Maxwell, J.
This was an action ©f assumpsit in the cii'-cuit court of Ohio county in the name of James S. Porter against James M. Todd, Abijah N. Johnston, and Hugh Nichols, late partners in business under the firm name of.J. M. Todd & Co.
The declaration contains six special eounts and the usual common counts.
At the first term of the court after the ’ declaration was filed the death of Hugh Nichols, one ©f the defendants was suggested on the record and the office judgment had at rules set aside, and the cause revived against "William Nieh-'ols, the executor ®f the last will and testament of Hugh Nichols, deceased, by and with the consent of the said executor, and all of the defendants joined in filing the plea of non-assumpsit; hut at a subsequent term of the court, by consent of the plaintiff and defendant Nichols, as executor as aforesaid, it was ordered the said plea be taken and regarded as the plea of the said Nichols only, allowing the office judgment had at rules to stand as against the defendants Todd and Johnson, and thereupon the court assessed the damages and rendered a judgment on the writ of inquiry against the said defendants Todd and Johnston for 3,376 dollars and 49 cents, the amount of the damages assessed with [20]*20interest and costs. Afterwards at another term of the court, the defendant Nichols demurred generally to the plaintiff’s declaration and to each count thereof, and the plaintiff joined in the demurrer, which demurrer being considered by the court was overruled, and the parties waiving their right to have the issue tried by a jury referred the whole matter of law and fact to the court, on consideration whereof, the court rendered a judgment against the defanclant Nicli-ols, as executor as afooesaicl, for 3,375 dollars damages, with interest and costs. The defendant Nichols excepted to the opinion of the court and the court gave a hill of exception certifying all the facts proved on the trial.
The point is not “made and distinctly stated in writing in the cause” as to whether or not the case was properly revived against the executor of Hugh Nichols, deceased, by the consent of such executor and is therefore not “ considered or decided.”
The first error complained of is that the court below erred In overruling the demurrer to the declaration and to each count thereof.
Upon a careful examination, I am satisfied that all the counts contained in the declaration are good except the second and third and that the demurrer was properly overruled as to all the counts except the two named. The second and third counts are, in substance, the same, the only difierenco being in the amount and dates of the notes declared on and so that what is a good objection to one is equally a good objection to the other. The second count charges that, “on the 16th day of April 1858, at the city of tit. Louis, in the State of Missouri, II. Gr. liilsfcein & Co. made their certain promissory note in writing bearing date the clay and year last aforesaid, whereby they promised to pay to the order of the defendants, by the name and style of Messrs. J. M. Todd & Co., six months after the elate of said note, the sum of 352 dollars and 64 cents for value received negotiable and payable Without defalcation or discount, and then and there delivered the said promissory note to the said defendants.” This count contains the further averment, “that the place [21]*21appointed in and by the said promissory note for the performance of the contract, the place where the said note was made and signed to wit: the city of St. Lonis is in the State of Missouri; and so the contract, as to its validity, nature, obligation, and interpretation is to be governed by the laws of that State.” Then follows the further averments, “that after the making of the said promissory note and before the same became payable, to wit: on the 20th of April 1858, at the city of Wheeling, in the county of Ohio, aforesaid, in the State of Virginia, the said defendants J. M. Todd & Co., to whom or to whose order the payment of the said sum of money in the said promissory note specified was to be made, for value received, endorsed the said promissory note and by their endorsement ordered and appointed the said sum of money in the said note specified, to be paid to the plaintiff and then and there delivered the said note so endorsed to the plaintiff".”
The averments then follow that, when the note fell due, it was duly protested as to the maker and endorsers for nonpayment, and that by reason of the non-payment, protest and notice, the defendants as the endorsers became liable to pay to the plaintiff the amount of the note with interest thereon.
This count presents the question as to the liability of an endorser or more properly of an assignor, within this State, of paper not negotiable by the laws of this State although it may have been negotiable by the laws of the place where it is made. This count contains no averment that the makers of this note are insolvent or that due diligence has been used, without avail, to make the money off of them, or that due diligence would not have made the money; but seeks to place the liability of the assignors, treating them as endorsers, solely on the ground that the paper is negotiable at the place where it is made.
Under the laws of Virginia, and the laws of-this State ape the same, such a note as is described in this count is not negotiable, and to make the assignor of such a note liable for its payment it is well settled, that the maker must be [22]*22shown to he* insolvent at the time the note falls due, or at the time it is assigned, if assigned after it falls due; or that due diligence has been used against the maker without makiiig'the money, or by the use of due diligence the-money could not have been made.
The fact that the- note may have been negotiable at the-place where it is made will not alter this rule, because the making and endorsing; or assigning' a note, are separate and distinct contracts, each, governed by the law of the place of the contract. 2 Parsons on Notes and Bills, 347-8; Williams vs. Wade, 1 Met., 82, 83; Daw vs. Rouell, 12 N. H., 49; Dunn vs. Adams, 1 Ala., 527; Russell vs. Buck, 14 Vt., 147; Allen vs. Merchants’ Bank, 22 Wend., 215.
The facts averred in-this count not being sufficient to make-file defendants as assignors, liable- for the payment of the amount of the note, the demurrer to it,, as well as to the-third count, was well taken and should not have been overruled.
■ The next cause assigned as error is, that the judgment is-contrary to the evidence in the cause.
This cause assigned as- error presents the inquiry, first,, whether the judgment is supported by the evidence under the special counts, and if not whether the evidence is sufficient under the common counts.
The facts certified show that the notes with the endorsements thereon, together with the- protest thereof described in the second and third counts, were in evidence,, and it seems-to me clear that the plaintiff was not entitled to recover the amount of them under such counts, for the reason given when considering the demurrer to these counts.
The evidence under the first, fourth, fifth and sixth counts, I think, was sufficient to warrant a judgment on each and every one of them. Code of Virginia, 1860, p. 629, § 11; Hayes vs. North Western Bank of Virginia, 9 Gratt., 127.
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Maxwell, J.
This was an action ©f assumpsit in the cii'-cuit court of Ohio county in the name of James S. Porter against James M. Todd, Abijah N. Johnston, and Hugh Nichols, late partners in business under the firm name of.J. M. Todd & Co.
The declaration contains six special eounts and the usual common counts.
At the first term of the court after the ’ declaration was filed the death of Hugh Nichols, one ©f the defendants was suggested on the record and the office judgment had at rules set aside, and the cause revived against "William Nieh-'ols, the executor ®f the last will and testament of Hugh Nichols, deceased, by and with the consent of the said executor, and all of the defendants joined in filing the plea of non-assumpsit; hut at a subsequent term of the court, by consent of the plaintiff and defendant Nichols, as executor as aforesaid, it was ordered the said plea be taken and regarded as the plea of the said Nichols only, allowing the office judgment had at rules to stand as against the defendants Todd and Johnson, and thereupon the court assessed the damages and rendered a judgment on the writ of inquiry against the said defendants Todd and Johnston for 3,376 dollars and 49 cents, the amount of the damages assessed with [20]*20interest and costs. Afterwards at another term of the court, the defendant Nichols demurred generally to the plaintiff’s declaration and to each count thereof, and the plaintiff joined in the demurrer, which demurrer being considered by the court was overruled, and the parties waiving their right to have the issue tried by a jury referred the whole matter of law and fact to the court, on consideration whereof, the court rendered a judgment against the defanclant Nicli-ols, as executor as afooesaicl, for 3,375 dollars damages, with interest and costs. The defendant Nichols excepted to the opinion of the court and the court gave a hill of exception certifying all the facts proved on the trial.
The point is not “made and distinctly stated in writing in the cause” as to whether or not the case was properly revived against the executor of Hugh Nichols, deceased, by the consent of such executor and is therefore not “ considered or decided.”
The first error complained of is that the court below erred In overruling the demurrer to the declaration and to each count thereof.
Upon a careful examination, I am satisfied that all the counts contained in the declaration are good except the second and third and that the demurrer was properly overruled as to all the counts except the two named. The second and third counts are, in substance, the same, the only difierenco being in the amount and dates of the notes declared on and so that what is a good objection to one is equally a good objection to the other. The second count charges that, “on the 16th day of April 1858, at the city of tit. Louis, in the State of Missouri, II. Gr. liilsfcein & Co. made their certain promissory note in writing bearing date the clay and year last aforesaid, whereby they promised to pay to the order of the defendants, by the name and style of Messrs. J. M. Todd & Co., six months after the elate of said note, the sum of 352 dollars and 64 cents for value received negotiable and payable Without defalcation or discount, and then and there delivered the said promissory note to the said defendants.” This count contains the further averment, “that the place [21]*21appointed in and by the said promissory note for the performance of the contract, the place where the said note was made and signed to wit: the city of St. Lonis is in the State of Missouri; and so the contract, as to its validity, nature, obligation, and interpretation is to be governed by the laws of that State.” Then follows the further averments, “that after the making of the said promissory note and before the same became payable, to wit: on the 20th of April 1858, at the city of Wheeling, in the county of Ohio, aforesaid, in the State of Virginia, the said defendants J. M. Todd & Co., to whom or to whose order the payment of the said sum of money in the said promissory note specified was to be made, for value received, endorsed the said promissory note and by their endorsement ordered and appointed the said sum of money in the said note specified, to be paid to the plaintiff and then and there delivered the said note so endorsed to the plaintiff".”
The averments then follow that, when the note fell due, it was duly protested as to the maker and endorsers for nonpayment, and that by reason of the non-payment, protest and notice, the defendants as the endorsers became liable to pay to the plaintiff the amount of the note with interest thereon.
This count presents the question as to the liability of an endorser or more properly of an assignor, within this State, of paper not negotiable by the laws of this State although it may have been negotiable by the laws of the place where it is made. This count contains no averment that the makers of this note are insolvent or that due diligence has been used, without avail, to make the money off of them, or that due diligence would not have made the money; but seeks to place the liability of the assignors, treating them as endorsers, solely on the ground that the paper is negotiable at the place where it is made.
Under the laws of Virginia, and the laws of-this State ape the same, such a note as is described in this count is not negotiable, and to make the assignor of such a note liable for its payment it is well settled, that the maker must be [22]*22shown to he* insolvent at the time the note falls due, or at the time it is assigned, if assigned after it falls due; or that due diligence has been used against the maker without makiiig'the money, or by the use of due diligence the-money could not have been made.
The fact that the- note may have been negotiable at the-place where it is made will not alter this rule, because the making and endorsing; or assigning' a note, are separate and distinct contracts, each, governed by the law of the place of the contract. 2 Parsons on Notes and Bills, 347-8; Williams vs. Wade, 1 Met., 82, 83; Daw vs. Rouell, 12 N. H., 49; Dunn vs. Adams, 1 Ala., 527; Russell vs. Buck, 14 Vt., 147; Allen vs. Merchants’ Bank, 22 Wend., 215.
The facts averred in-this count not being sufficient to make-file defendants as assignors, liable- for the payment of the amount of the note, the demurrer to it,, as well as to the-third count, was well taken and should not have been overruled.
■ The next cause assigned as error is, that the judgment is-contrary to the evidence in the cause.
This cause assigned as- error presents the inquiry, first,, whether the judgment is supported by the evidence under the special counts, and if not whether the evidence is sufficient under the common counts.
The facts certified show that the notes with the endorsements thereon, together with the- protest thereof described in the second and third counts, were in evidence,, and it seems-to me clear that the plaintiff was not entitled to recover the amount of them under such counts, for the reason given when considering the demurrer to these counts.
The evidence under the first, fourth, fifth and sixth counts, I think, was sufficient to warrant a judgment on each and every one of them. Code of Virginia, 1860, p. 629, § 11; Hayes vs. North Western Bank of Virginia, 9 Gratt., 127.
It does not matter that the paper same into the possession of the jilaintiff after it was protested for non-payment, Davis vs. Miller & Co., 14 Gratt., 1.
It remains to inquire whether or not the judgment rem-[23]*23dered on tlie paper described in the second and third counts, is warranted under the common counts.
By the bond executed to. the-North Western Bank of Virginia, which was executed in conformity to terms of the articles of co-partnership of J. M. Todd & Co., Porter as the surety of Abijah N. Johnson, became liable to pay to the said bank all liabilities of whatever nature, which the said J. M. Todd & Co. might incur to the said bank, or bills of exchange, notes, and bonds, made, drawn, endorsed, accepted or guaranteed by the said firm and discounted by the said bank to the extent of 5,000 dollars, the penalty of the bond.
It appears from the facts in this case that all the paper described in the declaration was discounted by the North Western Bank for the use and benefit of the said J. M. Todd & Co., and that the paper described in the first, fourth,,fifth and sixth counts is commercial paper, which was regularly protested so as to make the said J. M. Todd & Co. liable to the bank for the payment of the amount thereof. The paper described in the second and third counts was not negotiable in this State, but was nevertheless protested for non-payment. After the paper, described in the declaration, was protested, Porter paid the amount thereof to the bank.
It seems to me that the amount of the paper described in. the first, fourth, fifth and sixth special counts- might have been recovered under the common counts as money paid for the use and benefit of J. M. Todd & Co., because the said firm had become liable to pay it to the bank and the said Porter by the terms of the bond was bound to pay it. Hall vs. Smith, 5 Howard, 96; Exall vs. Smith, 8. Term R., 310; Child vs. Worley, Id., 610.
The paper described in the second and third counts was-, not negotiable in this State, and the said J.. M, Todd & Co. were not liable to the bank for the payment thereof until the bank could first show the use of due diligence- against the makers of the notes without making the money, or show some sufficient reason why the use of due diligence would have availed nothing; neither of which was done in this ease. [24]*24The said J. M. Todd & Go. not ¡being liable to pay the amount of these notes to the bank, Porter was not bound by the terms of his bond to pay it to the bank, so that the payment of Porter was a voluntary payment and he is not entitled to recover for money paid under such circumstances.
I am of opinion that the judgment complained of ought to be reversed with costs to the plaintiff in error, the demurrer to the second and third counts sustained, and that judgment ought to be entered in favor of the plaintiff below against the defendant below as executor, &c., for the amount of the paper described in the first, fourth, fifth and sixth counts, with interest thereon.
The other judges concurred.
Judgment Reversed.