DANIEL M. PARKISON, pl'ff in error, vs. RICHARD McKIM, def't in error, 1 Bur. 53

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 law 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-dencc, 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 authorify 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.