delivered the opinion of the Court.
This action is brought upon a bill of exchange of which the following is a copy.
$5350 Wilcox County, Dec. 16, 1834.
Twelve months after date of this, my sole and only bill of same tenor and date, pay to the order of Thomas Evans, five thousand three hundred and fifty dollars; negotiable and payable at the office of discount ánd deposite branch bank of the United States at Mobile, for value received, this, the 16th day of December, 1834.
H. SMITH EVANS.
To Geojr&e M. Rives, Mobile.
The plaintiff in error, the payee of the bill, endorsed the same in blank, and the defendаnt in error became the bona fide holder of it by delivery; though the - endorsement in blank was at the time of delivery to the holder,' by himself, and subsequently by his attorney, converted into a full endorsement; the words, pay to Sterling H. Gee, having been written over the endorser’s name. Upon the trial of - the cause in the court below, the bill,- with- proof of protеst for *83 non-acceptance and notice to the drawer and endorser of the protest, was given in evidence. To resist a recovery, “the defеndant offered to prove that the bill was given by him to Charles Gee, for property purchased by himself; that the property bélonged jointly to Charles J. Gee, and Sterling H. Gee, the plaintiff; that they then were, and continue to be, and now are, general copartners; that when the endorsement was made, it was in blank, and that thе said endorsement has been filled up by the plaintiff’s counsel since the suit had been commenced; that Charles J. Gee resides in this state, and did when the suit was brought; and is a citizen of the state of Alabama; and that H. Smith Evans, and George M. Rives, the drawer and drawee of the bill, are also, and were citizens of the state.” The cоurt rejected this evidence, stating, “that the endorsement having been made, and given in blank, the plaintiff was authorized to fill it up, as had been done; and that the faсts set forth could constitute no defence, and were not proper evidence; the court further instructed the jury, that the bill being drawn in this state, by-a person residing in the state, and made payable in the state, upon noii-acceptance and. notice, the endorser was liable -for ten per cent, damagеs on the amount of the bill, for non-acceptance.
We consider the court was right in rejecting the evidence, and in instructing the jury as to the liability of the endоrser for damages.
If by the evidence proposed it was intended to deny the jurisdiction of the court, on account of the citizenship of the parties tо the action, that being averred on the record, a plea to the jurisdiction should have been filed, and such evidence was inadmissible under the general issuе. If it was intended to apply to the jurisdiction on account of the original parties to the bill having been citizens of the same state, when the bill was drawn, then the rule laid down by this court in Turner Adms. v. Bank of North America,
As regards the right of a bona fide holder of a bill to write over a blank endorsement, to whom the bill shall be paid, at any time beforе or after the institution of a suit against the endorser: it has long been the settled doctrine in the English and American courts; and the holder by writing such direction over a blank еndorsement, ordering the money to be paid to particular persons, does not become an endorser. Eden v. East India Company, 2 Burr. 1216; Com. 311; Str. 557; Vincent v. Halock, 1 Camp. 6; Smith v. Clark, Peake, 225.
But it was urged in argument that this suit could not be maintained, because it appears by the record that the action was brought before the еxpiration of the time limited by the bill for its payment. The law is otherwise upon reason and authority. The undertaking of the drawer is not that he will pay the bill, but that the drawee will accept and pay; and the liability of the drawer only attaches, when the drawee refuses to accept; or having accepted, fails tо pay. A refusal to accept is then a breach, of the contract, upon the happening of which a right of action instantly accrues to the рayee to recover from the drawer the value expressed in the bill, that being the consideration. which the payee gave for it. Such is also the undertаking of an endorser before the bill has been presented, for acceptance, he being in fact a new drawer of the same bill upon the terms expressed on the face of it. The case of an endorser is not distinguishable from that of a drawer in regard to such liability. Ballingals v. Gloster, 3 East, 481; Milford v. Mayer, Dougl. 55; Mason & Smedes v. Franklin,
As to the damages which the court ruled the endorser in this case to be liable for, we need only say the statute of Alabama gives them, and applies directly tо the case. Aiken’s Alabama Digest, 328, sec. 5. “ Every bill of exchange, of the sum of twenty dollars and upwards, drawn in, or dated at, and from any place in this territory, and pаyable at a certain number of days, weeks, or months after date or sight thereof; shall, in case of non-acceptance by the *85 drawee, when presented for acceptance; or if accepted in case of non-payment by the drawee, when due and presented for payment, be рrotested by a notary public, in like manner as foreign bills of exchange, and the damages on such bill shall be ten per cent, on the sum drawn for, and shall in every othеr respect be regulated and governed by the same laws, customs, and usages, which regulate and govern foreign bills of exchange. Provided, that such protest shаll for want or in default of a notary public, be made by any justice of the peace, whose act in such case, shall have the same effect as if dоne by a notary public.”
The counsel for the plaintiff in error, also contended for the reversal of the judgment, on the ground of sundry irregularities in the progress of the cause in the court below, apparent on the record. Such as that a general demurrer had been filed, and had not been disposed of; that a nonsuit had been taken by the plaintiff in error, and that a motion to set it aside had been overruled; that the case had been submitted to a jury, without an issue between the parties; and, finally, that the verdict, if an issue was made, had been returned by eleven, instead of twelve jurors. These irregularities, whatever might have been their originаl imperfections, if not waived, were, in our opinion, waived by the defendant going to trial upon the merits, and, cannot now constitute any objection upon thе present writ of’ error. For a writ of error does not bring up for review any irregularities of this sort.
Judgment affirmed, with six-per cent, damages.
This cause came on to be heard on the transcript of the rеcord from the district court of the United States, for the southern district of Alabama, and was argued by counsel. On consideration whereof, it is ordered and adjudged by this Court, that the judgment of the said district court in this cause be, and the same is hereby affirmed, with costs and damages at the rate of six per centum per annnm.