Winn v. Levy , 3 Miss. 902 ( 1838 )

Mr. Chief Justice Shakkev

delivered the opinion of the court.

The declaration contains three counts, on three several promissory notes, against A. M. Winn, as endorser. The notes were all payable at the Planters’ bank at Vicksburg. The one mentioned in the second count, is described as having fallen due on the 14th of February, 1837, and “it was not presented for payment until the 2d of March, thereafter.” The said Winn suffered judgment by default to be taken against him; and brings his writ of error to correct the judgment for the error above stated.

As endorser, he was entitled to have payment demanded at the maturity of the note, and to notice on failure to pay, but by suffering judgment by default, he has lost his oportunity of contesting the right to recover. He was advised, by the endorsement on the writ, of the nature of the claim against him, and if it was not just, it was his duty to have made his defence. By suffering judgment by default, he admitted that there was cause of action, and he could not have been ignorant of what the recovery against him would be. The second count would have been bad on demurrer but the defect would have been cured by verdict, and it seems to be the object of the statute, as nearly as possible', to place all judgments by default, on an equality with judgments on verdict. The statute speaks of judgment by non sum informatus and nil dicit, and there is no material difference, if there is any at all, between judgment on nil dicit, and by default. We think, therefore, that this objection cannot now be reached.

The judgment must be affirmed.