In Bates v. Ryland, 6 Ala. Rep. 668, we had occasion to consider the effect of a contract, by which a note is received in payment of a pre-existing debt. In that case, after an elaborate examination of the authorities, it was held, that the creditor might declare for the precedent debt, or consideration, but could not recover, without showing the same degree of diligence, as would be necessary to recover from the defendant, on his indorsement.
It was also held, that when the maker of the indorsed note was insolvent, and died before the creditor was by law required to sue him, the indo'rser was directly liable. In this case, it does not appear that the note of Campbell, received in payment of the debt, was indorsed to. the plaintiff, but that does not vary the case, because, unless a sufficient excuse was shown, the diligence required in either case, would be ascertained by the character of the instrument transferred. If it was mercantile paper, by demand and notice. [Milton v. De Yampert, 3 Ala. Rep. 648.] If not governed by the commercial law, then by bringing suit to the first Court, to which it *958could be brought against the maker. [Jordan v. Garnett, 3 Ala. Rep. 610.]
As no suit was brought in this case, or any diligence employed to collect the money of the maker, it becomes necessary to inquire, what will be a sufficient excuse for the want of diligence. Ip the case of Bates v. Ryland, cited from 6 Ala. Rep., it was held, that the death, and insolvency of the maker of the note, before the holder was obliged to commence suit, was a sufficient excuse. So in Trotter v. Crockett, 2 Porter, at page 411, the Court held, that where a fraud had been practiced, as when the maker of a note given in payment of an existing debt, was represented to be solvent, when he was insolvent, or when the note was a forgery, it would be a sufficient excuse for the want of diligence.
The result of these decisions, may be thus summed up— when a note or other instrument, is received in payment of an existing debt, the creditor must use due diligence to recover it, from the maker, or he cannot sue the debtor upon the ori- ' ginal consideration. If the instrument so transferred is governed by the commercial law, ■ by a demand and notice of non-payment. If not mercantile in-its character, by a suit thereon to the first Court to which suit can be brought, as required by the statute, unless a fraud has been practiced on the creditor in the transfer, as by a false representation of the solvency of the maker, or unless the instrument so transferred, has no legal validity; as for example, if it be forged; for there is in every such transfer, an implied warranty, that the instrument is legally valid, and that a judgment may be recovered thereon against the maker.
With this exposition of the law, we proceed to the consideration of the declaration. The fourth count charges as an excuse for want of diligence in collecting the money, that the note was not legally due, being given for a gaming consideration. This comes within the rule above laid down. The note was not a valid security, being declared void by statute, there was therefore, no necessity for bringing a suit upon it, and upon offering to return the note, the plaintiff could recover upon the original consideration.
• The fifth count is the same as the preceding, with the additional averment, that the defendants guarantied, that the ma*959ker of the note was legally liable to pay it, which is what the law would imply, if no express warranty had been alledged. It is therefore substantially the same as the preceding.
The sixth count allcdges, that the defendant knew that Campbell, the maker of the note, was insolvent, and unable to pay, and “artfully, and fraudulently, concealed the fact from the plaintiff,” &c. We are not prepared to say, that the mere silence of the defendants at the time of the transfer, of the insolvency of Campbell, if known by them, would be a fraud. By the term, “ artful concealment,” we understand, that some unfair practice was resorted to, by which the plaintiff was intentionally deceived. So considering it, we think the count good, and the Court therefore erred in sustaining the demurrers to these counts. '
The Court also erred in its charge to the jury, that the plaintiff could not recover, unless he proved, a demand of Campbell, and notice of non-payment in a reasonable time to the defendants. If the note was given upon a gaming consideration, the plaintiff was entitled to recover the original consideration, upon offering to return the note.
The remaining question, is the decision of the Court requiring the answer of the defendants to be read, although not responsive to the interrogatory. The intention of the Legislature in the passage of the act under which these interrogatories were filed, was, that they should be a substitute for a bill of discovery. The answers are to be “ evidence at the trial of the cause, in the same manner, and to the same purpose and extent, and upon the same condition in all respects, as if they had been procured upon a bill in Chancery for discovery, but no further, or otherwise.” [Clay’s Dig. 341, § 160.]
Ttíe portion of the answer objected to, was not evidence against the plaintiffs. The question propounded, called on the defendant to state, whether the debt had been paid in any other way, than by the transfer of Campbell’s note. In answer to which, the defendant goes on to speak of the contract, by which Campbell’s note was received. This was a totally distinct matter from that inquired of; and although the witness may be allowed to speak of any thing which relates to the immediate subject, upon which he is called on to answer, and his answer must be taken entire, or not at all; the rule *960does not apply when, as in this case, wholly irrelevant matter is introduced. If the defendant had thought proper, he might have interrogated the plaintiff, as to the nature of the contract, by which the note was transferred, but he cannot under the pretence of answering a different question, give evidence of the contract. This is the effect of the case of Lady Ormond v. Hutchison, 13 Vesey, 53, referred to by the plaintiff’s counsel.
Let the judgment be reversed,and the cause remanded.