¶1delivered the opinion of the court.
¶2This was a petition containing two counts, to which there was a demurrer, the sole ground of the demurrer being the insufficiency of the facts stated to constitute a cause of action. The demurrer was sustained and judgment thereon for the defendant. The plaintiff has brought the case here by writ of error.
¶3The first count is endorsee against his immediate endorser of a negotiable promissoiy note. There was no averment of any demand of payment of the maker, or notice of non-payment to the defendant; but instead it was alleged that at the times, respectively, of the endorsement and maturity of the note, the maker was wholly insolvent and so continued to the time of suit.
¶4The liability of an endorser of negotiable paper is secondary, and, as a general rule, contingent upon the exercise of due diligence by the holder in demanding payment of the party primarily liable, and giving notice of dishonor to the endorser. There are exceptional cases excusing demand and notice, but mere insolvency of the maker or acceptor does not make one of them. (Chit, on Bills, 855 ; Sto. on Prom. Notes, §§ 203, 241.)
¶5The second count is in the nature of an action on the case for deceit involving the same note as the first count.
¶6This count is loosely framed, but it substantially charges that the maker of the note (then past due), at the time of the assignment, was wholly insolvent, and that his insolvency was well known to the defendant, but unknown to the plaintiff; that the defendant, intending to deceive and de*487fraud, the plaintiff, falsely and fraudulently represented to tlie plaintiff that the said maker was solvent; and that the plaintiff, relying upon the truth of said representations, accepted the assignment and paid the consideration therefor, and charged that by means of the premises the plaintiff was damaged. If the facts charged exist, I think they constitute a cause of action, and the demurrer was therefore, as to the second count, improperly sustained.
¶7The two counts — one being an action ex contractu and the other ex delicto — were improperly united, and had the demurrer embraced that as a cause of demurrer, it ought to have been sustained. But, as the union of incongruous causes of action was not assigned as a ground of demurrer in the court below, we are obliged to dispose of the case as if the petition was not obnoxious to that objection. (R. G. 1855, p. 1231, §§ 7,10.)
¶8the judgment is reversed and the cause remanded.