#### DANIEL M. PARKISON, *pl'ff in error, vs.*RICHARD McKIM, *def't in error,*

5 > *Error to Iowa county. )*

When a party to a suit has been notified under the statute, to appear and be examined as a witness on the trial and appears according to the notice, and is willing to be sworn and examined, ho may be examined as a witness in the cause, whether the party who gave the notice wishes it or not, and although he may object to his being examined at the trial.

In an action by. the indorsee against the indorser, where the plaintiff declares upon a negotiable promissory note in the common form, with the usual averments of presentation, non-payment and notice, a note under seal, indorsed by the payee to the plaintiff, does not support the declaration, and cannot bo read in evidence to the jury.

A note under seal, although it may be made payable to order, is not negotiable, and the indorsee of such a note cannot maintain an action upon it in his own name, against either the maker or indorser.

The indorsement of a note under seal is not a legal transfer of the instrument, nor does it make the indorser liable to the holder, or authorize him to insert any guarantee of payment over the indorser’s name; it is nothing more than an order or authority to the holder to receive the money from the maker.

In actions between indorsee and indorser of negotiable promissory notes, the questions as to the sufficiency of the notice and what shall constitute due diligence, where the facts are ascertained, are questions of law, and ■cannot be submitted to the jury.

McKim brought an action of assumpsit against Parkison in the Iowa District Court. The declaration contained the usual common counts, count on an account stated and a special count upon the following promissory note under seal, and the indorsement thereon:

“On or before the first day of June next, I promise to pay D. M. Parkison or order, the sum of two hundred dollars, for value received. "Witness my hand and seal this 17th day of February, 1340. (Signed) JOSEPH CALDWELL, [Seal]”

“Pay the within to Richard McKim,

(Signed) D. M. PARKISON.”

Upon the trial of the cause, the plaintiff below offered the note and indorsement in evidence to the jury, which was objected to by the defendant, but the court overruled the objection, and the note was read. It was proven that the note was presented to the maker at maturity and payment demanded, and that notice of nonpayment was given to Parkison the indorser, but the precise time of giving the notice could not be fixed; it was not, however, stated *54*by any*of *the*evidence, to have been given within less than four days after demand and refusal of payment. It also appeared in the evidence that Parkison lived within eight miles of Mineral Point where payment was demanded of the maker.

Previous to the trial, Parkison had given notice under the statute, that he wished to have McKim sworn and examined as a witness. McKim attended under the notice and was willing to ho sworn, but at the trial the counsel for Parkison declined calling upon him. Ho then gave notice to Parldson’s counsel to have him (Parkison) sworn asa witness,and upon Parkison being called and not appearing, he insisted upon being sworn and examined himself, which the court allowed to be done, and to which the defendant’s counsel excepted.

After the evidence, the defendant’s counsel requested the Court to instruct the jury: “That if the jury find that the maker of the note lived at Mineral Point at the time when the note became due, and that the indorser lived within *eight*miles of *there,*that a notice of non-payment given to the indorser four days or more after the non-payment would not be reasonable notice.”— The Court, declined giving the instruction in the form in which it was asked, but instructed the jury: “That in case of non-payment by the maker on the day of payment, the plaintiff could not recover unless he proved that he gave notice of the non-payment to the indorser as soon as, considering the situation of the parties, he reasonably could; but that the jury must be the judges from the circumstances of the case as proved, whether or not the notice was reasonable.”

The jury returned a verdict in favor of the plaintiff for *the*amount of the note and interest, upon which the court rendered judgment.

Parkison sued out a writ of error to reverse the judgment of the District Court, and assigned the following errors in the proceedings below:

“1st. The court below erred in permitting the plaintiff below to be sworn as a witness.

2d. The court erred in permitting the note to be read in support of the declaration.

3d. The court erred in refusing to instruct the jury as requested by the counsel for the defendant below, and in giving the instructions which it did.”

*55Moses M. Steong for pl’ff in error:

The first error depends upon the sufficiency of the notice given *to*the defendant belotv to be sworn as a witness. The law only authorizes the parly giving the notice to be sworn himself, in caso the party notified fails to attend or refuses to be examined, and when the notice has been reasonable. In (his case, the defendant was not present at the trial, and the notice was given to his counsel during its progress. It will not be insisted by any one, that, as a general principle, this notice was sufficient. The notice previously given to the plaintiff, certainly did not authorize him to force himself as a witness in the cause against the will of the defendant.

The second error brings us to the consideration of the note upon which the action is brought. It is an instrument under seal, and as such is not negotiable. The ordinary indorsement does not authorize the indorsee to maintain an action upon it in his own name, *either against the*maker or indorser. The action of assumpsit can only be maintained on simple contracts, and a sealed instrument cannot be introduced to support any declaration in that form of action.

Upon the third assignment of errors, we contend, that if the court is asked to give a principle of law, applicable to the case, in charge to the jury, and refuses to do so, it is error. The court was asked to instruct the jury, that if a certain state of facts existed, the notice was not reasonable. This instruction the court refused to give; but on the contrary, charged the jury that they must judgo whether the notice was reasonable or not from the circumstances of the case. In both the refusal and the charge given, the court erred. The authorities upon the subject fully establish the principle, that when the facts are ascertained, whether the notice is reasonable or not, is a question of law for the court, and not one of fact for the jury. They also establish the point, that upon the facts in this case, the notice was not reasonable. Chitty on Bills, 509, 510, (notes and authorities there referred to.) Byles on Bills, 159. Law Library, no. 42. *Tindell and others, vs. Brown,*1 T. R. 1G8. *Darbyshire vs. Parker,*6 East. 3, note. *Lenox vs. Roberts,*4 Peters’ Con. Rep. 164, and note. *Bank of Columbia vs. Lawrence,*1 Peters, 581. *Bush vs. Swan,*9 Peters, 45. *Dickens vs. Bull,*10 Peters, 581.

Dunn for def’t in error:

*56As to the sufficiency of the notice to the indorser, and whether the question is one of law or of fact, the authorities are conflicting. The best guide which this court can have on that point, is its own decision in the case of *Johnson vs. Wilson's admr.,*made at the July term, 1840. The more reasonable rule is, to judge of the sufficiency of the notice by the circumstances of each case.— Chitty on bills, 51 i; *id.*518, note o.; *Taylor vs. Breden,*8 John. Rep. 172.

The objection which has been raised *to the note*sued on is not well founded. The note has no legal seal to it, and the indorsement has nothing purporting to be a seal. There are common counts in the declaration, and the finding of the jury may have been .under some of them, as there was evidence in support of them, and a positive promise to pay was proven.'

Strong, in conclusion:

The case of *Johnson vs. Wilson's admr.*is not of binding authority in this case, because there, there was evidence of in relation to agreement between the parties, which the court said must govern the case. The note read from Chitty on bills, 518, does not support the principle that has been contended for. The case of *Taylor vs. Breden,*in 8 John. Rep. cited by the counsel for the defendant, was brought on a judgment rendered in the State of Maryland, and the question of notice in that case was not decided by the court in New York.

The legislature of this Territory has made any *device*used by way of a seal, a sufficient seal, (Slat. Wis. 156.) This effectually establishes the character of the instrument sued on. It is no answer to the argument to say, that there were common counts in the declaration, and that there was other evidence than the note before the jury. The note itself does not support any of the counts, and if the court below committed material error in its decision, the judgment must be reversed, and it matters not how many legal decisions were made, or how much legitimate testimony was given in the progress of the cause.

Opinion of the Court, by

Judge Miller.

This was an action of assumpsit brought in the District Court for the county of Iowa, by defendant in error against plaintiff in error.

In the tenth section of the act entitled *‘*an act supplemental to the act concerning testimony and depositions,’ approved February '19th, 1841, it is provided, that in all actions, or proceedings at *57law in civil cases, either party may give notice to the adverse party, that he wishes to have said party sworn as a witness in such case; and if said adverse party shall not appear at the time of trial, or shall refuse to be sworn or to testify, or shall fail to take and produce his deposition as therein- after provided, then the party giving such notice, if the notice shall be deemed by the court sufficient, may himself be sworn as a witness in such cause. The defendant gave the plaintiff notice to appear in court at the trial of the cause, and testify. The plaintiff did so appear, and was willing to give evidence as a witness in the cause, when the counsel of defendant declined having him sworn. The plaintiff then gave notice to defendant’s counsel at the bar, and during the progress of the trial, that he desired to have him, the defendant, testify in the cause, when the defendant was called, and making no answer, the court admitted the plaintiff to be sworn and testify as a witness. This is the first error assigned..

This is a peculiar and novel statute, but the court must give to it its proper effect. The party is notified to appear to be sworn as a witness, and he must either be present and consent tobe sworn and testify as a witness, or produce his deposition; and in default thereof, the party giving the notice will be admitted as a witness. We are disposed to consider the notified party in the same light' as any other witness subpenaed in the cause. If a witness is subpenaed by one party and not'called, the other party can call him.- When a deposition is taken and filed, *it becomes the*property of both parties, and can be used by either party, on complying with the rules of the court. 8 Sergt. & Rawle, 580. If the party shall produce his deposition, taken and executed according to the provisions of the statute and the rules of court, it can be read on either side in evidence. If the party notified shall appear in court at the trial, in pursuance of notice, and is willing to give evidence as a witness, he may be sworn, whether the party who notified him calls him to the stand or not. It is not necessary for liim even *to*call upon the opposite party, as was done in this cas e. In this there was no error.

The plaintiff, as indorsee of a promissory negotiable note, declared against defendant as indorser. The declaration set forth a promissory note and the indorsement thereof to the plaintiff- by defendant, before due, with the usual averments of demand of payment and notice of non-payment. The paper offered in evi-*58dencc, was a note under seal; to the reading of which tho defendant’s counsel objected, which objection was overruled and the testimony admitted. In this the District Court committed an er» ror. It was not proper evidence in support of tho declaration. — • The variance between the note set forth in the declaration and the note offered in evidence, is very apparent.

The court charged tho jury, that in case of non-payment by the maker on the day of payment, the plaintiff could not recover, unless ho proved that he gave notice of the non-payment to the indorser, as soon as, considering the situation of the parties, he reasonably could, but that the jury must be judges, from the circumstances of the case, as proved, whether the notice was reasonable. In this charge, it is considered that the District Court erred.

This note, being a note under seal, was not negotiable; 2 Bin-ney, 154; 1 Dallas, 208. The seal stripped it of its negotiability, according to the principles of the law merchant; and consequently the indorsement by the defendant, did not vest in *the*plaintiff a legal right to sue in his own name. If, then, the plaintiff has no legal right by virtue of the indorsement, to sue the maker in his own name, by what right can he sue the indorser? The indorsement by defendant was not a legal transfer of the note; it was no assignment, but merely an order or authority to the plaintiff to receive the amount of it from the maker. It never can ho consistent with the intent of the parties, or wi(h the law, (hat every man who puts his name on a bond is to be considered as a new drawer of the bond; and if we stop short of that conclusion, the plaintiff cannot recover. The law is decided to be, that the mere indor-ser of a bond or a sealed instrument, is not liable in law to the in-dorsee; 1 Bay’s South Carolina Reports, 400; *Folwell vs. Beaven,*13 Sergt. & Rawle, 311. Nor does such indorsement authorize the holder to insert any guarantee of payment over the indorser’s name. Nor will the indorser be liable on an allegation of a promise, unless it be clear and explicit, and clearly established by testimony.

In cases arising upon the indorsement of negotiable paper, the questions as to the sufficiency of the notice, and what shall constitute due diligence, when the facts are ascertained and determined, are of law, and cannot be submitted to the jury. On this point there is a conflict in the decisions, but the weight of author*59ify is in favor of the principle here stated. In England the rule is settled in this way. It is so settled by the Supreme Court of the United States, which is the rule of decision for this court.— Chitty on bills, 509, 510, 514, 515, 516; 1 T. R. 168; 6 East. 3; *Bank of Columbia vs.*Lawrence, 1 Peters, 581; *Lenox vs. Roberts,*4 Peters’ Cond. Rep. 164; *Bush vs. Swan,*9 Peters, 45; *Dickens vs. Bull,*10 Peters, 581.

Moses M. STKONG,'for pl’tff in error.

F. J. Dujin, for def’t in error.

The case of *Johnson vs. Wilson,*decided at the term of 1840, of this court, was ruled, exclusively, on the agreement of the parties, on the subject of demand and notice.

Judgment reversed.