
    Winn v. Levy.
    If the endorser of a promissory note suffer judgment by default, he cannot take advantage of want of notice of non-payment by a writ of error.
    ERROR to the Warren circuit court.
    Holt and Harrison, for plaintiff in error.
    This was an action by M. A. Levy, against the plaintiff in erról-as endorser of three several promissory notes, for the sum of 863 dollars 56 cents, each, bearing date July 11, 1836, and maturing at six, seven and eight months. Judgment was had in the court below by default, for 2626 dollars, being the aggregate amount of the three notes, with interest.
    The error assigned, and the only one which appears in the record, is, that judgment was rendered for the amount of the note set forth in the second count of the declaration, when it appears from the averments of that count, that the note referred to was not presented for payment on the day it matured; by which laches the defendant’s liability as endorser, was entirely discharged. The note was due at seven months; it matured on the 14th of February, 1837; it was not presented for payment, says the declaration, until the 2d of March, thereafter. It may be remarked en passant, that this is not a mere mistake in the draftsman of the declaration, but it is a substantial defect in the facts of the case, upon which the first endorser of the note, who defended below, obtained a verdict. It is a defect which goes to the foundation of the action. A verdict, under the sweeping provisions of our statute of jeofails, would have cured it. So would a judgment by nil dicit. But a judgment by default, where there is no appearance by the party, carries with it none of the artificial sanctity or infallibility which has been imparted to verdicts and judgments by nil dicit. A judgment by nil dicit, is when the party appears and says, that he can urge nothing in bar or preclusion of the plaintiff's claim; and his appearing and taking no exception to the proceedings are very properly made to cure all errors; not so, however, where “ he appears not, but makes default.” The whole action of the court is then left, as at common law, open to the severest scrutiny. The statute of jeofails of Virginia, is similar to ours; in that part of it which relates to the question under discussion, its language is precisely the same. See 1 Robinson’s Practice, 385. The decisions of the supreme court of that state, as to the effect of the statute of jeofails, upon judgments by default, are so numerous, and so fully sustain the position assumed, that we need but refer the court to a few of the more prominent cases. 2 Randolph, 178; 4 Randolph, 157; 4 Leigh, 422. The last case cited presents an elaborate examination of the question involved in the case at bar.
    Authority need not be quoted, we presume, to show that, upon common law principles, a defect of the substantial kind referred to in the assignment of errors, is ground for a writ of error. Had it been of a slight, technical kind, to be reached only by special demurrer,it is conceded that a writ of error could not be maintained. Gould’s Pleadings, 505-6; 2 Burr. 900.
   Mr. Chief Justice Shakkev

delivered the opinion of the court.

The declaration contains three counts, on three several promissory notes, against A. M. Winn, as endorser. The notes were all payable at the Planters’ bank at Vicksburg. The one mentioned in the second count, is described as having fallen due on the 14th of February, 1837, and “it was not presented for payment until the 2d of March, thereafter.” The said Winn suffered judgment by default to be taken against him; and brings his writ of error to correct the judgment for the error above stated.

As endorser, he was entitled to have payment demanded at the maturity of the note, and to notice on failure to pay, but by suffering judgment by default, he has lost his oportunity of contesting the right to recover. He was advised, by the endorsement on the writ, of the nature of the claim against him, and if it was not just, it was his duty to have made his defence. By suffering judgment by default, he admitted that there was cause of action, and he could not have been ignorant of what the recovery against him would be. The second count would have been bad on demurrer but the defect would have been cured by verdict, and it seems to be the object of the statute, as nearly as possible', to place all judgments by default, on an equality with judgments on verdict. The statute speaks of judgment by non sum informatus and nil dicit, and there is no material difference, if there is any at all, between judgment on nil dicit, and by default. We think, therefore, that this objection cannot now be reached.

The judgment must be affirmed.  