Charles F. Bemis, Plaintiff in Error, vs. Wm. McKenzie, Defendant in Error, 13 Fla. 553

RAMI)ALL, O. J., delivered the opinion of the court. McKenzie, defendant in error, sued Bemis in the Circuit Court for Madison county as endorser of a promissory note executed by "W. B. Gilbert and John II. Gilbert, dated February 8th, 1860, for the sum of four thousand nine hundred and fifty-eight and 70-100 dollars, payable on the first day of January then next, and endorsed by Bemis to the plaintiff, the declaration alleging that the note was presented for paymeut and dishonored, and defendant notified thereof.

The declaration also contained several common counts, as for money paid, money had and received, and money found due upon account. To this the defendant pleaded, First. Mon-assumpsit. Second. That he endorsed the note after due, and that demand of payment upon the makers was not made within a reasonable time after endorsement. Third. That no notice of such demand within a reasonable time was given. Fourth. That no notice of demand and non-payment had been given before the commencement of this suit.

The plaintiff moved to strike out the first plea on the ground that it is a plea of the “ general issue, and as such, is inadmissible in an action of assumpsit under the rules of the court,” and demurred to the other pleas on the ground that the note being past due when the endorsement was made, no demand or notice of non-payment was necessary. The court struck out the said first plea and sustained the demurrer to the remaining pleas, and ¿judgment was given for plaintiff upon the note.

The defendant assigns for error the striking out of the first plea, and the sustaining of the demurrer, and giving judgment for plaintiff. The ground oí the motion to strike out the first plea is that the general issue or non-assumpsit is inadmissible in an action of assumpsit. This ground is not tenable, because the rules expressly recognize the right to plead non-assumpsit in actions of assumpsit, except on bills of exchange and promissory notes.

It is true that the plea of non-assumpsit as to the count upon the note might be properly struck out, or treated as a nullity, and upon entering a nolle prosequi as to the common counts, the plaintiff might take judgment. 1 Chit. Pl., 515, A. But the plea was good as to the common counts. The rule prohibiting the plea of non-assumpsit is confined to cases where the action is onl/y on the note and on the promise to pay contained in or implied by law from it.

It is to be read as if it were worded thus: In all actions on bills of exchange and promissory notes simpUciter, without any other matter. 2 M. & W., 721, 722. The plea of non-assumpsit should be held to apply to the common counts and not to the count upon the note. The court therefore erred in striking out the first plea, as it'was a good plea to an entire y>art of the declaration. As to the demurrer, the court in sustaining it virtually decided that no demand upon the makers, or notice of nonpayment, was necessary in order to charge the endorser, the endorsement being made' after the maturity of the note.

The court, in Berry vs. Robinson, 9 Johnson, 121, held that a plaintiff was properly non-suited for not proving a demand on the maker and notice of default to the endorser. “ Though the note was endorsed long after it was due, yet the endorsee took it subject to this condition. The books make no distinction on this point, whether the note be endorsed before ■or after it is due. The endorsement in every case, where a ■drawer really exists, is a conditional contract to pay in the ■event of a demand, or $due diligence to make a demand on the maker, and his default.” The same is held in 2 N.

H., 159; 21 Maine, 455; 3 Humphreys, 171; 6 Ala., 865; 4 Man. & Gr., 101; 18 Conn., 361; 26 Maine, 271; 2 Nott & McC., 283; 1 McCord, 199; 2 ib., 398; 2 Rich. 67; 25 Me., 409 ; 3 Wend., 75; 8 S. & E., 351; 3 Bailey, (S. C.) 457; 2 Conn., 419 ; 18 Pick., 260 ; 9 Ala., 153, 160. And it makes no difference whether the note is payable to bearer or to order. Story on Promissory Hotes.

But it is insisted by the defendant in error that the note is dated in Georgia, and that by the law of Georgia it is not necessary that demand should be made and notice of nonpayment given, except in the cases of certain “ Bank Paper.” The declaration, however, does not show that the note was ■made in Georgia, or that the parties to it resided there. The note, a copy of which is appended to the declaration, is dated “ Port Gaines,” and the counsel says the court should take judicial notice that Port Gaines is in that State.

This is scarcely practicable, because there may be several localities bearing that name, and it is within the personal knowledge of members of this court that a place of that name is located in the State of Alabama. And in the absence of any express allegation or proof to the contrary, it is alv^ays held that the law of another State in reference to commercial transactions is deemed to be the same in the other State as it is in the State where the Court which hears the matter is sitting.

The laws of other States and countries are matters to be proved upon a trial like other matters of evidence, and the laws of Plorida have provided the manner of proving the statute laws of other States. There being no allegation that the note or the endorsement was made in Georgia, there is no foundation laid for the introduction of such evidence. The demurrer was improperly sustained. The judgment is reversed and the cause remanded with directions that the court take such further proceedings as may he according to law.