before the liability of an indorser can accrue; (v) but the authorities are not uniform upon this point. (w)

Where the maker dies before the maturity of the note, demand

(v) In Union Bank v. Willis, 8 Met. 504, a note was signed by A, and on the back was the signature of B & Co., who were not parties to the note. The holder demanded payment of B alone. By the law of Massachusetts, the parties are liable as joint and several promisors. Held, that the demand was insufficient. Hubbard, J. said: "The precise question here presented, we believe, has not been decided in any reported case. If the joint and several promisors are to be considered in the light of partners, then a notice to one must be esteemed a notice to all, as partners are but one person in legal contemplation; each partner, acting in such capacity, being not only capable of performing what the whole can do, and of receiving that which belongs to all, but by such acts necessarily binding all the partners. It follows, therefore, as an incident to such joint relations, that all the partners are affected by the knowledge of one. But in respect to mere joint and several promisors on a note, there is not such absolute cominunity of interest between them, nor such necessary connection with each other, as to constitute them partners. The relationship is confined to the present specific liability of a joint and several promise, and which cannot be extended by the act of one so that his conduct shall necessarily bind the other. As between themselves, one promisor may be a mere surety, and the other the debtor; one surety may have received security for lending his name, the other not. Or, if there are three joint and several promisors, two may be sureties, and the other the principal debtor, although the fact may not appear on the note. As the incidents, then, of a partnership do not attach to such a limited joint liability, there being neither a community of interests nor joint participation of profit and loss, the fact of knowledge on the part of the whole, from the actual knowledge of one, does not follow as a presumption of law; and demand upon one is not, therefore, in law, a demand upon the whole. If then the bringing home of knowledge to each, or proof of a demand upon each, is a fact necessary to be proved, in order to bind third persons, then such knowledge, or such demand on each, must be proved as any other fact." It has been held that notice to each of two or more joint indorsers is necessary in order to render any indorser liable. Sayre v. Frick, 7 Watts & S. 383; Shepard v. Hawley, 1 Conn. 367.

(w) A demand upon one of three joint and several promisors was held sufficient in Harris v. Clark, 10 Ohio, 5. Hitchcock, J. said: "If we were to hold that a demand must be made upon all the makers in order to charge the indorser, such decision would operate to discharge many, if not all, indorsers of notes of a character similar to the one now under consideration. It will be seen that the note is not payable at any parucular place; if it were, a demand at the place would be sufficient. But as it is, a personal demand was necessary. Now suppose the makers resided in different States, or in different and distant parts of the same State, how could demand be made of all so as to charge an indorser? It must be made on the day the note falls due, or, where days of grace are allowed, upon the last day of grace. Will it be said that demand can be made at different and distant places on the same day, through the agency of letters of attorney? I believe such a practice has not been heard of, at least we have found nothing like it in the books." "Upon the whole, although we feel that there are apparent difficulties in the way, we see no substantial objection to considering the makers of a oint and several promissory note in the light of partners in that particular transaction. True, they may be sued separately, or, like partners, they may be sued joiatly; and as the joint and separate property of partners is liable for partnership debts, so the property of all and each of the makers of such a note may be sabjected to its satisfaction." The answer to the main objection would be, that, where the makers live

should, in general, be made of his personal representatives; (x) but where an executor or administrator is allowed by law a certain time within which to settle up the estate, and is not liable before the expiration of that period, it has been held that an indorser is liable without a demand on the maker, provided the note falls due within the time limited,(y) but not otherwise.(z)

at so great a distance from each other as to make a demand on all on the day of ma turity impossible, a demand at that time as to all but one, at least, is excusable.

(x) Price v. Young, 1 Nott. & M. 438; Toby v. Maurian, 7 La. 493; Gower v. Moore, 25 Maine, 16, where it was held, that knowledge on the part of the indorser that the maker had died, that his estate was insolvent, and that the note would not be paid, constituted no excuse for non-presentment. The holder had, prior to the maturity of the note, proved his claim in insolvency against the maker's estate, and notified the indorser of the death, and that he, the indorser, would be looked to for payment. The indorser was likewise notified again a month after the note fell due. The fact that the indorser has become the administrator does not dispense with demand and notice. Juniata Bank v. Hale, 16 S. & R. 157. In Caunt v Thompson, 7 C. B. 400, an action by an indorsee against the drawer, the party having possession of the bill presented it at the acceptor's house, and said to the drawer, who had been made the executor of the acceptor, and was at the last place of abode of the latter: "I have brought a bill from C. (the plaintiff); you know what it is." The drawer replied: “I am the executor of the acceptor; you must persuade the plaintiff to let the bill stand over a few days, because the acceptor has only been dead a few days. I will see the bill paid." Held a sufficient presentment. But in Magruder v. Union Bank, 3 Pet. 87, 7 id. 287, it was held that, if the maker dies and the indorser is appointed his administrator, demand on him as administrator is necessary to charge him as indorser.

(y) This is so declared in Massachusetts, where the time limited is a year. Hale v. Burr, 12 Mass. 86, where Parker, C. J. said: “In England, however, there may be reasons for making a demand upon an executor or administrator of a deceased promIsor in a note necessary, which do not exist in this country; and if the reasons upon which the law is founded do not exist, there is no cause why we should not decide according to the nature and spirit of the contract. In this State, a demand upon an administrator would in most cases be entirely nugatory. He is not obliged to pay any debt of the deceased, except such as are particularly privileged, until a year from his appointment. If sued within the year, he is entitled to a continuance of course. This indulgence is given to enable him to collect the effects of the deceased, and to ascertain their sufficiency to discharge all the debts. If there should be a deficiency, a general distribution takes place among all the creditors, without regard to the character of their demands, unless in the few excepted cases above alluded to. Under these circumstances, should he pay any debt, and it should afterwards appear that the estate is insolvent, he pays at his peril. A prudent executor or administrator will therefore seldom hazard the payment of a debt before he has ascertained the situation of the estate, and a demand upon him would be sure to meet with a refusal. Such a demand would, therefore, be merely a troublesome formality, without any use; and notice to the indorser that, the promisor being dead, he will be looked to for payment, will in every respect be as advantageous to him as a previous demand upon the promisor." See Oriental Bank v. Blake, 22 Pick. 206. This has been so held in Louisiana. Landry v. Stansbury, 10 La. 485.

(z) See Hale v. Burr, 12 Mass. 86; Oriental Bank v. Blake, 22 Pick 906 Putnam

It will be seen hereafter that the insolvency of the maker or acceptor forms no valid excuse for non-presentment. (a) And it has been held that a demand on the assignee is not sufficient. (b) Certainly, if there is no assignee, the demand should be made of the maker himself. (c) If the maker be an unmarried woman when the note is made, but marries before maturity, the husband is the proper party to whom the note should be presented, if ke can be found.(d)

It may be added, that if the promisor should become a lunatiʊ, or otherwise incapable of making a valid contract, presentme.it should of course be made to his guardian, or the parties having legally the management or control of his property and business.

We have already intimated, and shall show more fully he eafter, that, when a note or bill is payable at a particular place, 10 presentment or demand is necessary, as it is sufficient if the note or bill is at that place ready to be delivered up to the party calling for and prepared to pay it.(e)

J. said: "But if the note should fall due after the expiration of the year, and the estate should not be represented insolvent, there would seem to be no reason why the holder should not make a demand on the executor or administrator of the promisor; for he would then be liable to a suit upon non-payment, and upon a demand he might safely pay; and the indorser would have reason to complain of the laches of the holder, if he had neglected to make a demand upon the executor or administrator, and to give notice of a default of payment, under such circumstances."

(a) Infra, p. 446.

(b) In Armstrong v. Thruston, 11 Md. 148, where the makers of a partnership note had failed, and an assignment had been made, a demand at the place of business of the assignee and trustee was held insufficient. Burtol, J. said the demand "ought to have been made on the makers, or at their place of business; their insolvency does not excuse the holder from a compliance with the statute."

(c) See infra, section on Excuses for Absence of Demand of Payment.

(d) In Cromwell v. Hynson, 2 Esp. 511, a bill had been presented to the drawee, and acceptance refused. The bill was then sent to the indorser's house, and shown to his wife, the husband being absent, and the circumstances communicated to her. Held a sufficient demand to charge the indorser.

(e) In Reynolds v. Chettle, 2 Camp 596, a bill accepted payable at H. & Co.'s, bankers, was presented at the clearing-house to their clerks. Held a sufficient presentment. So Harris. Packer, 3 Tyrw. 370, note. In Hunt v. Maybee, 3 Seld. 266, a note, signed Jacob Ferdon, was presented at the place designated in pencil at the foot of the note, to a person who, on being asked, said that he was the maker. Held, prima facie, to be sufficient to charge an indorser. The defendant objected to the admission of the evidence that the party inquired of said he was Jacob Ferdon. Edmonds, J.: "This was complete proof, for it was part of the res gesta; and besides, the objection s that it did not prove his identity, which is an objection as to sufficiency, not competency, and the evidence was offered, not to prove identity, but merely as a part of the maker's refusal to pay. There was no error there."

But if presentment is made at the place specified, or, in the case of a note payable generally, at the place of business of the acceptor or maker during business hours, or at his domicil at a reasonable hour of the day, it would seem that the presentment is sufficient if made to any person to be found on the premises, especially if the maker is absent or inaccessible, for it is the duty of the maker to be present and within reach, or, if absent, to leave some one to pay the note or bill.(f) In the case of bills payable at a specified place, it has been held that an allegation of presentment to the acceptor is proved by evidence of presentment at the place; (g) or where the bill is payable at a banker's, by presentment to his clerk at the clearing-house. (1) But in such case it has also been held that an allegation of presentment at the place was sufficient, without any averment of presentment to either acceptor or banker.(i)

Where there is no person upon whom demand can be made, an indorser is liable without presentment; as where an agent, authorized to sign notes for his principal, made a note which was indorsed immediately after the making, and the principal was dead at the time, none of the parties being aware of his death, it was held that a demand was needless. (j)

(f) See Cromwell v. Hynson, 2 Camp. 596, supra, p. 365, note d; Philips v. Astfing, 2 Taunt. 206, supra, p. 361, note r; Draper v. Clemens, 4 Misso. 52. In Buxton v Jones, 1 Man. & G. 83, 1 Scott. N. R. 19, decided since the Stat. 1 & 2 Geo. IV., a bill was addressed to the drawce, at the number of his house and the name of the street. It was accepted generally. The holder presented the bill at the door of the house to an inmate who was coming out. The acceptor had removed, and the inmate told the holder so. The holder left a card, containing notice of the maturity of the bill, with the inmate. The occupier of the house knew where the acceptor had removed. Held sufficient to charge an indorser. In Branch Bank v. Hodges, 17 Ala. 42, the presentment was made to the book-keeper of the acceptor, at his countingroom, the acceptor being absent. The drawer was held. In Moodie v. Morrall, 1 Const. R. 367, presentment was made to the wife of the maker, as she informed the notary that her husband was out of town. Held sufficient. Presentment at the acceptor's dwelling-house is sufficient, there being no one there to answer for him, and no provision having been made for payment at three o'clock, P. M. Stivers v. Prentice, 3 B. Mon. 461. See Bellievre v. Bird, 16 Mart. La. 186; Hamer v. Johnson, 15 La 242; Oakey v. Beauvais, 11 id. 487.

(g) Infra, p 427, note.

(h) Supra, p. 365, note e.

(i) Infra, p. 427, note.

(j) Burrille. Smith, 7 Pick. 291.

1

SECTION IV.

IN WHAT MANNER DEMAND SHOULD BE MADE.

THE demand should be for an absolute, immediate payment in cash. This would be presumed to be the meaning of a simple demand of "payment." But if the holder saw fit to accept anything else in payment but cash, this would discharge the subsequent parties as effectually as a regular payment in money.(k)

The party making the demand should have the bill or note with him, and should exhibit it; because, as has already been seen, the payer has a right to require its delivery up to him before he pays, and may insist that the holder should produce it; and the latter must be in a condition to do so if required.() If his ability to present it be perfect, and it is, in fact, near and accessible, it may not be absolutely necessary that he should have it in his immediate personal custody, though this is proper.(m)

(k) Infra, chapter on Payment of a Bill or Note.

(1) Supra, p. 230, note x. In Musson v. Lake, 4 How. 262, it was held that a protest, stating only that payment was demanded, is inadmissible to prove a presentment, because it should set forth that the notary had the bills in his possession at the time; Woodbury and McLean, JJ. dissenting, on the ground that, as a notary cannot make a legal demand without presenting the bill, it is a fair inference that he had it with him at the time of the presentment. Contra, Nott v. Beard, 16 La. 308; Deyraud v. Banks, id. 461. In Bank of Vergennes v. Cameron, 7 Barb. 143, the statement in the protest was, that the notary went with the draft to the bank, and demanded payment. Held that this was sufficient. Harris, J.: "In this case the notary states that he went with the draft to the bank and demanded payment. The language, I think, may fairly be deemed equivalent to saying that, when he made the demand, he had the draft with him, and was prepared, in case of payment, to surrender it to the person who should honor the draft on behalf of the acceptor. So far therefore as it relates to the presentment of the draft and the demand of payment, I am inclined to hold that the evidence furnished by the notarial certificate is sufficient." In Draper v. Clemens, 4 Misso. 52, a demand was held insufficient because it did not appear that the bill was produced. In Freeman v. Boynton, 7 Mass. 483, it appeared that the party demanding payment did not have the bill with him. Held insufficient. See Smith v. Gibbs, 2 Smedes & M. 479; Farmers' Bank ». Duvall, 7 Gill & J. 78.

So the indorser, upon offering to pay, has a right to insist on the delivery of the note as a condition of such payment; and a tender of the amount due is not rendered invalid by being made on such a condition, contrary to the general rule that a tender must be unconditional. Wilder v. Seelye, 8 Barb. 408.

(m) In Tredick v. Wendell, 1 N. H. 80, the note was in a bank within a few rods of the maker's house, and the maker was informed, by a letter from the cashier, where the note was, and requesting payment. Held sufficient to charge an indorser.