit, but then became insolvent, it was determined that the assignor was nevertheless liable on his guaranty. 2 Hals. N. J. Rep. 272, (4 Am. Dig. 84.) The words in an assignment, “I assign my right to the within bill, and guaranty its payment,” will authorize a recovery on a sealed bill, although no demand of payment be made or notice given, as in case of promissory notes not under seal. Stout vs. Stevenson, 1 Southard’s N. J. Rep. 178. 2 Car. L. Rep. 602, Wister vs. Tate.
    In the case before the court, the assignment was as full and strongly expressed, as in either of the cases above referred to. It was in these words: “I assign the within to Wyatt W. Bayley,, and bind myself to stand good until paid, for value received of him.” From the nature of the assignment, the county court properly sustained the demurrer to defendant’s pleas, of want of demand and notice. If no demand was necessary, no notice was, and defendant’s 2d and 3d pleas must stand- or fall together.
    
      Owens, for defendant in error.
    Defendant in error, in support of the demurrer to the declaration, relies upon the following authorities: 1 Chit. Plead. 91, shows, that debt cannot be brought upon a collateral undertaking, or by the payee or endorsee, against the acceptor of a bill of exchange, or by the endorsee of a promissory note, against the maker. Debt is not sustainable on a collateral contract, as on a promise to pay the debt of another, in consideration of forbearance, &c. nor against the endorser of a bill or note, or by an endorser against the acceptor. Ch. Plead. 102.
    
      Proferí, or an excuse for not making it, must be in the declaration; and if an excuse is offered, it must be sworn to. Chitty’s Plead. 313, 314. See also, acts of 1812, ch. 35; 1819, ch. 27. Defendant cannot tell whether it is his act and deed.
    The record from Virginia, in the declaration, makes it uncertain whether suit is on said record or on said note, and therefore it is bad. See Chit. Plead. 211, 212, &c.
    
      Mil debit was a good plea. Chitty’s Pleading 402. Demand and notice should have been averred, or an excuse for not doing so, in the declaration; for the general law is, that in actions against endorsers, demand and notice forms a material averment in the plaintiff’s declaration, without which he could not reply by proof; therefore, if he has any excuse, he must aver and prove it, or he must fail. 1 Chit. Plead. 286. A guar, antor is entitled to demand and notice. See Chitty on Bills, 264: Phillips vs. Astling, 2 Taunt. 206. Demand and notice cannot be waived by implication. Chitty on Bills, 308.
   Catron, Ch. J.

delivered the opinion of the court.

This court is of opinion, that the county court was not authorized to grant the appeal in this case, without first taking bond and security as required by the act of 1811, ch. 72, sec. 11. The act of 1831, ch. 21, does not affect this case. We are also of opinion, that the law is for the plaintiff below upon the pleadings. The demurrer to the pleas should have been sustained. Vide Taylor vs. Ross and Owens, at Jackson, 1832.

Judgment reversed. 
      
       Ante, page 395.
     