Hall vs. State.-Opinion of Court.

been murder. It is probable the Solicitors and courts have been led into this error by following the law of evidence as laid down in Archibold's Criminal Pleadings, page 432, under "indictment to kill and murder." By reference to the form of the indictment therein given, it will be seen that it is alleged the offence was feloniously, wilfully and of his malice aforethought committed. Also as laid down in 1 Hawkins' Pleas of the Crown, page 225, under "an indictment for shooting at another." This offence is made felony under the statute of 9 Geo., 1 C., 22, known as the "Black Act." The expressions of the statute are, “that if any person shall wilfully and maliciously shoot," &c. Here the allegations in the indictment, and the express words of the act, constitute malice the essential part of the offence. Thus it was necessary to prove the assault committed under such circumstances that if death had ensued such homicide would have been murder. But, it will be seen, by reference to a note found in Hawkins' Pleas of the Crown, page 225, that it was held by the court in England that a shooting in the intemperance of passion, upon such a provocation as would in law reduce the crime of homicide to manslaughter, in which no malice can exist,, was not within the meaning of the act.

Per curiam.-The judgment of the court below is affirmed and this cause remanded back to the Circuit court holden in and for the county of Santa Rosa, and that Court directed to cause to be inflicted the punishment assessed by the jury.

Guild vs. Goldsmith, Haber & Co.-Opinion of Court.

JOSIAH Q. GUILD, PLAINTIFF IN ERROR, VS. GOLDSMITH, HABER & Co., DEFENDANTS IN ERROR.

1. Where a promissory note, payable to order, was endorsed after it was due, it was held that the endorsee was bound notwithstanding to prove a demand of payment from the maker and notice to the endorser, unless there was some special agreement taking the endorsement out of the usual effect thereof, or circumstances occurred making demand and notice of dishonor unnecessary.

2. What is "a reasonable time" for demand for payment and notice of dishonor on a note transferred after it is due, (where the facts are ascertained,) is a question of law, depending on the facts of each particular case.

This case was decided at Marianna.

Writ of error to Santa Rosa Circuit Court.

The opinion of the Court contains a statement of the case, to which reference is made.

Jordan & Chain and McClellan & Barnes for plaintiff in error, cited: Byles on Bills of Exchange, 232 and note; Bishop vs. Dexter, 2 Conn. 419; 1 Yeates, 360; 3 Kent, 93105 and notes; McKenny vs. Crawford, 8 Sergt. & R., 351; Berry vs. Robinson, 9 John., 121; 3 S. C. Const. Rep., 33; 3 Bailey S. C. Rep.; 457.

C. W. Jones, for defendant in error, cited: Brown vs. Davis, 3 T. R. 80; 5 Johnson, 118; 3 John. cases, 5; 4 Mass., 370; 6 Pick., 259; 7 Watts & Sergt., 331; 5 John., 118.

FORWARD, J., delivered the opinion of the Court.

This was an action of assumpist on a promissory note made by one John W. Cook, for $800, alleged to be dated the 4th day of August, A. D. 1859, "payable to the defendant or order on the first day of January, after date, with eight per cent. interest after due." The declaration stated

Guild vs. Goldsmith, Haber & Co.-Opinion of Court.

that the defendant, after the said note was delivered to him by said Cook, to-wit, on the 17th day of January, 1859, at Santa Rosa county, endorsed the said note to the plaintiffs, and the said John W. Cook did not pay the amount thereof, although the same was then presented to him on the day when it became due, of all which the defendant then and there had notice, and afterwards, in consideration of the premises, promised to pay the amount of said note to the plaintiff on request, &c. To this declaration the defendant in the court below plead: 1st. That said promissory note was not presented in manner and form as alleged. 2d. That he had not due notice of the non-payment of the said promissory note in manner and form as alleged. To which pleas a replication was filed, averring that the defendant endorsed the said promissory note to the plaintiff long after the said note became due and payable, according to the tenor and effect thereof. The replication was demurred to by the defendant, who said it was not sufficient in law, "because he says that an endorser of an over-due bill or note is entitled to notice, as though it was a bill drawn at sight." And at December term, 1859, the court overruled the demurrer and gave judgment against the defendant for the amount of the principal and interest due on the note. To which ruling and judgment the plaintiff in error then and there excepted, and brings his writ of error to this court.

The following are the errors assigned:

First. That the court erred in overruling the demurrer of the defendant to the replication of the plaintiff.

Second. That the court erred in giving judgment for the plaintiff upon the pleadings.

It is well settled law both in England and America that the endorsement of a promissory note, after it is due, is equivalent to drawing a new bill payable at sight, and it must be proceeded with as such unless there is some special agreement to the contrary. Chitty on Bills, 242.

Guild vs. Goldsmith, Haber & Co.-Opinion of Court.

Judge Story, in his Treatise on Promissory notes, section 129, says: "It is in fact a request of the endorser that the maker (who stands in this respect very much in the situation of an acceptor) would pay the amount to the indorsee, or to any other holder, if the endorsement is not restricted. Indeed, it may be treated with strict propriety as an authority given to the endorsee to receive the money due on the note, and also an undertaking that it shall be paid to him upon due presentation, and therefore, as involving, in case of dishonor and due notice thereof, the ordinary responsibility of an endorser of negotiable paper."

The contract on the part of the endorser, (and in this case it will be noticed the endorser is the payee of the note,) was among other things, that if, when duly presented, the note was not paid by the maker, he, the endorser, would, upon due and reasonable notice given him of the dishonor, pay the same to the holder.

In Berry vs. Robinson, 9 Johnson, 121, the Supreme Court of New York say: "The plaintiff was properly nonsuited for not proving demand of payment on the maker and notice of his default to the endorser. The books make no distinction on this point, whether a note be endorsed before or after it is due."

So in South Carolina, in Poole vs. Tolleson, 1 McCord, 200, it was held that where a note is endorsed after it became due, demand must be made of the drawer, and notice of non-payment must be given to the endorser to make him liable.

See also Stockman vs. Riley, 2 McCord, 399, and 2 Nott & McCord, 283.

And in Van Hooser vs. Van Alstyne, 3 Wendell, 79, it is laid down that a note transferred after it is due to be considered payable on demand, and the demand and notice must be made in a reasonable time. What is a "reasonable

O'Connor vs. The State.-Statement of Case.

time" is a question of law, where the facts are ascertained, to be decided by the court.

In Byles on Bills of exchange, page 346, the general rule is laid down to be that notice must be given before action brought, within a reasonable time and after the dishonor, and that what is a reasonable time is a question of law, depending on the facts of each particular case. See also Darbishire vs. Parker, 6 East., 3.

This being the law in cases like the one under consideration, it follows as a matter of certainty the court erred in overruling the demurrer to the replication and in rendering judgment against the plaintiff in error as endorser of said promissory note without proof of demand and notice.

Per curiam.-Let judgment be reversed and this cause be remanded back to the Circuit Court, with leave to the parties to amend the pleadings.

JAMES O'CONNOR, PLAINTIFF IN ERROR, VS. THE STATE.

of

1. A venire man stated on his voire dire that he had formed an opinion as to the guilt or innocence of the prisoner, but that such opinion was based on mere rumor; that he had not heard the witnesses or any one speak of the matter by detailing any of the facts or circumstances connectedwith the killing as their own knowledge; that it would require evidence to remove the opinion so formed upon rumor, but that if taken upon the jury, he could readily and without hesitation find a verdict according to the evidence, although that verdict might be contrary to the opinion so formed on rumor.Held, that said juror was competent.

2. A venire man stated on his voire dire that "he,as Coroner of the county,held the inquest on the body of the person for whose killing the prisoner is on trial; that he heard all the evidence that was then before him, but that he had not formed or expressed an opinion as to the guilt or innocence of the prisoner at the bar." The record did not show what evidence was "then before him," or that there was any whatever pointing to the prisoner as the person