removal is simply to another place within the same jurisdiction, due diligence must be used to find the maker at the place to which he has removed.(n)

We have already alluded to the circumstance of the note being dated at a particular place, and the presumption to be drawn. therefrom. We should add, that neither this fact nor any other excuses the want of due diligence; it only raises the question, What is in that case due diligence? And we incline to think the answer should be, that this date does not excuse a holder from demanding payment of the maker elsewhere, if within the State, and the holder knows, or ought to know, where he is; but that a holder is not bound to make, more inquiry than within that town, unless there be something which tells him that by going elsewhere within the State he will find him.

Where the maker, at the time of signing the note, lives in another State from the one in which the note is dated and delivered, and in which the holder lives, a different question is presented. Where the party who receives a note under such circumstances knows, when he takes it, where the maker lives, and

abstract justice. On this point there is no other rule, that can be laid down, which will not leave too much latitude as to place and distance. Besides which, it is consistent with analogy to other cases, that the indorser should stand committed, in this respect, by the conduct of the maker. For his absconding, or removal out of the kingdom, the indorser is held in England to stand committed; and although from the contiguity and, in some instances, reduced size of the States, and their union under the general government, the analogy is not perfect, yet it is obvious that a removal from the seaboard to the frontier States, or vice versa, would be attended with all the hardships to a holder, especially one of the same State with the maker, that could result from crossing the British Channel."

(n) Anderson v. Drake, 14 Johns. 114, where the maker had removed from New York to Kingston, both places being in the State of New York, Thompson, C. J. said : "I am inclined to think that where a note is not made payable at any particular place, and the maker has a known and permanent residence within the State, the holder is bound to make a demand at such residence, in order to charge the indorser. Whoever takes such note is presumed to have made inquiry for the residence of the maker, in order to know where to demand payment, and to assume upon himself all the inconvenience of making such demand, and the risk of the maker's removing to any other lace before the note falls due. As the demurrer, therefore, in this case admits the permanent residence of the maker to have been at Kingston when the note fell due, and that known to the plaintiff, he was bound to demand payment of the note at that place; and not having done so, the indorser is discharged." La. Ins. Co. v. Shamburgh, 14 Mart. La. 511, where the maker had removed from New Orleans to Plaquemine; Bellievre v. Bird, 16 id. 186. See Gillespie . Hannahan, 4 McCord, 503; Wilde, J., Wheeler v. Field, 6 Met. 290; Sergeant, J., Reid v. Morrison, 2 Watts & S 401.

has sufficient time before the maturity of the note within which to cause a proper demand to be made upon the maker, it would seem to follow that he should be considered as taking the risk of a proper presentment in the State where the promisor resides. We think also that it follows from the general principles relating to the contract of indorsement, that due diligence would require a demand at the place in which the maker lives.(0)

(0) Taylor ». Snyder, 3 Denio, 145. The facts of the case were, that the promisor, a resident of Florida, made and dated the note in Troy, N. Y. The holder knew this fact as early as a month or two before the note matured. The indorser also knew it at the time of indorsement, but no stress is laid upon this circumstance. The demand was made on the indorser at Troy, and it was held insufficient. Beardsley, J., in a very able and elaborate decision, after stating that the fact that the note was dated at Troy did not make it payable there; and reviewing the cases and law on the subject of excuse, saying that the excuses were exceptions to the general rule, which must be construed strictly, continued: "We are, then, to inquire whether these exceptions are to be multiplied, and extended to a case where no change in the condition of either party has taken place, where the maker, when the note was made and indorsed, had a known residence in another State, and which had remained unchanged at the maturity of the note. It is palpable that this exception, if made, must be placed on some new principle; it cannot be allowed on the ground which upholds the others. The facts in this case are unchanged, and as the reason for making an exception does not exist, the exception itself should not be allowed. Unless, therefore, the general position is true, that one who indorses for a maker who lives in another State may be held liable without any demand being made on the maker, I think the defendant was not liable in the case at bar. And if any such general rule of law as I have stated exists, it cer tainly may be shown; but that it has no existence is, as I believe, not only according to the universal understanding amongst commercial men, but also according to the settled course of business in the commercial world. The indorsement of a note is an order to the maker to pay the amount to the indorsee or holder, as is specified and agreed in the note, and an engagement by the indorser, that if the note is duly demanded of the maker, and not paid, or if it shall be found impracticable to make a demand, the indorser will himself, on receiving due notice, pay the amount to the indorsee or holder. Now, where such an order is drawn upon a maker who resides in another State, and which is well known to the person in whose favor the order is drawn, upon what principle can it be said that a demand of the maker is unnecessary? The indorsee voluntarily consents to take such an order, and why should he not perform the condition on which the ultimate liability of the indorser depends? I confess I see no reason why he should not. Here is no mistake, or misapprehension of fact, at the time the indorsement is made. The indorsee knows where the maker resides, and that it is in another State. He knows that, by law, unless the intervention of a State line makes a difference, the maker must be sought where he resides, and the demand must be made there. When the time for payment arrives, the maker is still at his former residence ; the facts of the case are precisely as they were when the order was drawr Why, in such case, should the State line make a difference in the construction and regal effect of this contract of the indorser? It was fairly entered into between the parties; let it then be fairly observed and performed by them. I can well understand why such an order, made by an indorser upon the maker of a note, then residing within this State, but

But it will be seen from the authorities cited in the note, that this view is not universally adopted.(p)

The same doctrine has been held where the promisor lived in

who removes into another State before the note falls due, should receive a different construction, and that it would be unreasonable to require the holder to follow the maker to his new residence, in order to demand payment. Here a new and unlookedfor event has occurred, which, like the absconding of a maker, or an inability to dis cover his residence, may very reasonably be held to excuse a demand. In these respects, the indorser should be held to stand committed by the act of the maker. But where the facts in reference to which the parties contracted were fully known to them, and are in no respect changed, I am unable to discover any principle which will excuse the maker from making a demand, or using proper diligence to make a demand, as in ordinary cases. The intervention of a State line has, in my opinion, no possible bearing on the question." Bank of Orleans v. Whittemore, Superior Ct. Mass., 20 Law Rep. 333, where the note was made and dated at Boston, and the maker resided in Newbern, N. C. This case was affirmed in the Supreme Court, 12 Gray, Burrows r. Han negan, 1 McLean, 309 In this case, the maker lived in Newport, Indiana, and the note was made and dated at Cincinnati A demand at the latter place was held insufficient It will be observed that nothing is here said about the knowledge of the maker's residenco by the holder. In Smith v. Philbrick, 12 Gray, the maker, two years before the note, which was payable at three months, was made, removed from Boston, where he had lived and transacted business, to Port Lavacca, Texas, where he resided and conducted his business when the note matured. The note was made and dated at Boston, between which place and Port Lavacea the mail passed in twelve days. The notary certified that he went with the note to the maker's place of business in Boston, and finding no one there to pay the note, protested the same. Held, that a personal demand at Port Lavacca was not necessary, unless the holder proved affirmatively that the holder of the note, at the time it became due, knew of the maker's residence; that all that was required was the exercise of due diligence to make a demand in Boston, and that such had been used in this case. Sed quære. See infra, p. 459, note c.

note.

(p) In Story on Prom. Notes, § 236, it is said: "It seems also that, if the maker of a promissory note resides and has his domicil in one State, and actually dates, and makes, and delivers a promissory note in another State, it will be sufficient for the holder to demand payment thereof at the place where it is dated, if the maker cannot personally, upon reasonable inquiries, be found within the State, and has no known place of business there." The authority which the learned author cites is Hepburn v Toledano, 10 Mart. La 643. It is not clear from the case whether the maker lived in a different State from the one in which the holder resided, or removed after making the Nor does it appear that the indorsee knew where the maker lived. Porter, J. said: "The statement of facts shows that the note was dated in New Orleans, but not made payable there, and that the drawer resided in Kentucky at the time of the protest, and does so now. The only question which this case presents is, whether the holder of the note was obliged to go out of the State to demand payment. There is some difficulty as to the place where demand is to be made, when the maker of a note or acceptor of a bill has been a resident of the State, and before the time of payment has changed his domicil; but if he lives in another country, the indorsees cannot be presumed to know his residence, and all that the law requires of the holder is due diligence at that place where the note is drawn." It will be seen that the learned judge cites, as an authority, the case of Anderson v. Drake, 14 Johns. 114, supra, p.

a different country from that in which the holder resided at the time the note was indorsed to him. (q)

It seems now to be well settled that mere distance is no excuse for non-presentment,(r) although there are opinions to be found in some of the earlier reports to the effect that the holder may wait, on the day the note falls due, for the maker to come and pay; and if the note is dishonored, that a reasonable time will be given within which to cause a proper demand to be made.(s)

But distance may have some effect in another point of view. Thus, where an indorser transfers a note to the holder so soon before maturity that the former must know the impossibility of the demand being made at the very day the note falls due, we think that this indorser, with reference to his immediate indorsee, would be considered as having waived his strict right to require a demand at maturity.(t) But this cannot apply to the prior

453, note n, which is a case of removal to another country. In M'Gruder v. Bank of Washington, 9 Wheat. 598, Johnson, J. said: "In case of original residence in a State different from that of the indorser at the time of taking the paper, there can be no doubt." He then goes on to state, that the question of removal to another State prior to maturity is a difficult one, and to decide that a demand at the latter place is unnecessary. It is not easy to see which view the judge adopted.

(q) Spies v. Gilmore, 1 Comst. 321, 1 Barb. 158, where this is considered as a legiti mate conclusion from the doctrine laid down in Taylor v. Snyder, 3 Denio, 145, supra, p. 454, note o, Gardiner, J. dissenting, on the ground that “Expediency and public convenience require that the necessity of a personal demand should be confined to cases where the maker resides within the States or Territories of the Union. It is difficult to prescribe any other rule which will not leave too much latitude as to place and distance, and of course be fluctuating where it should be certain. Instances will readily occur to every one in which making a demand in a foreign country would be attended with little inconvenience, and others in which it would be impracticable. Between these extremes there is a wide interval which would be opened to litigation, which sound policy requires to be closed."

(r) Johnson, J., M'Gruder v Bank of Washington, 9 Wheat. 598, 601, note; Bank of Orleans ". Whittemore, supra, p. 455, note o. See also the cases cited supra, pp. 450-455. (s) Haddock v. Murray, 1 N. H. 140. See Freeman v. Boynton, 7 Mass. 483; Parker, C. J., Barker v. Parker, 6 Pick. 80.

(t) Abbott, J., Bank of Orleans v. Whittemore, 20 Law Rep. 333; Story on Prom. Notes, § 265 But in Chitty on Bills, 10th Lond. ed., p. 266, it is said: "The circumstance of the holder having received a bill very near the time of its becoming due, is no excuse for neglect to present it for payment at maturity; for he might renounce it if he did not choose to undertake that duty, and send the bill back to the party from whom he received it; but if he keep it, he is bound to use reasonable diligence in presenting it." We think that this should be qualified according to the statement in the text. It will be observed, that in the case put the indorser himself has lost his remedy against any prior indorser, unless under similar circumstances; and the effect of the indorsement would probably be the same as if the note were indorsed after maturity

indorsers, who transferred the note long enough before it fell due to have a proper presentment made. (u) The same question would occur where a joint note is indorsed, the indorser knowing that the makers lived so far apart that a demand on both could not be made on the same day. Here also we think that if the holder presents the note to one when it falls due, and to the others as soon as he reasonably can, he has done all that due diligence can require, and would not lose his claim on the indorser.(v)

What will constitute due diligence to find the maker cannot be prescribed by any fixed rule to which all circumstances must bend, as each case depends necessarily, in a great degree, upon its own peculiar facts. It has been held, that if the holder goes with a bill within reasonable hours to the house to which it is directed, and finds the door closed, he is entitled to protest it without any further inquiries for the drawer or acceptor; (w) and the same seems to have been held with reference to the maker of a note in which no place of payment is specified. (a) But we think that some inquiry should still be made for the payor; or at least that this is the safer as well as the better way.(y)

(u) Story on Prom. Notes, § 265.

(r) Abbot, J., Bank of Orleans v. Whittemore, 20 Law Rep. 333.

(w). Hine v. Allely, 4 B. & Ad. 624. But in this case, as reported 1 Nev. & M. 433, it would seem that some inquiry was made for the acceptor. See Buxton v. Jones, 1 Man. & G. 83, 1 Scott, N. R. 19. In Ogden v. Cowley, 2 Johns. 274, some inquiry was made.

(x) Shed v. Brett, 1 Pick. 413. In this case the notary testified that he made diligent search for the promisors, but could not find either of them. Parker, C. J. said : "And the question is, whether going to their place of business, finding it shut, no person being left there to answer any inquiries, is due diligence We put out of the case the declaration of the witness, that he made diligent inquiry, because it does not appear where or of whom he inquired; and as the promisors both lived in Boston, if inquiry was necessary, it would hardly seem that enough was made. It seems, however, by the authorities, that what was done was sufficient, provided the witness went to the place of business of the makers, in business hours, which is not stated in his testimony. And if, upon further application to the notary, he is not able to state this fact, a new trial may be had, or the plaintiff ought to become nonsuit. But supposing this to be with the plaintiff, he is entitled to recover." If the holder had done all that due diligence required, then the fact that the makers had removed would seem to be immaterial. But the law is, that where the maker has removed to another place in the same State, a demand at the last place, or inquiries to find it, are indispensable. It is difficult to reconcile this case with the general rules of law concerning demand, and we doubt the decision.

(y) In Collins v. Butler, 2 Stra. 1087, one of the questions was, whether the plaintiff had shown sufficient by proving that the maker shut up the house and went away