Curia,
per Woodworth, J.
The plaintiff declared against the defendant as endorser of a promissory note, made by Abner Harsha, and Hugh Harsha, payable on the 1st November, 1815. The first count avers a demand of payment on the ilh November, and notice to the. endorser. The second count avers, that before the note fell due, Hugh [259]*259Httrsha absconded to places unknown, and afterwards, on the 4th November, payment was demanded of Abner Harsha, and notice given to the defendant, on the 6th day of Novembert At the trial, the plaintiff offered to prove that Abner Harsha, at the time of making the note, was an infant, which was overruled. Abner Harsha was then offered as a witness, who being sworn on his voire dire, testified that he was interested in the event of the suit. The plaintiff proposed to confine the inquiry to the fact of demanding payment; but the testimony was rejected.
William Williams, attorney for the plaintiff, sworn on his voire dire, testified, that he bought the note in question of the defendant, and paid $73 ; before it fell due, he sold it to a third person, who was not the plaintiff; that after it fell due, it came into his hands again. He commenced a suit in the name of Seth WhHe, who had nothing to do with the suit, the witness having the sole control of the note. The suit was discontinued. In September, 1817, the note became the property of the plaintiff, for whom the witness-commenced this action. The witness was then sworn in chief. The plaintiff offered to prove, that payment was demanded by him on the third day of grace of Abner Harsha ; that Hugh Harsha had absconded before the note fell due ; that on the day after the demand, the witness gave notice of non-payment to the defendant. The witness then stated that" the plaintiff first acquired an interest in the note in September, 1817, and that the relation given by him on his voire dire was true. The defendant objected to the evidence. The Court sustained the objection, and the plaintiff offering no other testimony, directed him to be non-suited. The plaintiff excepted to the opinion of the Court on all the preceding points.
The Court decided correctly in rejecting .the testimony of Abner Harsha : whether he had an interest favourable to the plaintiff or defendant, does not appear ; and without further explanation, the Court had no means of judging. The plaintiff might have pursued the inquiry, and ascertained the nature of the interest; and if it had then appeared that the interest was merely ideal, or against the party call[260]*260ing him, he ought to have been admitted. (8 John. 428.) Without doubt, the Court were authorized to require from the witness a statement of the nature of his interest; but this was discretionary, and does not seem to have been called for. The plaintiff acquiesced in the general answer.
The evidence of Williams ought to have been received; He passed the note to the plaintiff on the original indorsement ; but, the execution by the makers being established,' it does not appear that he had any interest in favour of thé plaintiff’s recovery. The evidence to prove a demand on one of the makers, and the absconding of the other, was relevant and material.
But it is urged, by thé defendant’s counsel, that the noté was transferred to the plaintiff after it became due, and after it had been paid by the witness, Williams, and takeni back by him ; and, therefore, the plaintiff could not recover against the indorser, as upon a promissory note obtained before it became due ; the right acquired by an indorsee, after having charged the indorser, not being transferable. It is a mistake to say that Williams had paid the note, and taken it back, whereby it lost its negotiability. The course of the transaction was this : Williams sold, and transferred the noté to a third person, before it became due: After it became' due, it came back to his hands; which does not imply a payment and taking up the note, but rather that he re-purchased it of the holder. He afterwards sold it to the plaintiff. There is no legal objection to the validity of the transfer of a note after due, provided it remain unpaid, by any of the parties, whether the transfer is made by indorsement or mere delivery. When the indorsee takes á note after' due, it is presumed he was acquainted with, or had notice of the circumstances, which would affect the validity of the note, had it been in the hands of the person who was holder at the' time it became due, and consequently must stand in the character of the person who was the holder at that time. (Chitty on Bills, 141, 142, ed. 1817. 7 D. & E. 430. 3 D. & E. 80. 1 Campb. 383.)
The note being indorsed in blank, the owner had a right to fill it up with what name he pleased ; the defendant had [261]*261ho concern with that question. (11 John. 53.) It was competent to fill up the blank on the trial; but as the Court ex-eluded the testimony, there was no necessity of doing so. A further answer is, that no objection- was made on that ground.
It is also contended, that Williams, being an attorney, eouldnot purchase the note, so as to maintain an action upon it, without shewing that his purchase was consistent with the provisions of the act on that subject. The act of April 21, 1818, has no connexion with this case, which must be governed by the 7th section of the act, (1 R. L. 417.) The former act was passed subsequent to the trial of this cause, and does not affect it. The latter declares, that if an attorney shall purchase a note with intent to commence a suit thereon, and shall commence such suit, he shall be deemed guilty of a misdemeanor. This statute puts the purchase upon the intent. The mere purchase cannot, .1 apprehends warrant the conclusion, that it was for the purpose of prosecution. It might equally well have been for other lawful 'cause. But admitting that the mere purchase of the note was, prima facie, sufficient, it was not conclusive as to the intent. Had the cause progressed, and that point been raised afterwards, it would have been competent for the plaintiff to have rebutted the presumption, and shown the fairness of the transaction, and submitted the question .of intent to the jury. But the conclusive answer to this objection is, that it cannot now be alleged to support the opinion of the Court below, in rejecting -the testimony of Williams. The plaintiff was bound to prove- a demand and notice. Without this he could not proceed a step. When he offers to prove it, it is premature to say, this evidence will answer no purpose, because the purchase was in violation of the statute. It could not, in that stage of the cause, be known what would- be the result of the trial, on that point. It was open to proof, that might be subsequently introduced. It would, therefore, be both absurd and unjust, not to permit the party to make out one part of his case, because, perchance, the plaintiff might not be able to remove another difficulty lying in his way.
[262]*262The only remaining inquiry is, whether the proof offered would support the declaration. The first count alleges a demand of payment, and notice to the defendant on the 4th November, 1815. On that day it became due and payable.
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Curia,
per Woodworth, J.
The plaintiff declared against the defendant as endorser of a promissory note, made by Abner Harsha, and Hugh Harsha, payable on the 1st November, 1815. The first count avers a demand of payment on the ilh November, and notice to the. endorser. The second count avers, that before the note fell due, Hugh [259]*259Httrsha absconded to places unknown, and afterwards, on the 4th November, payment was demanded of Abner Harsha, and notice given to the defendant, on the 6th day of Novembert At the trial, the plaintiff offered to prove that Abner Harsha, at the time of making the note, was an infant, which was overruled. Abner Harsha was then offered as a witness, who being sworn on his voire dire, testified that he was interested in the event of the suit. The plaintiff proposed to confine the inquiry to the fact of demanding payment; but the testimony was rejected.
William Williams, attorney for the plaintiff, sworn on his voire dire, testified, that he bought the note in question of the defendant, and paid $73 ; before it fell due, he sold it to a third person, who was not the plaintiff; that after it fell due, it came into his hands again. He commenced a suit in the name of Seth WhHe, who had nothing to do with the suit, the witness having the sole control of the note. The suit was discontinued. In September, 1817, the note became the property of the plaintiff, for whom the witness-commenced this action. The witness was then sworn in chief. The plaintiff offered to prove, that payment was demanded by him on the third day of grace of Abner Harsha ; that Hugh Harsha had absconded before the note fell due ; that on the day after the demand, the witness gave notice of non-payment to the defendant. The witness then stated that" the plaintiff first acquired an interest in the note in September, 1817, and that the relation given by him on his voire dire was true. The defendant objected to the evidence. The Court sustained the objection, and the plaintiff offering no other testimony, directed him to be non-suited. The plaintiff excepted to the opinion of the Court on all the preceding points.
The Court decided correctly in rejecting .the testimony of Abner Harsha : whether he had an interest favourable to the plaintiff or defendant, does not appear ; and without further explanation, the Court had no means of judging. The plaintiff might have pursued the inquiry, and ascertained the nature of the interest; and if it had then appeared that the interest was merely ideal, or against the party call[260]*260ing him, he ought to have been admitted. (8 John. 428.) Without doubt, the Court were authorized to require from the witness a statement of the nature of his interest; but this was discretionary, and does not seem to have been called for. The plaintiff acquiesced in the general answer.
The evidence of Williams ought to have been received; He passed the note to the plaintiff on the original indorsement ; but, the execution by the makers being established,' it does not appear that he had any interest in favour of thé plaintiff’s recovery. The evidence to prove a demand on one of the makers, and the absconding of the other, was relevant and material.
But it is urged, by thé defendant’s counsel, that the noté was transferred to the plaintiff after it became due, and after it had been paid by the witness, Williams, and takeni back by him ; and, therefore, the plaintiff could not recover against the indorser, as upon a promissory note obtained before it became due ; the right acquired by an indorsee, after having charged the indorser, not being transferable. It is a mistake to say that Williams had paid the note, and taken it back, whereby it lost its negotiability. The course of the transaction was this : Williams sold, and transferred the noté to a third person, before it became due: After it became' due, it came back to his hands; which does not imply a payment and taking up the note, but rather that he re-purchased it of the holder. He afterwards sold it to the plaintiff. There is no legal objection to the validity of the transfer of a note after due, provided it remain unpaid, by any of the parties, whether the transfer is made by indorsement or mere delivery. When the indorsee takes á note after' due, it is presumed he was acquainted with, or had notice of the circumstances, which would affect the validity of the note, had it been in the hands of the person who was holder at the' time it became due, and consequently must stand in the character of the person who was the holder at that time. (Chitty on Bills, 141, 142, ed. 1817. 7 D. & E. 430. 3 D. & E. 80. 1 Campb. 383.)
The note being indorsed in blank, the owner had a right to fill it up with what name he pleased ; the defendant had [261]*261ho concern with that question. (11 John. 53.) It was competent to fill up the blank on the trial; but as the Court ex-eluded the testimony, there was no necessity of doing so. A further answer is, that no objection- was made on that ground.
It is also contended, that Williams, being an attorney, eouldnot purchase the note, so as to maintain an action upon it, without shewing that his purchase was consistent with the provisions of the act on that subject. The act of April 21, 1818, has no connexion with this case, which must be governed by the 7th section of the act, (1 R. L. 417.) The former act was passed subsequent to the trial of this cause, and does not affect it. The latter declares, that if an attorney shall purchase a note with intent to commence a suit thereon, and shall commence such suit, he shall be deemed guilty of a misdemeanor. This statute puts the purchase upon the intent. The mere purchase cannot, .1 apprehends warrant the conclusion, that it was for the purpose of prosecution. It might equally well have been for other lawful 'cause. But admitting that the mere purchase of the note was, prima facie, sufficient, it was not conclusive as to the intent. Had the cause progressed, and that point been raised afterwards, it would have been competent for the plaintiff to have rebutted the presumption, and shown the fairness of the transaction, and submitted the question .of intent to the jury. But the conclusive answer to this objection is, that it cannot now be alleged to support the opinion of the Court below, in rejecting -the testimony of Williams. The plaintiff was bound to prove- a demand and notice. Without this he could not proceed a step. When he offers to prove it, it is premature to say, this evidence will answer no purpose, because the purchase was in violation of the statute. It could not, in that stage of the cause, be known what would- be the result of the trial, on that point. It was open to proof, that might be subsequently introduced. It would, therefore, be both absurd and unjust, not to permit the party to make out one part of his case, because, perchance, the plaintiff might not be able to remove another difficulty lying in his way.
[262]*262The only remaining inquiry is, whether the proof offered would support the declaration. The first count alleges a demand of payment, and notice to the defendant on the 4th November, 1815. On that day it became due and payable. The general principle is, that the holder must.use due diligence ; for the indorser is only responsible after a default on the part of the maker. (2 John. Cas. 76. 2 Caines, 344.) In Stewart v. Eden, (2 Caines, 127) the declaration wa.s in the common form, stating a demand on the maker, a refusal to pay, and notice to the indorser. It appeared that the makers could not be found at their store ; and a demand was made on their clerk. The Court considered the precise question raised here, that is to say, if the maker, when a note falls due, cannot be found, nor payment demanded of him personally, should not the declaration state this fact specially, instead of averring generally, that the note was presented and payment refused ? It was held, that evidence of due diligence in the holder to obtain payment, without an actual demand, will support, the averment; and under such a count the plaintiff may give evidence of any diligence which is deemed equivalent to an actual presentation of it to the maker. The same principle is recognized in Saunderson v. Judge, (2 H. Bl. 510) and Ogden v. Conley, (2 John. 274.)
But if the first count was objectionable, the second is special. It was, that Hugh Harsha had absconded; that a demand on the maker was made on the 4th, and notice given to the indorser on the 6thNov. This was not too late; for the 4th Nov, fell on Saturday in that year, so that the next legal day for serving notice was Monday, the 6th. (2 Caines, 343.) When the plaintiff offers to prove notice given the next day after the demand, it must be understood as intending the next day proper for the transaction of secular business. At least, it ought so to have been considered by the Court, until the plaintiff had been called on to answer whether, by the evidence, it was intended to prove notice on Sunday.
It is also objected, that a demand made by Williams could be of no avail, on the ground, it is presumed, that he wras not the holder when the note fell due. Notice must, un[263]*263áoubtedly, be given by the holder or his agent. Williams sold the note before due ; but it is to be inferred, that he had the possession of it when he demanded payment, and must be considered the agent of the holder for that purpose, until it is shown he acted as a stranger, and without authority. We cannot pre-judge this question, previous to an inquiry, in what character and by what authority Williams acted. Had the evidence been admitted, the defendant might then have pursued the examination, and had it appeared, subsequently, that he did not stand in a situation to make a legal demand, the defendant would be entitled to the benefit of the objection. On the whole, I am of opinion that the judgment ought to be reversed, and a venire de novo issued bj the Washington Common Pleas.
Judgment reversed.