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also the conduct necessary to be pursued by the holder where the note was indorsed for the accommodation of the maker, and the latter has failed.(a)
In case of a partnership note and a failure of the firm, it will still be necessary to present to one of the partners, or to use due diligence to find one ; a demand at what was their place of business before failure, but not occupied by either of them at maturity, is insufficient.(y)
3. Of other Circumstances. With regard to impossibility connected with the method of presentment, it has already been said that the party who makes the demand must have the note with him at the time ; but if the note or bill is lost, it is obvious that this requirement cannot be complied with.(2) Yet this fact will not excuse want of presentment, as will be seen subsequently.(a)
With respect to the impossibility of presentment as to time, a question may arise where the holder receives a note so near maturity that it will be impossible for him to make a demand before that time. This will be connected with the point, as to what effect the distance of the place of residence or of business of the maker will have upon the suliject of excuse, and will be considered in that connection.(6)
We have already seen that a neglect to present negotiable paper in which no particular time is mentioned for making the demand, is excused, if the holder, within the period at which he should have presented it, puts it into circulation.(c)
Where neither the maker nor his last and usual place of business or of residence can, by the exertion of due diligence, be found, the holder may, by showing these facts, hold an indorser liable.(d) Thus, where the maker of a note is a sailor, who has
(r) Infra, p. 555.
(d) Duncan o. M'Cullough, 4 S. & R. 480; Franklin v. Verbois, 6 La. 727. In this case the notary certified, "that diligent inquiry was made at several places of public resort in this city and elsewhere for the drawer of the note, in order to demand payment, bui he could not be found, nor any person who could tell where he was to be found." The no established place of abode, and is at sea when the note matures, proof of these facts will constitute a sufficient excuse for non-presentment.(e) But if he has a place of residence where his family are living when the note matures, it will be necessary to present it there. (f)
Where the maker has absconded, according to many authorities, the holder is entitled to recover of an indorser, by simply proving this fact and due notice, without showing any further search.(g) But in a late case in Massachusetts it has been held
defendant introduced testimony to show that the maker was living with his mother in the same city where the protest was made. The demand was held sufficient to charge the indorser. Bullard, J. said: “There is no evidence to show that the holder of the note, or the notary, knew the domicil of the maker; and we are of opinion that making diligent inquiry for the maker, and for his domicil, without effect, excuses the want of a formal demand.” In Stewart v. Eden, 2 Caines, 121, the general principle seems to be taken for granted, though a demand was actually made on a clerk of the maker. In Helme v Middleton, 14 La. Ann. 484, a firm on whom a draft had been drawn had dissolved prior to the maturity of the draft, leaving no place of business, nor could they be found when the draft matured. The drawer was held. We have already seen, that, where either of the partners could have been found, by the use of due diligence, the holder would have been bound to present the draft to him. Supra, p. 448, note y. See Galpin v. Hard, :3 McCord, 391.
(e) Moore v. Coffeld, i Dev. 247; Beardsley, J., Taylor v. Snyder, 3 Denio, 145, 151.
(f) Whittier v. Graffam, 3 Greenl. 82; Dennie v. Walker, 7 N. H 199. See Bel. lievre v Bird, 16 Mart. La. 186.
(9) In Anonymous, I Ld. Raym. 743, it is said that “ The custom of merchants is, that if B. upon whom a bill of exchange is drawn, absconds before the day of payment, the man to whom it is payable may protest it, to have better security for the payment, and to give notice to the drawer of the absconding of B; and after time of payment is incurred, then it ought to be protested for non-payment the same day of payment or after it. But no protest for non-payment can be before the day that it is pay. able. Proved by merchants at Guildhall, Trin. 6 W. & M., before Trely, Chief Jus. tice. And the plaintiff was nonsuit, because he had declared upon a custom to protest for non-payment before the day of payment.” In Putnam v. Sullivan, 4 Mass. 45, Pursons, C. J. said: “The first objection made by the defendants is founded on a want of a demand of payment on the promisor when the note was payable. As to this objection, the facts are, that, on the first day of grace, which was the last day of February, notice was left at the lodgings of the promisor, that the note would be due on the last day of grace, with a request to pay it then ; but it also appears that before that time it was known to the parties that he had absconded, and when the note was payable was not to be found. The condition on which an indorser of a note is holden is, that the indorsee shall present the note to the promisor when due, and demand payment of it, if it can be done by using due diligence. Now it appears that when the note in this case was due, it could not be presented to the promisor for payment, and that there was no neglect in the indorsees. We are all, therefore, satisfied that the indorsers are holden on their indorsement in this case, notwithstanding there was no demand on the promisor.” In Widgery v. Munroe, 6 Mass. 449, the maker before the note fell due “stopped payment and went out of the country,” and the court held that the plaintiff was excused
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that, if the maker of a note absconds, leaving no visible property which can be attached, a want of demand or of inquiry for him is not thereby excused so as to charge an indorser, though the latter knew of such absconding (1)
If the maker removes from the place in which he resided and transacted business to another jurisdiction between the time a note is made and its maturity, the holder will not be obliged to go out of his own State in order to make a demand either on the maker personally or at his new place of business or of residence.(i) Whether it will be necessary for the holder to use due
from demanding payment of him. In Hale v. Burr, 12 Mass. 89, Parker, C. J. said: “ It is well settled, that, if the promisor abscond before the day of payment, or has concealed himself, the necessity of a demand is taken away. Due diligence to find him is all that is required in the latter case; and in the case of absconding, even that is not necessary.” There are also dicta to the same effect in Shaw v. Reed, 12 Pick. 132; and in Gilbert v. Dennis, 3 Met. 495, 499, per Shaw, C. J. The point was decided in Lehman v. Jones, 1 Watts & S. 126 ; Reid v. Morrison, 2 id. 401. See Duncan r. M'Cullough, 4 S. & R. 480; Wolfe v Jewett, 10 La. 383 ; Galpin v. Hard, 3 McCord,
In Gillespie v. Hannahan, 4 id. 503, Johnson, J. said : “ It seems to be generally agreed, that the absconding of the maker of a note, or the acceptor of a bill of exchange, will excuse the holder from making a demand.” Sce Gist r. Lybrand, 3 Ohio, 307. In Taylor v. Snyder, 3 Denio, 145, Beardsley, J. lays it down as undoubted law, that absconding is an excuse; and in Spies v. Gilmore, 1 Comst. 321, his remarks are cited with approbation by Jewett, C. J. See also Bruce v Lytle, 13 Barb. 163.
(h) Pierce v. Cate, 12 Cush. 190, Shaw, C. J. said: “The court instructed the jury that, if the maker had absconded, leaving no visible property subject to attachment, no presentment of the note to the maker, or demand at his dwelling-house, or other inquiry for him, was necessary. .... The court are of opinion that this direction is not sustained by the rules of law, and that it is incorrect. We are aware that in some of the earlier cases in Massachusetts it was held that proof that the maker had absconded, or failed, and become insolvent, so that a demand would be mavailing, would be an excuse for want of presentment. But it has been decided, on consideration, and upon principle, that the obligation of an indorser is conditional ; that is, that he will be answerable if, at the maturity of the note, the holder will present it to the maker for payment; and if, thereupon, the maker shall neglect or refuse to pay it, and the holder will give seasonable notice to the indorser, he will pay it himself. These are the conditions of his liability. The holder, therefore, to charge the indorser, must show a compliance with these conditions, or that proper means have been taken to effect a com pliance with them, unless indeed he can prove a waiver of them by the indorser. And this, we think, is the rule as now settled. If the maker has left the State, the holder must demand payment at his actual or last place of abode, or of business, within the State.” It is not stated in the report, but it is a fact personally known to us, that this point was not argued, nor indeed raised, by counsel in this case. The defence was based upon other grounds, because it was supposed that the decisions overruled by this case, and the practice under them, had established the law.
(i) In M'Gruder v. Bank of Washington, 9 Wheat. 598, the maker removed from the District of Columbia to Maryland ten days before the note in sut matured, with
diligence to find the maker's last and usual place of business or of residence in the place which he has left is unsettled, the authorities being conflicting (1) But we consider that it is more in accordance with the rules of law respecting demand to require
out the knowledge of the holder. The notary certified that he went to the place where the maker last resided in order to demand payment, but not finding him there, and being ignorant of his place of residence, returned the note under protest Held sufficient to charge an indorser. Wheeler v. Field, 6 Met. 290, where the maker had left New York for Illinois ; Anderson o. Drake, 14 Jobns. 114, where the maker had removed from Albany to Canada, and a demand at the former place was held sufficient to charge an indorser; Central Bank o. Allen, 16 Maine, 41, where the maker had removed fronı Portland to the Western country, and a written demand at his former residence was held suthcient; Reid v. Morrison, 2 Watts & S. 401, where the maker had left Ireland and gone to America ; Gillespie v. Hannahan, 4 McCord, 503, where the maker left Charleston, and was supposed to have gone to Philadelphia; Galpin 1. Hard, 3 id. 394 ; Gist v. Lybrand, 3 Ohio, 307; Widgery v. Munroe, 6 Mass. 419; Brardsley, J., Taylor n. Snyder, 3 Denio, 145. See the cases cited supra, p. 449, note f.
(;) In Wheeler v. Field, 6 Met. 290, Wilde, J. said: “ The second ground of exception is, that the demand should have been made at the maker's last place of residence in the city of New York, unless it could be clearly proved that the plaintiffs had made reasonable inquiries, unsuccessfully, to ascertain the same. And on this ground we are of opinion that the exception is well sustained. The general rule is, that to charge an indorser of a promissory note, a personal demand on the maker is to be inade; or if he be not found where he ought to be found, and no place of payment is specified, a demand at his place of abode or place of business is sufficient. If he reinoves into a foreign country, or another State, a demand at his new place of residence is not required. . . The demand should have been made at the maker's last place of residence in New York, and the plaintiff's were bound to make diligent inquiries to ascertain it. This we consider indispensable ; and as the jury were not so instructed, but, on the contrary, were instructed that no demand, under the circumstances stated, was necessary, the defendant is entitled to a new trial, notwithstanding the finding of the jury that the notary had used due diligence in this respect." In Galpin v. Hard, 3 McCord, 394, the maker had removed, and it did not appear where he had gone. Johnson, J. said : “ I take it, it is a settled rule, that when the maker of a promissory note has removed from the place where the note represents him to reside, and, for the same reason, where he did reside at the time the note was made, the holder is bound to use every reasonable endeavor to find out where he has removed, and if he succeed, present it for payment.” But in Gist v. Lybrand, 3 Ohio, 307, the court say: “ Whether a demand should be made at any other place is not made a point, or adjudicated upon, in that case (M'Gruder v. Bank of Washington, 9 Wheat. 598). But it seems to us a clear consequence of the decision, that such demand is unnecessary. The fact of removal commits the indorser, and dispenses with all demand, unless a particular place be appointed for the payment of the note in the note itself." It is not clear from the case itself but that the maker had absconded If so, a different rule might apply. The declaration averred that diligent search had been made for the maker, but he could not be found; also, that he had secretly absconded. So, in Reid v. Morrison, 2 Watts & S 201, Sergeant, 1. sai! . “ It was therefore impossible to make a presentment to the maker in Ireland, and it would seem the holder was not bonnd to search for him in a foreign country; but his removal dispensed with any further effort, and made the indorser, ipso fucto, liable
that th: holder should endeavor to find this last place of business or of abode, and present the note there. Our reason for this is, that it is no unfair or unreasonable presumption that the maker left, at his place of business within the State, means and arrange
, ments for attending to the business which he began there and left unfinished there. The different States of this country are considered as foreign to each other in this respect.(k)
An opinion seems to have been intimated that the contiguity of the old and new places of residence would have some effect on the question of excuse, as relating to this point; thus, if the maker acquires a new domicil in a town adjoining his former place of residence, but in a difforent State, that the rule respecting due diligence would require a demand at the latter place.() But this view cannot be sustained, we think, without producing confusion and obscurity in the law, where precision and certainty are of more importance than abstract justice. (m) When the
without it.” In this case the maker had absconded. in Gillespie o Hannahan, 4 Mc Cord, 503, diligent inquiry was made for the maker, and it was ascertained that he had no place of residence in the city in which he made the note. The judge, at Nisi Prius, held this to be insufficient; but his ruling was reversed. The point now under consid. eration does not seem to have been dwelt upon. In Dennie v. Walker, 7 N. H. 199, the rule is stated by Upham, J., as follows : “A removal without the bounds of the government, after the making of a note and before it becomes due, and where no place of payment of the note is specified, renders a demand upon the maker unnecessary; but this is an exception to the general rule, and must be construed strictly. Anything less than an actual change of residence, by removal without the State, would leave the rule too uncertain. In case of mere absence from one's place of residence, it is immaterial whether it is for a longer or a shorter period. If the maker has a known domicil or place of business within the State, a demand of payment at such place is essential in order to charge the indorser."
(k) Gillespie r. Hannahan, 4 McCord, 503 See the cases cited supra, p. 451, note ; (1) Wilde, J., Wheeler v. Field, 6 Met. 290.
(m) In Gillespie v Hannahan, 4 McCord, 503, Johnson, J. said, in substance : In the case of Widgery v. Munroe, 6 Mass. 449, the court say, that if, on the day when the note became due, the maker being then out of the country, the plaintiff was excused from demanding payment of him, and it might seem unreasonable that, when he had only removed across an imaginary line separating two countries, that it should be dispensed with. But it is equally unreasonable that the holder should be compelled to follow him to St. Petersburg. The necessity of a certain rule leaves no alternative but the adoption of one or the other of these extremes. There can be no compromise between them that will not work injustice. So in M'Gruder v. Bank of Washington, 9 Wheat. 598, where the new place of residence was but nine miles from the old one; and yet it was held that the holder was not obliged to present the note at the latter place. Johnson, J. said: “We think that reason and convenience are in favor of sustaining the doctrine that such a removal is an excuse from an actual demand. Precision and certainty are often of more importance to the rules of law than thair