Oliver Crossen, Plaintiff in Error, versus David Hutchinson, Jun.
A demand by the holder of a promissory note upon the maker, and notice to the endorser, are not to be dispensed with, where the promisor becomes insolvent after the assignment, and continues so until and at the time it falls due.
This was a writ of error, brought to reverse a judgment rendered between these parties in the Circuit Court of Common Pleas holden for this county.
The original action was assumpsit by Hutchinson as endorsee, against Crossen as endorser, of a promissory note, signed by one Oliver Buggies, dated on the 1st day of January, 1811 and payable to Crossen, or bearer, on or before *the 1st day of October, then next. The declaration contained two counts. The first count alleged a demand on the maker of the note, and notice of his refusal to pay, in due form. The second averred that at the time of the endorsement, and ever after, the promisor was insolvent, and wholly unable to pay the contents of the note, all which was well known to the endorser.
*187From a bill of exceptions, filed and allowed in the court below, a copy of which came up in the case, it appears that the signatures of the maker and endorser of the note being admitted at the trial, which was had on the general issue, the plaintiff proved that Ruggles, the promisor, at the time of making the note, and from thence until the time when it became due, was generally reputed to be insolvent, and had no visible property, which could be found to be attached; and that he left the commonwealth on the evening of the 6th day of October, five days after the note fell due; and that, on the 7th of the same October, the plaintiff gave notice to the endorser of the non-payment of the note, and that it could not be collected of the maker.
On the part of the defendant, there was evidence that Ruggles, Crossen, and Hutchinson, all lived in the same town, and within four miles or less of each other; that Ruggles was openly with his family in the town, from the 1st to the 6th of October, on which last day he removed therefrom; that he was not concealed, nor his house shut up; that on the 5th of October, he secured, to be paid by his brother’s notes, sundry demands against him, to more than seven times the amount of the note in question, among which was one in favor of said Hutchinson.
The counsel for the plaintiff contended that, under the circumstances proved in this case, the maker of the note being notoriously insolvent, it was unnecessary to make any demand on him, or to give any notice to the defendant, than that which is above stated.
*The defendant’s counsel insisted that, under the circumstances proved, the plaintiff was bound to show a demand on the promisor, when the note became due, and notice to the endorser within a reasonable time after, which he contended was not proved; and that the supposed insolvency of Ruggles was no excuse for not making such demand, and giving such notice, as is required by law in ordinary cases.
The jury were instructed by the justices that, if they were satisfied, from the evidence, that Ruggles, at the time the note fell due, was insolvent, and that no estate of his could be found to be attached, it was not necessary for the plaintiff to prove a demand on him, nor notice to the endorser, before the commencement of the action; and if they were satisfied of the insolvency of Ruggles at the time the note became due, they would find a verdict for the plaintiff on the issue before them.
The errors assigned were the charge of the court to the jury before mentioned; and also that the second count in the declaration *188contains no allegation of a demand on the maker of the note, nor of notice of the non-payment to the endorser.
Dewey,
for the plaintiff in error, cited 2 H. Black. 609, Nicholson vs. Gouthit. — 2 Will. Abr. 429. — Chitty on Bills, 88. — 4 Mass. Rep. 341, May vs. Coffin.
Sedgwick,
for the defendant in error, cited 2 H. Black. 336, De Berdt vs. Atkinson. — 4 Mass. Rep. 45, Putnam & Al. vs. Sullivan & Al. — 5 Mass. Rep. 170, Bond & Al. vs. Farnham.
Sedgwick, J.,
pronounced the judgment of the Court. By the bill of exceptions in this case, it appears that the plaintiff below, to rebut the charge of loches, insisted that it was not incumbent on him, either to demand payment of the maker of the note, or to give notice of non-payment to the endorser, if the jury should be satisfied that the maker of the note was notoriously insolvent, as * well at the time of the assignment of the note, as at the time it fell due. This was the question raised by the counsel, and which should have been resolved by the court. But instead of instructing the jury upon that question, the direction of the court was, “ that if the jury should be fully satisfied by the evidence that Ruggles,” the maker of the note, “ at the time ivhen the note fell due, was insolvent, and that no estate of his could then be found to be attached, in such case it was not necessary for the plaintiff to prove a demand on the promisor, nor notice to the defendant, the endorser, before the commencement of the suit; and that if the evidence satisfied the jury of the insolvencj of Ruggles, when the note became due, they would find a verdict for the plaintiff.”
Now, we are all clearly of opinion, that this direction of the court below was incorrect; for, however reasonable it may be thought, that if one assigns a note of a man living in his neighborhood, notoriously insolvent at the time, and who continues so until and at the time it falls due, that he should not throw the loss of it on the assignee, because he fails to make a demand of payment of the promisor, which would probably be wholly unavailing; or because he fails to give notice to the assignor, which, if given, could be of no benefit to him; yet it cannot be reasonable to dispense with such demand and notice, in a case where the promisor becomes insolvent after the assignment, and continues so until and at the time it falls due; and more especially where, as in the case before us, if notice were seasonably given, the assignor might have arrested the body of the promisor; the opportunity for doing which was lost by the neglect of giving notice; and where, not long before, he had satisfied demands against him to a much larger amount than that in question
*189We are all of opinion that the direction of the court below was erroneous. It follows that there must be a new trial; and let it be had at the bar of this Court,