After argument, the opinion of the Court was delivered by
Hutchinson, J.This case came here a year ago on a writ of error, upon which the judgment of the county, court was reversed, and the cause remanded for another trial. That decision was made in view of facts offered to be proved on that trial, appearing in the bill of exceptions attached to the record, and which were rejected by the Court. The Court considered, that if all the evidence offered on that trial had been given to the jury, the law arising thereon would have entitled the plaintiff to a verdict. It w;as stated in that case, that the plaintiff offered to prove, that, when he had notice of the demand upon Burnham and his refusal to pay, he, the defendant, promised to make the payment to the plaintiff. But the case presented by these ex*11ceptions, arising from the facts actually proved on the last trial. is a very different one in many respects — particularly in defining the distance oí the maker of the note from the parties, the time of the demand, and also in relation to the subsequent promise of the defendant to pay the note. The evidence detailed in the case certified up, and which is now before the Court, has but a faint bearing upon the fact of the subsequent promise offered to be proved, and does not amount to proof that any such promise was made.
The defendant’s expression, that if the demand were sued, he must pay his note and Cumber his, might have some application to the other note, of which the Court know nothing, but seems not to refer to this.
There is nothing in this, therefore, tending to take the case out of the rulés of law applicable to demand and notice.
As to the fact, that this was a sale and endorsment of a note long over-due, the Court are of opinion, that it can not, under the circumstances, make any difference in the case, and are disposed to treat it as a note endorsed on the day of payment. We are driven, then, to the question, will'the Court, here, adopt the rules of the law merchant, touching the necessity of demand upon the maker, and notice back to the endorser, in order to charge him, as the same are known in England ? The Court see no reason why they should not, where the circumstances of the parties do not render them inapplicable. Where the law in England requires notice to be given back on the same day, if the facilities of demand and notice back are the same here, there is no reason why the rule should not be the same. The law merchant is a part of the common law of England, and as such, is adopted by statute here, so far as it is applicable to our local situation and circumstances, and is not repugnant to the constitution, or any act of the legislature of this state. And so far the courts of this state are bound to recognize it.
The endorser may treat the demand as out of his power and out of his care, till he has notice of non-payment. He may know of the maker’s purchasing a horse or other property ; he cannot attach it, for he can make no writ upon it, while in the hands of the endorsee. Without this rule, every case must rest upon its own peculiar facts, furnishing a fruitful source of litigation, and of uncertainty in the result. The question recurs, therefore, has there been reasonable notice ? When the facts are found, this becomes purely a question of law. Here the facts have been found and are presented in the case. And what are they? They are, that the note was endorsed on the first day of Dec. 1824 — that on the 8th day of the same mouth, payment was demanded of the maker,’and refused — that on the first or second ¿evening after the demand and refusal, notice thereof was given to the endorser, and that during all this period, these parties resided near each other in the same village, and the maker only about two miles from them. Is this reasonable notice ? *12The Court say it is not. Under these circumstances, the demand should have been made in a day or two at farthest, and notice must have been given on the same day of demand. We consider that the plaintiff, by keeping the note that length of time without demand, made it his own, and discharged the endorser from his liability.
John N. Pomroy and Chs. Adams, counsel for the plaintiff, Wm. Bray ton and/. C. Thompson, for the defendant.As to the insolvency of the maker, it is not stated that he was insolvent, but that he was imprisoned, and was reputed to be insolvent and to have no attachable property. But if it were alleged in positive terms, it is unimportant; for it is well settled by the authorities, that notice must be given back to charge the indorser, notwithstanding the insolvency of the maker. Though the maker be poor, yet something may be found by the endorser.
The result of the whole is, that judgment must be entered for the defendant on the verdict.
Judgment for the defendant.