The State

V.

James.

Sed per Curiam. It is a general rule with regard to arrests of judgment upon matter of law, that whatever is alleged in arrest of judgment, must be such matter as would for arresting upon a demurrer or plea in bar, be sufficient to overturn or judgment destroy the action. 1 Cromp. 327. And the rule is the same as would have both in civil and criminal cases.

a

The ground

must be such,

been good on demurrer or plea in abatement.

Now there is no doubt, but the act of 1748 would have been a good plea in bar to this prosecution, if it had been pleaded; for it expressly declares, that in all and every case, where any penalty, fine, or forfeiture hath been, or shall be inflicted, or imposed by any act of assembly, the time for prosecuting such offenders shall be limited to six months after the time of the offence committed, or penalty incurred, ́and not afterwards. If, then, this act would have been a good plea in bar, and would have destroyed the prosecution in limine, there can be no doubt but it is good cause to arrest the judgment, as the cause of action, or rather prosecu tion, was gone in law after the expiration of six months, and it was admitted, that this prosecution was not commenced until long after that time. The pleading issuably, or denying the facts and going into the merits of this case, which might have been in the defendant's favour, does not in a criminal case, deprive him of this advantage of the arrest of judgment.

Let the judgment be therefore arrested.

Present, BURKE, WATIES and BAY.

EDWARDS against THAYER.

ASSUMPSIT on five notes of hand, for 50%. each,

Charleston District, 1799.

Indorsee of

a promissory

against defendant as indorsor of Moses Sarcedas, who had note is bound

latély become a bankrupt.

off.

to use due diligence to get the money

from the ma

ker of it, and payment, then

if he fails in

he is bound in cases to

all

The defence set up, was want of due notice on the part of the holder that the notes had not been duly paid It appeared in evidence, that the drawer had become insolvent, after the drawing and indorsing of these notes; and that the holder had omitted to protest them for non-pay- uice thereof to ment, or to give the defendant notice thereof; whereupon, before he can the jury, under the direction of the judge who tried the maintin cause, found a verdict for the defendant.

give due no

the indersor

an

action against him.

A constructive notice arising from

A motion for a new trial was made to the court of ap- the insolvenpeals, on the ground of misdirection.

Mr. Holmes, in support of the motion, contended, that this case formed an exception out of the general rule of mer cantile law, respecting notice and due diligence. That a protest or formal notice to the indorsor was unnecessary in this case, as it was notorious to all the world, that Sarcedas had become a bankrupt, and therefore it would have been a work of supererogation, to have notified him of what every body knew before, and the defendant himself must have known it.

To this it was answered, by defendant's counsel, that the law of merchants made no such exception out of the general rule, as the one contended for. Every indorsee or holder of a note, is bound to use due diligence to obtain his money from the drawer of the note; and if he fails, to give due notice thereof to the indorsor. This is the condition upon which every indorsement is made, and imposes this obliga

ey or supposed insolvency of the maker of the note, is

not sufficient;

actual notice

should be gi ven agreeable to the rules of

mercantile

law.

Cunn. o Bills, 62.

tion on the indorsee, which if he fails to perform, he loses his money. He has himself to blame for his laches. It would be a most dangerous thing to commerce, if rumour or reports, or the common fame of the day were to be substituted as notice of non-payment by the drawer of a bill of exchange or promissory note, instead of a protest, or other good and legal notice of such failure; for which reason the law requires positive, not such implied notice, and for this good reason, because the indorsor may have funds in his hands, which he might otherwise be induced to part with; or the means of indemnification within his reach, which he might otherwise neglect to make use of upon vague reports, but which certain information would justify him in detaining, or pursuing.

Per Curiam. The plaintiff in this case seems to rely upon common fame or report as a sufficient justification for not protesting the notes in question, or giving due notice of nonpayment by the drawer. In order to form a correct idea of this case, it is necessary to consider the true nature of an indorsor on a note of hand. As long as a note of hand remains unindorsed, it has no similitude to a bill of exchange; but when it is indorsed, its resemblance begins, and it is then governed by the same rules. It then becomes an order by the indorsor, on the maker of the note, to pay the indorsee the contents. The indorsor, from that moment, becomes the drawer. The maker of the note is in nature of an acceptor, and the indorsee is the person to whom it is made payable. The indorsor, therefore, only undertakes in case the maker of the note does not pay. The indorsee, therefore, is bound to apply to the maker of the note. takes it upon this condition, and therefore in all cases must resort to him. He must know who he is, and where he lives; and if, after the note becomes payable, he is guilty of neglect, and the maker becomes insolvent, he loses his money, and cannot come upon the indorsor. 2 Burr. 676. Therefore, before the indorsee of a promissory note brings an action against the indorsor, he must shew a demand, or

He

V.

Thayer.

due diligence to get the money from the maker of the note; Edwards just as the person to whom a bill of exchange is payable, must shew a demand, or due diligence to get the money from the acceptor, before he brings his action against the drawer; so that the rule is exactly the same upon promissory notes as it is upon bills of exchange. In the case under consideration, it does not appear that any diligence was used at all to get the money from Sarcedas, the maker of these notes, after they were due, or any notice of non-payment ever given to the indorsor; so that none of the requisites of the law have been complied with on the present occasion. We are all, therefore, of opinion, that no suit can be maintained on these notes against the indorsor, as plaintiff is bound to prove a demand or due diligence to get the money from the maker of the notes, and due notice thereof to the indorsor. A constructive notice arising from insolvency, or supposed insolvency, is by no means sufficient to charge the indorsor. Actual notice should have been given and proved, agreeable to the mercantile usage and custom.

New trial refused, and rule discharged.

Present, BURKE, GRIMKE, WATIES and BAY.

Charleston District, 1799.

In the construction of policies of insurance, the

the parties are

ed more than

ter.

Not

CROSS and CRAWLEY against SHUTLIFFE and AUSTIN

CASE on a policy of insurance.

The vessel in this case was insured on a voyage from

intent and Charleston to the Cape de Verd Islands, and from thence to meaning of the coast of Africa, at the rate of eight per cent. for six to be regard- months, and one per cent. a month after that time, during the strict let her stay on the coast. Instead of going to the Cape de Verd touching at a Islands, the vessel proceeded directly to the coast of Africa, the point of her ultimate destination, at once, and arrived in a vessel has a safety, where she lay four months, during which time her privilege to bottom was eaten out with worms, in consequence of which call at,is node

port in the

course of a

voyage, where

viation within she was condemned as unfit for sea.

the meaning

of the policy,

because it is a

The jury, under the direction of the presiding judge,

privilege in found a verdict for the plaintiffs, to the amount of their de

tended for the

benefit of the mand.

insured, which he may waive

This was a motion for a new trial, on the ground of mis

for the gene- direction.

ral interest of all concerned, if he pleases.

Mr. Desaussure, for the underwriters, and in support of this motion, stated, that the ground upon which he meant to rest his case, was deviation in the course of the voyage. This, he said, was a very important principle in mercantile law, and ought to be well understood and settled in our courts of justice. For if it was once admitted that a ship or vessel which was insured to one port or place, or on a certain specified voyage from port to port, &c. had a right to go to any other port or place, or on any other voyage than the one specifically mentioned in the policy of insurance, wherever the master or owners might choose, it would place all the underwriters in the world at the mercy of the insured or their agents, and would render all commerce uncertain, as no insurer could tell where such vessel might go, or what tisks he had to insure against. It was, therefore, of great moment to commerce, that this principle should be fixed and