itself, and all right of action upon it, is not a consideration, would be absurd. The only question that the subject admits of, is whether the agreement of parties was such, that by the acceptance of the note, the debt was satisfied, discharged, released, or whether the right of action upon it remained unextinguished. See the distinctions on this subject in the American note to Cumber v. Wayne, 1 Smith's Leading Cases, 5th Am. ed., 446. In Fenby v. Pritchard, 2 Sandford, 152, it was held that if the giving of notes as collateral security *was one of the condi*336] tions of a sale, the vendor was a holder for value, discharged from equities.

But unless a note is taken in good faith, for a valuable consideration, and without notice, the holder is considered as being in privity with his endorser.

There are several circumstances which create this privity. One is where the endorsement is colorable ;(1) another is where it is without consideration.(2) A third is where the endorsee takes the instrument with actual notice; (3) and this distinction has been taken, that where the action is brought by an endorsee, or other third person, who is not named in the note, it will be presumed till the contrary is shown, that he took it in the regular course of negotiating commercial paper, and as a general rule, the maker cannot set up any equities existing between himself and the payee, until he has given evidence to impeach the plaintiff's title; but when the action is brought by the payee named in the note, although it may appear that in point of fact, he was not a party to the transaction upon which the note was made, there is no such presumption in his favor; in other words, being payee is a presumption of notice.(4) Another case in which the endorsee is affected by the equities which existed against his endorser, is where the instrument is taken under suspicious circumstances, such as ought to have put him on his guard, and would have alarmed a man of ordinary prudence; (5) or where there is enough on the face of the instrument to create a suspicion that it is issued against law.(6) The rule is the same where a bill, upon its face, has been dishonered by nonacceptance or non-payment;(7) or where a note or bill is negotiated

(1) Ayer v. Hutchins et al., 4 Massachusetts, 370, 373; Henderson & Dial v. Irdy, 1 Spears, 43, 47.

(2) Lawrence v. Stonington Bank, 6 Connecticut, 521; Munson v. Cheesborough, 6 Blackford, 17.

(3) See Small v. Smith, 1 Denio, 583.

(4) Nelson v. Cowing, 6 Hill's N. Y. 337.

(5) Beltzhoover v. Blackstock, 3 Watts, 20, 25; Cone v. Baldwin, 12 Pickering, 545; Hall v. Hale, 8 Connecticut, 337; Hunt v. Sandford, 6 Yerger, 387.

(6) Safford v. Wyckoff, 4 Hill's N. Y. 442; Smith v. Strong, 2 Id. 241; Thompson v. Hale, 6 Pickering, 259.

(7) Andrews v. Pond et al., 13 Peters, 66, 79; Fowler v. Brantly et al., 14 Id. 318, 321.

over-due, for in that case, it is considered as discredited upon its face. If it be payable at a time certain, it is of course over-due after the last day of grace is expired, and the endorsee after that time takes it subject to equities.(1) A note which is payable on demand, or without fixed time, is considered as payable within a reasonable time, and if endorsed after a reasonable time, passes subject to equities, and reasonable time is a question of law. (2) No fixed measure of reasonable time has yet been determined; two days, and even one month, have been held to be within the limit;(3) and eight months, and even two months, beyond *it.(4) In Wethey v. Andrews, 3 Hill's N. Y. 582, a distinction [*337 was declared to exist, as to the length of time that will be reasonable, between a note payable on demand with interest, and one payable without interest, being longer in the former case, as it is to be understood that when a note is payable with interest, it would be contrary to the usual course of business to demand payment short of some proper point for computing interest, such as a quarter, or half a year, or a year; and it was decided that four or five weeks was not too long upon a note carrying interest, though it would have been if the note had been without interest.(5) In a suit by the endorsee against the maker, when part of the defence is, that the note was endorsed over-due, the burden of proving the time of the endorsement is on the defendant; an endorsement, in the absence of any evidence to the contrary, being always presumed to have been made at or about the date of the note;(6) but this presumption of fairness is a slight one, and easily countervailed by suspicious circumstances.(7) The principle, that a note payable on demand may become discredited by mere lapse of time, is not recognized in England.(8) And in this country the principle is not considered applicable to bank notes or bank post notes;(9) nor appar

(1) Mackay v. Holland, 4 Metcalf, 69; Howard v. Ames, 3 Id. 308; Potter v. Tyler and another, 2 Id. 58; De Mott v. Starkey, 3 Barbour's Chancery, 403; McNeill v. McDonald, 1 Hill's So. Car. 1.

(2) Sylvester v. Crapo, 15 Pickering, 92; Knowles v. Parker, 7 Metcalf, 31; Tucker . Smith, 4 Greenleaf, 415.

(3) Dennett v. Wyman et al., 13 Vermont, 485; Dennen v. Haskell, 45 Maine, 430; Ranger v. Cary and others, 1 Metcalf, 369, 374.

(4) American Bank v. Jenness and others, 2 Metcalf, 288; Nevins v. Townsend, 6 Connecticut, 5; Camp v. Clark, Trustee, 14 Vermont, 387.

(5) See Thompson v. Hale, 6 Pickering, 259.

(6) Burnham v. Wood, 8 New Hampshire, 334, 336; Burnham v. Webster, 19 Maine, 232; Ranger v. Carey and others, 1 Metcalf, 369, 373; Cain v. Spann, 1 McMullan, 258; White v. Camp, 1 Florida, 94, 101; Hutchins v. Flintge et al., 2 Texas, 473.

94.

(7) Snyder v. Riley, 6 Barr, 165, 168.

(8) Brooks v. Mitchell, 9 Meeson & Welsby, 15; Sylvester v. Crapo, 15 Pickering, 92,

(9) The Fulton Bank v. The Phoenix Bank, 1 Hall, 562, 577; see Key v. Knott and Wife, 9 Gill & Johnson, 342, 364.

ently to checks marked "good."(1) An endorsement without recourse, or an assignment of the note on the back of it, without recourse, is not enough to make a holder for value, subject to the equities previously existing.(2)

In the case of an ordinary assignment of a chose in action, where the suit must be brought in the name of the assignor, the assignee is usually, under statutes of set-off, subject to all set-offs existing between the parties, till the time of the assignment and notice; but in the case of an endorsement of a note, under circumstances to leave the endorsee in privity with his endorser, it is now settled in England, and in most courts in this country, that the endorsee is affected only by those defences that are connected with the note itself, and not by antagonist claims, or set-offs, that are wholly independent of the note.(3) [And the endorsee of a note will consequently be entitled to recover against the maker even where he has full notice or knowledge that the endorsement is made for the purpose of defeating a set-off held by the latter against the endorser.(4)] In Massachusetts, however, general *338] set-offs are admissible ;(5) up to the time of the transfer of the title, but not till notice of it to the maker.(6) The decisions in Massachusetts have been followed in Maine.(7) In New York the point was considered doubtful in Minon v. Hoyt, 4 Hill's N. Y. 193, 197. In South Carolina, all set-offs between the original parties to the note existing at the time of the transfer, appear to be admitted in case of a note endorsed over-due.(8) In Alabama, under a statute rendering notes assignable, it has been decided that set-offs between the maker and intermediate endorsees are not admissible.(9) In Maine, it has been decided that if a note is negotiated before it is due to one who thereby acquires a perfect title, his endorsing it after it is due will not revive

(1) Willits v. The Phoenix Bank, 2 Duer, 121.

(2) Epler v. Funk, 8 Barr, 468; Bisbing v. Graham, 2 Harris, 14.

(3) Burrough v. Moss, 10 Barnewall & Cresswell, 558; Whitehead v. Walker, 10 Meeson & Welsby, 696; Hughes v. Large, 2 Barr, 103; Cumberland Bank v. Hann, 3 Harrison, 223; Gullett v. Hoy, 15 Missouri, 399; Hankins v. Shoup, 2 Carter, 342; Chandler v. Drew, 6 New Hampshire, 469; Robinson v. Lyman, 10 Connecticut, 31; Stedman v. Jillson, Id. 56; Britton v. Bishop et al., 11 Vermont, 70; Robertson v. Breedlove, 7 Porter, 541; Tuscumbia, &c., R. R. Co. et al. v. Rhodes, 8 Alabama, 206, 224; Tinsley v. Beall, 2 Kelly, 134; Renwick v. Williams, 2 Maryland, 356. (4) Oulds v. Harrison, 10 Exchequer, 572.

(5) Sargent et al. v. Southgate, 5 Pickering, 312.

(6) Ranger v. Cary and others, 1 Metcalf, 369, 376; Baxter v. Little & Harris, 6 Id. 7, 11.

(7) Burnham v. Tucker, 18 Maine, 179; Wood v. Warren, 19 Id. 23; Bartlett v. Pearson, 29 Id. 9, 15.

(8) Nixon v. English, 3 McCord, 549; Perry v. Mays, 2 Bailey, 354; Cain v. Spann, 1 McMullan, 258.

(9) Stocking v. Toulmin, 3 Stewart & Porter, 35; Kennedy v. Manship and others, 1 Alabama, 43; Pitts v. Shortridge's Adm'r, 7 Id. 494.

against the endorsee equities which could not have been enforced against the endorser.(1) It is hardly necessary to add that primá facie the cashier of a bank or the treasurer of a corporation possesses the power to endorse its negotiable securities.(2)]

*OF THE PRESENTMENT OF A BILL OR NOTE AT THE TIME OF PAYMENT, IN ORDER TO CHARGE THE ENDORSER.

[*839

GEORGE MCGRUDER, PLAINTIFF IN ERROR V. THE PRESIDENT, DIRECTORS, AND COMPANY OF THE BANK OF WASHINGTON,

DEFENDANTS IN ERROR.

In the Supreme Court of the United States.

MARCH TERM, 1834.

[REPORTED FROM 9 WHEATON, 598-602.]

Where the maker of a note has removed into another State, or another jurisdiction, subsequent to the making of the note, a personal demand upon him is not necessary to charge the endorser.

Such a removal is an excuse from actual demand.

THIS case came up on a writ of error upon a case stated from the Circuit Court of the District of Columbia, in which a suit had been instituted against the plaintiff here (George McGruder), as endorser of a promissory note drawn by one Patrick McGruder. Judgment was given below for the plaintiffs in the action.

At the time of drawing the note, and until within ten days of its falling due, the maker was a housekeeper in the District of Columbia. But he then removed to the State of Maryland, to a place within about nine miles of the District. The case admitted that neither the holder of the note, nor the notary knew of his removal or place of residence; but the circumstances of his removal had nothing in them to sanction its being construed into an act of absconding. The words of the admission to this point are, that he "went to the house where the said Patrick had

(1) Smith v. Hiscock, 14 Maine, 449.

(2) Maxwell v. Planter's Bank, 10 Humphreys, 507.

last resided, and from which he had removed as aforesaid, in order there to present the said note, and demanded payment of the same; and not finding him there, and being ignorant of his place of residence, returned the said note under protest." There was, confessedly, no actual demand on the maker: and the question therefore here raised was whether the holder had done all that he was bound to do, to excuse it.

The opinion of the court was delivered by Mr. Justice JOHNSON. On this subject the law is clear: a demand on the maker is, in general, indispensable; and that demand must be made at his place of abode or *place of business. That it should be *340] strictly personal, in the language of the submission, is not required; it is enough if it is at his place of abode, or, generally, at the place where he ought to be found. But his actual removal is here a fact in the case, and in this, as well as every other case, it is incumbent upon the endorsee to show due diligence. Now, that the notary should not have found the maker at his late resi dence, was the necessary consequence of his removal, and is entirely consistent with the supposition of his not having made any one of those inquiries which would have led to a development of the cause why he did not find him there. Non constat, but he may have removed to the next door, and the first question would, most probably, have extracted information that would have put him on further inquiry. Had the house been shut up, he might with equal correctness, have returned, "that he had not found him," and yet that clearly would not have excused the demand, unless followed by reasonable inquiries.

The party must, then, be considered as lying under the same obligations as if, having made inquiry, he had ascertained that the maker had removed to a distance of nine miles, and into another jurisdiction. This is the utmost his inquiries could have extracted, and marks, of course the outlines of his legal duties.

Mere distance is, in itself, no excuse from demand; but, in general, the endorser takes upon himself the inconvenience resulting from that cause. Nor is the benefit of the post office allowed him, as in the case of notice to the endorser.

But the question on the recent removal into another jurisdiction, is a new one, and one of some nicety. In a case of original residence in a State different from that of the endorser, at the time of taking the paper, there can be no question; but how far,