ne found, nor his last and usual place of abode or of business, no notice can be necessary, because it is impossible.(7)

When the maker has absconded, some authorities regard this fact as a sufficient excuse for non-demand, while others hold that reasonable endeavors should be used to find his last place of residence or business. (m) But notice should certainly be given to the indorser.(n)

Where the drawer or indorser has himself absconded, notice should be given to some person who represents the estate, or who is a member of his family; or perhaps at his last usual place of residence.(o)

As the indorser may require that due demand should be made on the maker, although the indorser knew the maker's insolvency at the time of the indorsement,(p) the same rule would apply with still greater reason to the question of notice to an indorser. We should say, therefore, that the maker's insolvency would furnish no excuse for want of notice to an indorser; (q) but the

near, Gow, 81, where there was a delay of one day. Sturges v. Derrick, Wightw. 76, where there was a delay of four months.

(1) In Beveridge v. Burgis, 3 Camp. 262, Lord Ellenborough said: “Ignorance of the indorser's residence may excuse the want of due notice, but the party must show that he used reasonable diligence to find it out." Hunt v. Maybee, 3 Seld. 266.

(m) Supra, pp. 449, 450.

(n) See May v. Coffin, 4 Mass. 341, infra, note q.

(0) See Ex parte Rohde, Mont. & M. 430; Ex parte Johnston, 1 Mont. & A 622, 630.

(p) Supra, p. 446, note r.

(q) Nicholson v. Gouthit, 2 H. Bl. 609, infra, p. 529, note r. Thackray v. Blackett, 3 Camp. 164, where the defendant, a drawer, was aware of the insolvency of the acceptor before maturity, and knew the bill would not be paid. Whitfield v. Savage, 2 Bos. & P. 277, where the bill was drawn by the defendant for the accommodation of an indorser. Clegg v. Cotton, 3 id 239, where the defendant had drawn on his principal, and hearing of his being likely to fail, deposited effects of the principal in the hands of an indorser. Esdaile v. Sowerby, 11 East, 114, where the insolvency of the acceptor and the bankruptcy of the drawer were known to the defendant, an indorser, nearly a month before the bill matured. See Smith v. Becket, 13 East, 187, where the maker of a note had become bankrupt. So Ex parte Wilson, 11 Ves. 410. So Boultbee v. Stubbs, 18 id. 20. See Bowes v. Howe, 5 Taunt. 30, 16 East, 112; May v. Coffin, 4 Mass. 341, where the indorser was held entitled to notice of nonacceptance, although the drawer had become insolvent and had absconded; Par C. J., Bond v. Farnham, 5 Mass. 170; Crossen v. Hutchinson, 9 id. 205; Sandford v. Dillaway, 10 id. 52, where the indorser was aware, at the time of indorsing, of the maker's insolvency; Farnum v. Fowle, 12 id. 89, where the maker was notoriously insolvent six months before the note was made, and so continued until after maturity; Shaw v. Reed, 12 Pick. 132; Granite Bank v. Ayers, 16 id. 392; Shaw, C. J

sons,

authorities are not in unison on this point.(r) So also, where the

Lee Bank v. Spencer, 6 Met. 308; Mead v. Small, 2 Greenl. 207; Groton v. Dallheim, 6 id. 476; Hunt v. Wadleigh, 26 Maine, 271, where the insolvency of the acceptor was known to the indorser when he made his indorsement; Buck v. Cotton, 2 Conn. 126, where the defendant indorsed for accommodation of the maker, knowing his insolvency Holland v. Turner, 10 id. 308; Jackson v. Richards, 2 Caines, 343; Bruce v. Lytle, 13 Barb. 163, where the defendant, an indorser, was a clerk in the maker's store before the note was made and after its maturity; Benedict v Caffe, 5 Duer, 226; Barton v. Baker, 1 S. & R. 334, where the indorser was aware of the insolvency of the maker when the note was made; Nash v. Harrington, 2 Aikens, 9; Duncan, J., Gibbs v. Cannon, 9 S. & R. 198, 201, 16 id. 261; Orear v McDonald, 9 Gill, 350; Walton v. Watson, 13 Mart. La 347; Edwards v. Thayer, Bay, 217; Jervey v. Wilbur, 1 Bailey, 453, where the indorser knew of the insolvency of the maker before the note matured. So Allwood v. Haseldon, 2 id. 457; Course v. Shackleford, 2 Nott & McC. 283; Kiddell v. Ford, 2 Const. R. 678, 3 Brev. 178; Hightower v. Ivy, 2 Port. Ala. 308, where the indorser was aware of the maker's insolvency; Pons v. Kelly, 2 Hayw. 45; Denny v. Palmer, 5 Ired. 610.

(r) In De Berdt v. Atkinson, 2 H. Bl. 336, supra, the opinion of Lord C. J. Eyre proceeded upon the ground that the insolvency of the maker, known to the indorser when he indorsed the note for the maker's accommodation, was a good excuse for want of notice. The learned judge said: "But consider on what ground an early demand is in general required. It is because if any delay takes place, the effects may be gone out of the hands of the acceptor; and if the holder chooses to wait, he does it at his own risk. But apply this rule to the case of known insolvency, what does it signify to the person who is liable in the second stage at what time the demand is made on the drawer, who was known to be insolvent from the beginning? General rules are estab lished for general convenience, and I agree that, if the drawer is not known to be insolvent, the fact of insolvency will not excuse the want of an early demand; but the fact of knowledge excludes all the presumptions that would otherwise arise. Then as to notice, and the application for payment to the defendant, what did it signify to him when that application was made? It could make no difference to him whether it were made on one day or another; he meant to guarantee the payment of the note, and there was no possibility of any loss happening to him from the want of notice. In this instance, therefore, the general rule fails in its application." Buller, J remarked: "It is said that the insolvency of the drawer does not take away the necessity of notice; that is true where value has been given, but no further." Heath and Rooke, JJ. simply concurred. It is remarkable, that within two years after this decision the same court appear to have decided directly contrary in Nicholson v. Gouthit, 2 H. Bl. 609, Lord C. J. Eyre, delivering the opinion of the court, and Heath and Rooke, JJ. concurring. Buller, J. does not appear to have been present. No notice was taken of the former case by either counsel or court. In the first case the indorser indorsed without having received any consideration, and aware of the maker's insolvency. In the latter, the maker being insolvent, the indorser undertook to guarantee a debt due from the maker to a third party, by indorsing his note as a security for the debt. The first case, however, must be considered as overruled by the latter, and has been frequently doubted. In Allwood v. Haseldon, 2 Bailey, 457, Johnson, J. said, that "it is not law, either in this country or in England." So Swift, C. J., Hosmer and Gould, JJ., Buck v. Cotton, 2 Conn. 126; Nelson, J., Mechanics' Bank v. Griswold, 7 Wend. 165, 169. In Jackson v. Richards, 2 Caines, 343, Kent, C. J. said: "It has been laid down in the case of De Berdt v. Atkinson, 2 H. Bl 336, that the payee of a promissory note (supra, p. 528, VOL. I.-2 I

maker dies leaving his estate insolvent, not only must demand be made,(s) but notice must be given.(t)

As the loss of a bill can be no excuse for want of presentment and demand, so it can be none for want of notice.(u)

It is a sufficient excuse for not forwarding the notice on the regular day, that it was Sunday, or some other legal holiday,(v) and the same doctrine has been said to extend to Saturday, where the holder was a Jew.(w) We have stated on a previous page the various holidays sanctioned by usage, by statute, or by com

note q), indorsing it to give it currency, and knowing of the insolvency of the maker at the time of such indorsement, cannot insist on the want of demand and notice; because he was not an indorser in the common course of business, and cannot be affected by the want of notice. The same point was afterwards ruled by Buller, J., at Nisi Prius, in Corney v. Da Costa, 1 Esp. 302. But within two years subsequent to the first decision the same court decided directly the contrary in the case of Nicholson v. Gouthit, 2 H. Bl. 609. I think the reasoning in the last decision the best, and ought to be followed." The case of Corney v. Da Costa, 1 Esp. 302, is, however, distinguishable, as will be seen subsequently. It would appear from the case of Ex parte Solarte, 2 Deac. & C. 261, that the court considered the bankruptcy of the drawer before ma turity was a sufficient excuse for want of notice to him, the acceptor having also become bankrupt. But Erskine, C. J, in Ex parte Johnston, 1 Mont. & A. 622, 626, said that the reason for the decision in the former case was, that, under the circumstances, the assignees were precluded from setting up the want of notice as a defence, because they had not adverted to the objection in any of their affidavits, nor was it taken when before the commissioner, but urged for the first time in argument before the court. In Clark ». Minton, cited 2 Const. R. 680, 682, it was held that the recorded insolvency of the maker under the insolvent acts, before maturity, was a sufficient excuse for want of notice to the indorser. This case is reported 2 Brev. 185. See also Kiddell v. Peronneau, cited id. 188. In Bogy v. Keil, 1 Misso. 743, Wash, J. said: "Nothing but the maker's insolvency at the time of indorsing his note, or some such circumstances as show that the indorser did not rely upon the maker's liability or punctuality, or had no right to rely upon payment by the maker, will, in the opinion of this court, dispense with the necessity of giving the indorser notice." In M'Clellan v Clarke, 2 Brev. 106, where the indorser knew, when he indorsed, that the maker had absconded, and was insolvent, no notice was held necessary. In Stothart v. Parker, 1 Overt. 260, where the insolvency was known to the indorser when he indorsed, no notice was held necessary.

(s) Supra, p. 447, note u.

(t) Johnson v. Harth, 1 Bailey, 482; Gower v. Moore, 25 Maine, 16; Lawrence ». Langley, 14 N. H. 70, where one maker had become bankrupt before maturity, and the other had died insolvent. But in Davis v. Francisco, 11 Misso. 572, notice was held not necessary to an indorser of a note over due, he being aware that the maker had died insolvent. Scott, J. dissenting.

(u) Infra, Vol. II. p. 261.

(v) Supra, p. 515.

(w) In Lindo v. Unsworth, 2 Camp. 602, Lord Ellenborough said: "The law mer chant respects the religion of different people"

mon law,(x) and also that notices should be sont on the next succeeding business day, because the holidays are not counted at all.(y)

Where a note is indorsed at so short a period before it will be due, and the indorser knows that a demand on the maker is impossible by reason of the distance at which he lives from the place at which the indorsement was made, a reasonable delay in demanding the note would probably be excused as to that indorser.(z)

And where a joint note has been indorsed, and the makers live so far apart that a presentment and demand on both on the day of maturity is impossible, the same excuse would apply to the same extent. (a) In both of these cases, which might almost be considered as coming under the law of waiver, we should say that notice need not be given until after a regular and legal demand could be made. But we have no positive authority for this.

A delay of some days has been excused by the fact that the notice was taken from the post-office by a person of the same name with him for whom it was intended. (b)

Among the circumstances which have been considered as constituting a sufficient excuse for want of notice, or rather for a delay of notice, are,(c) the prevalence of a malignant disease, which rendered it dangerous to enter the infected district, (d) and

(z) There must, however, in this as in other cases, be due diligence. See Anderton v. Beck, 16 East, 248, and Boehm v. Sterling, 7 T. R. 423. In France, an indorser transferring a bill so late as to make regular notice impracticable, cannot take advantage of it, but prior indorsers and the drawer may. Pardessus, 451.

(a) Supra, p. 363.

(b) Jones v. Wardell, 6 Watts & S. 399.

(c) Hopkirk v. Page, 2 Brock. C. C. 20. See U. S. v. Barker, 4 Wash. C. C. 464, 12 Wheat. 559, 1 Paine, C. C. 156 See Patience v. Townley, 2 J. P. Smith, 223.

(d) Tunno v. Lague, 2 Johns. Cas. 1. Contra, Roosevelt v. Woodhull, Anthon, 35. In this case the notice for the plaintiff arrived in New York some time in September. The plaintiff had left the city on account of an epidemic which then prevailed, and on his return, in October, found the protested bill under the door of his office. He had (eft no one in charge of his business, nor had he placed there any notification of the place to which he had removed. He sent the notice to the defendant immediately after its discovery. Van Ness, J. nonsuited him. This matter is now regulated by statute in New York, by which parties leaving their place of business within the infected district are required to register their names and the places to which they may wish their notices to be sent; otherwise it will be sufficient for the party notifying to deposit the notice in the post-office.

a violent tempest, which has so obstructed the roads as to render travelling over them impossible. Among the circumstances offered as an excuse, but held to be insufficient, is the dangerous illness of an indorser's wife. (e)

It must always be remembered, that the excuse of impossibility, on whatever facts it may rest, continues only so long as the impossibility continues. That is, if a party bound to give notice gives none, because he cannot give it at the regular time, but can give notice at a subsequent period within which the notice may possibly be of use, he is bound to give it then. In other words, the excuse of an impossibility which is not permanent is only an excuse for a delay until the impossibility is removed. (ƒ)

SECTION III.

EXCUSES FOR NON-NOTICE, grounded on THE ABSENCE of right IN ANY PARTY TO REQUIRE NOTICE.

THE most usual and important excuse for want of notice, on this ground, arises in the case of bills being drawn without there being any funds belonging to the drawers in the hands of the parties upon whom the bills are drawn. We propose to consider, also, in this place, how far this fact operates as an excuse for the absence of proper presentment.

In the first and leading case on this subject, decided by the Court of King's Bench in the year 1786, it was held, that when

(e) Turner v. Leach, Chit. Bills, 452, an action by the eleventh indorser against the eighth. The notice was duly left, on Sept. 4th, at the house of the tenth indorser, who, in consequence of the dangerous illness of his wife at a distant place, had left his house, on Sept. 1st, in charge of a boy, who had no authority to open letters, and intending to return on Sept. 3d. Owing to the extreme illness of his wife, he did not return until Sept. 8th, when the notice was duly forwarded to the plaintiff, who took up the bill, and then sued the defendant, who insisted upon a discharge on the ground of laches in forwarding the notice. It was urged for the plaintiff, that the dangerous sickness of the prior indorser's wife excused his absence from home and the delay in giving notice of the dishonor; and that, as the dishonor is contrary to the contract and the expectation of the parties, there is no reason for requiring an indorser to be in the way, or to appoint an agent, in his absence, to provide for such an event. But Lord Ellenborough ruled that these circumstances constituted no excuse for the delay in giv ing notice. This case is reported, but not on this point, in 4 B. & Ald. 451. (f) Beale v. Parrish, 20 N. Y. 407.