Stout v. Hopping. review a decision simply because it is a wrong decision; Rex v. Worcestershire, 18 Eng. C. L. 190; Rex v. Monmouthshire, 10 Eng. C. L. 459; Rex v. Justice, 18 Eng. C. L. 57; unless indeed where a court has erroneously denied to itself jurisdiction, and for that reason refused to act at all, 1 Chitty's Practice, 197; and see also the several cases of mandamus in this court, re-instating appeals dismissed for a supposed want of jurisdiction. The case being therefore clearly within the jurisdiction of the Common Pleas that court having acted upon the return, judged of it, and set it aside for alleged defects apparent on its face, we cannot interfere with that decision in this extraordinary and summary way. To grant this writ, we must first assume that the order or judgment of the Pleas, is utterly void; which we have no right to do. This application was based upon false premises. It was argued that we should compel the Common Pleas to re-instate the proceedings, and proceed in the matter; as we compel them to re-instate an appeal and proceed to a hearing. There is no analogy between the two. In the case of an appeal, the court of Common Pleas refuses to take upon itself a jurisdiction which the law gives it. It will not act at all on the matter before it, but dismiss it. In the present case, the court has assumed its rightful jurisdiction-judged on the matter before it, and for defects apparent upon the papers, set it aside. This distinction between dismissing a proceeding, and setting it aside, is perfectly obvious. We may dismiss, or in other words, refuse to act upon a case brought into this court on Certiorari, for want of a bond, and we may set that case aside, or in other words reverse it, for defects apparent upon the record. Precisely as the Common Pleas have done in the case now before us; they have set it aside for defects apparent on the papers. I at first, thought it might be useful to go at some length into the nature of the writ of mandamus, but upon reference to 1 Chitty's Practice, tit. Mandamus, I find the whole subject treated of at length, and a full reference to the cases. I content myself therefore, by referring generally to that head, in the book mentioned. It is not necessary to say whether the court below committed an error in their decision. The United States Bank v. James W. Southard. The first question being settled against this application, it leaves nothing more to be decided. Mandamus denied. JOHNSON ET AL. v. FIELD. Motion for Mandamus, upon same state of facts substantially. For the reasons assigned in the preceding case, the application must be denied. Mandamus denied. THE UNITED STATES BANK v. JAMES W. SOUTHARD. On motion to set verdict aside. After a promissory note is dishonored, an indorser's promise to pay it, made without a full knowledge that he is discharged by the holder's laches in not demanding payment of the maker, is void. The indorser's knowledge that the maker had not paid the note, and his acknowledgment that he did not expect it would be paid by him, does not alter the question. But such promise is not void, merely, as for want of consideration, nor under the statute of frauds, as a promise to pay the debt of a third person. W. Thomson for plaintiff. Hartwell for defendant. The opinion of the Court, was delivered by NEVIUS, J. This was an action brought by the plaintiffs The United States Bank v. James W. Southard. against the defendant as the indorser of a promissory note, made by D. D. Southard, for three hundred dollars, payable to the defendant, at ninety days, and dated on the 24th of April, 1836. The declaration is in the usual form, and the plea non assumpsit. Upon the trial at the Somerset Circuit, the plaintiffs, after proving the signatures of the maker and indorser, offered to prove that after the note had been dishonored, the defendant made an express promise to pay it. This evidence was objected to, on the ground that until a demand of payment and notice of nonpayment was proved, such promise was without consideration and void under the statute of frauds; and more especially, if it was made by the defendant without knowing that he had been discharged by the laches of the plaintiffs. But the court overruled the objection. The plaintiffs then proved by W. Thompson, Esq., that in March, 1837, he called upon the defendant, and showed him the note. That he admitted his own signature, and that of the maker, and said that he would pay it as soon as he could raise the money. That he had no dependence on his brother Dan to pay it. That he had been informed by his uncle, that the note lay over unpaid, and he had expected it to be sent on for collection, before. The witness then requested him to sign his appearance to a writ, which he did. Witness did not understand from defendant, that payment had been demanded of the maker, or that he had received notice of non-payment. Upon this evidence the court recommended a verdict to be rendered for the plaintiffs, with leave to the defendant to move to set it aside, and enter a non suit, if this court should be of opinion that the evidence did not in law, warrant a recovery against him. The defendant in support of his motion to set aside this verdict, insists in the first place, that the promise proved, was void for want of consideration, and also under the statute of frauds, it being a promise to pay the debt of a third person; and second, that it was made without a full knowledge that he had been discharged by the laches of the holders. There are many cases in the books, which contain a full answer to the first objection. In 12 Wheaton's Rep. 183, Thornton v. Wynn, it was adjudged, that an unconditional promise by the The United States Bank v. James W. Southard. indorser of a bill or note, to pay it, or an acknowledgment of his liability, after knowledge of his discharge by the laches of the holder, will amount to an implied waiver of due notice of a demand. If the indorser by such promise, waives all exception to want of demand and notice of non-payment, he places himself in the same condition he would be in if such demand and notice had been proved. It remains then to inquire whether the promise in this case, which was absolute and unconditional, was made with a full knowlege of the facts. There is nothing to vary this case from that of the case of Johnsons v. Barkalow, 1 Har. R. 397, except that the defendant at the time of the promise, said, that he had no dependence on the maker to pay it, and that he had understood from his uncle, that the note was laying over, unpaid; and he expected it would have been sent on for collection, before. I cannot perceive that this amounts either to an express waiver of a demand on the maker, or that it proves a knowledge on the defendants' part, that no demand had been made from which the law would imply a waiver, on his promise to pay. Suppose he did not expect that the maker would pay the note, this would not absolve the holders from their obligation to make the demand; and suppose it be true, that he was informed that the note was lying over unpaid, this was no evidence to him that it had been duly demanded of the maker: and his expectation that it would before have been sent on for collection, does not prove that he knew that he was discharged by the laches of the holder. There is then no evidence in the case, showing that the defendant's promise was made upon full knowledge of his having been discharged. If the doctrine, therefore, laid down in the English books on this subject, and by the Supreme Court in New York, and confirmed by our own Court, in the case above referred to, be correct, the verdict in this case should be set aside; for I see no material distinction in the cases. DAYTON, J., being connected with the defendant, gave no opinion. Verdict set aside. CITED in Sussex Bank v. Baldwin, 2 Harr. 496. The United States Bank v. James W. Southard. THE UNITED STATES BANK v. JAMES W. SOUTHARD. NOTE. The following statement and brief in the preceding case, were received after the opinion of Justice Nevius was put to press. This was an action brought against the defendant as indorser of a promissory note, and was tried at the Somerset Circuit in April, 1838. The following is a statement of what took place at the time of the trial, from the notes of Justice Ford. W. Thomson, Esq., sworn. The note produced is subscribed. in the hand writing of Dau D. Southard, and indorsed in the hand writing of the defendant. The plaintiff produces no proof, that payment was demanded of the maker of the note, or that notice of non-payment was given to the indorser. He offers to prove that after the note had been dishonored, defendant made an express promise to pay. Hartwell for defendant, objects to the evidence, and insists that a demand on the maker, for payment, and notice of his neglect, to the indorser, are conditions to be performed by the holder, and if he fail to prove them, the indorser is discharged in law: and it becomes the sole debt of the maker of the note. A promise of the indorser to pay the debt of another, is without consideration, and does not bind him, especially if made in ignorance of his rights. James S. Green for plaintiff, answers and insists that proof of demand on the maker, and notice of non-payment to the indorser are required as a general rule, but there are well established exceptions to it. If the defendant knowing of irregularity in those respects, nevertheless promise to pay the note, it is equivalent to proof of demand and notice; it is a waiver of them. Hamilton for defendant. A promise is void according to the American cases, if made without knowing he has been discharged by the laches of the holder. BY THE COURT. To judge whether the indorser has made a waiver of demand and notice, we must know the facts. Let the witness proceed. |