This was an action of assumpsit against the endorser of a promissory note. The defendant demurred to the declaration, and his demurrer was overruled. Saying nothing further, final judgment was rendered against him, and he appealed. Two causes were assigned for demurrer: first, that the insolvency of the maker of the note was not averred: and, secondly, that the date of the notice was not averred. It is sufficient to aver notice without specifying the time it was given j under such averment all necessary proof is admissible. And it is not requisite to aver the insolvency of the person that made the note. Under the Statute the liability of endorsers attaches on receiving due notice of non-payment or protest. Rev. St. 108, sec. 9. The demurrer was, therefore, properly overruled.
But it appears the court below gave judgment for $150 debt, and $72 75 cents damages for the detention of the debt. The action being assumpsit, this judgment was inappropriate and irregular. It should have been for the damages assessed, and the court might have assessed them. Rev. St. 630, sec. 80. Besides, plaintiff laid his damages at only $200, and yet had judgment for $222 75. If, therefore, the judgment could have been considered substantially formal, it is erroneous for excess. The judgment is reversed.