it would not be just to cast upon him a new burden in consequence of this unexpected event. And in such cases it is not necessary that a demand should be made at the last place of residence.1

§ 670. It is clear from what has been said, as well as from the adjudged cases, that neither the bankruptcy, insolvency, nor death of the acceptor of a bill, or of the maker of a promissory note, is of itself sufficient to dispense with the necessity of a regular demand of payment. But the insolvency

1 Foster et al. v. Julien, 24 N. Y., 28, 36; Adams v. Leland, 30 id., 309; Eaton v. McMahon, 42 Wis., 487; Dennie v. Walker, 7 N. H., 199; Gist v. Lybrand, 3 Ohio, 307; but see Grafton Bk. v. Cox, 13 Gray, 503.

2 Armstrong v. Thurston, 11 Md., 148; May v. Coffin, 4 Mass., 341; Benedict v. Caffe, 5 Duer, 226; Hightower v. Ivy, 2 Port. (Ala.), 308; Galpin v. Hard, 3 McCord, 394. The necessity of demand is superseded in cases where the maker of a note or the acceptor of a bill has absconded or removed into a distant country; but in other cases, where the drawee of a bill or the maker of a note has removed from the place where the instrument represents him to reside, or where he did reside at the time it was drawn or made, the holder is bound to use every reasonable endeavor to find out whither he has removed, and if he succeed he must present it for payment, to charge the indorser. The circumstance of its being dated at a particular place does not make it payable at that place alone. Decided in 1825.

Barton v. Baker, 1 Serg. & R., 334. If the drawer of a promissory note be known by the indorser to have been insolvent when the note was made and when it became due, the indorser is nevertheless entitled to notice of non-payment by the drawer. But if the indorser has accepted from the drawer a general assignment of his estate and effects, notice is not necessary. Decided in 1815.

The Juniata Bank v. Hale, 16 Serg. & R., 157. The death of the drawer of a promissory note before it becomes due, and the taking out of letters of administration upon his estate by the indorsers and others, before the note comes to maturity, do not dispense with the necessity of notice to the indorsers, of non-payment by the drawer. Decided in 1827.

Clair v. Barr, 2 Marshall's R., 255. Action against the indorser of a promissory note; held, that the insolvency of the maker does not absolve the holder from his duty to use diligence in collecting the same of the maker, in the manner pointed out by the laws of Kentucky.

Price v. Young, 1 McCord, 339. Action against the indorser of a note, the maker of which had died before it became due, and the excuse alleged for not making demand was, that there was no legal representative on whom demand could be made. Per Curiam. "Where a demand cannot be made, the law does not dispense with notice. The circumstances which prevented it and the notice are still required. It was the duty of the holder in this case, admitting that a demand could not have been made, to have given the defendant notice in as short a period after having ascertained that the de

of the maker or acceptor is often an important circum- *487 stance, with other evidence, tending to show a waiver of

mand could not be made, as she could have been required to do, if a demand had been made. Suppose the demand had been made on the 26th of October, and no notice to the defendant had been given until the 10th or 15th of November, could this have been considered a reasonable time, when the parties were so contiguous to each other as to have enabled the plaintiff to have given the notice in five hours, or at most in one day? I presume not. The law is express that the notice shall be given as soon as shall be conveniently practicable." 1 Nott & McCord, 438.

Treadway v. Nicks & Johnson, 3 McCord, 195. Action against defendants as drawers. Held, that the complaint, which did not allege presentment, non-payment and notice to the defendants, was insufficient.

The Commercial Bank v. St. Croix Manufacturing Co., 23 Maine R., 280. This action was brought on three bills of exchange drawn by Smith, an agent of the defendants, on Copeland, their treasurer, and accepted by him, and also indorsed in the same manner by defendants; and it was held that the treasurer being the disbursing officer of the corporation, his knowledge that the drafts in question had been dishonored must be considered as notice to the defendants. Decided in 1843.

Moore v. Waitt, 13 New Hamp., 415. The drawer's liability is not changed by a notice, when the bill is drawn, that it will be discounted or left for collection at a certain bank in the vicinity, where the usage is not to make presentment when the bill becomes due, but to give notice to the acceptor and drawer. Decided in 1843.

Hunt v. Wadleigh, 26 Maine, 271. The insolvency of the acceptor of a bill or draft is no excuse for neglecting to present the same for payment. The transfer of a dishonored bill is equivalent to drawing a new draft on the acceptor payable on demand or at sight; and the holder must make demand within a reasonable time, and give notice of non-payment to the indorser as in other cases. A promise to pay with full knowledge of the holder's laches, made after the dishonor, will bind the promisor; but will not bind him if made in ignorance of the facts.

Whitney v. Abbott, 5 N. Hamp., 378. In this case, after it was ascertained by the parties that the makers of the note had failed, and before the note had become due, the defendant, who was sued as an indorser, told the plaintiff that the latter should have no trouble about it, that he, the defendant, would pay it, and that he was going to procure the money to pay it: and it was held that this was equivalent to an absolute promise to pay the note, and a waiver of demand and notice. Decided in 1831.

Gibbs v. Cannon, 9 Serg. & R., 198. On a guaranty of a promissory note, drawn and indorsed by others, if the drawer and indorser are insolvent when the note becomes due, this would prima facie be evidence that the guarantor was not prejudiced, and therefore the giving him notice of nonpayment is in such case dispensed with. Decided in 1822.

In Lawrence v. Ralston, Bibb, 102, it was held that the absence of the defendant from his residence was no excuse for not giving him notice at his residence of the non-payment of a bill drawn on New York. The defendant was sued as an indorser of a bill of exchange drawn by Aaron Burr, in December, 1806, and the defendant was absent for some time, hav

demand and notice;' just as the absence or death of the maker or acceptor may be shown, by way of dispensing with the necessity of a formal or personal demand. While in themselves neither of these facts or events works the slightest alteration in the terms of the contract by which the parties are respectively bound, each of them does or may vary the mode of fulfilling the conditions precedent to the liability of the drawer

and indorsers. If the maker of a note be dead, the 488* demand *should be made upon his legal representative;3 unless the note is payable at a particular place, and then it may be presented for payment at the place agreed upon between the parties.*

And where the note falls due after the death of the maker and before any legal representative has been appointed, the de

ing gone down the river, and the notice of dishonor was not served till his return to his home in Louisville.

In Camidge v. Allenby, 6 Barn. & Cres., 373. It appears that certain notes of the bank of Dobson & Co. were delivered in payment of the purchase-money of some goods, and that the bank failed on the same day in the afternoon, neither of the parties knowing of the insolvency of the bank at the time; the notes were not circulated or presented for payment, but returned to the purchaser a week after the sale: Held, under the circumstances, that the vendor of the goods was guilty of laches, and had thereby made the notes his own, and consequently that they operated as a satisfaction of the debt. Decided in 1827.

Esdaile v. Sowerby, 11 East, 114. Lord ELLENBOROUGH, C. J.: "It is too late now to contend that the insolvency of the drawer or acceptor dispenses with the necessity of a demand of payment, or of notice of the dishonor. And as to knowledge of the dishonor by the person to be charged on the bill being equivalent to due notice of it given to him by the holder, the case of Nicholson v. Gouthit, is so decisive an authority against that doctrine, that we cannot enter again into the discussion of it." Nicholson v. Gouthit, 2 H. Black., 609.

Philpot v. Bryant, 3 Carr. & P., 244. It appeared in this case that the drawce had died before the bill became due; and the objection was raised that the holder of this bill, which was payable after date, should have alleged presentment for acceptance; but it was held not necessary, and that a bill accepted payable at No. 18 Bishopsgate street, was properly presented at that place for payment, notwithstanding the death of the drawee. Decided in 1827.

1 Leonard v. Gary, 10 Wend., 504; Whitney v. Abbott, 5 N. Hamp., 378; Leffingwell & Pierpont v. White, 1 John. Cas., 99.

21 McCord, 339.

85 Hill R., 234; Shepherd v. Hawley, 1 Conn. R., 367; White v. Stoddard, 11 Gray, 528; Landry v. Sansbury, 10 La., 484.

4 Philpot v. Bryant, 3 Carr. & P., 244; Story on Notes, § 253.

mand may be made at the residence of the deceased, or if the house be closed, the note may be treated as dishonored, and notice given accordingly; so in the case of a bill of exchange. But the facts showing or dispensing with the *demand, must be proved by the holder or party *489 seeking to recover upon the instrument. Proof that the defendant indorsed the note after and with knowledge of the maker's death, dispenses with the necessity of a demand, especially where the law gives to the representative already appointed, a certain length of time for the settlement of the estate and for the payment of the debts of the deceased.'

§ 671. Where the house of the maker or acceptor is closed, it is the duty of the holder to make diligent inquiry for him; and in case he has removed to another residence in the same state, he is bound to follow him and present the bill or note for payment. The rule here is that the holder must exercise reasonable diligence in order to find the party. But if the note specifies the place of payment, or a bill be addressed to the acceptor at a certain number of a street *490 named, a presentment at the place indicated will be sufficient, if made in the usual hours of business, though the place be closed and no person found there to give an answer respecting the bill. In such a case the place as well as the time of payment, is fixed by the agreement between the parties; and it is

1 16 Serg. & R., 157; 5 Hill R., 232-236; 1 McCord, 339; McGruder v. Bk. of Georgetown, 3 Pet., 87. The circumstances which dispense with the necessity of a demand, do not relieve the holder from the duty of giving due notice to the indorser. Landry v. Stansbury, 10 Louis. Rep., 484.

Presentment to the personal representative of a deceased acceptor is sufficient; but it must be shown that the acceptor was dead, and that the party on whom the demand was made, was his representative. The notary's certificate is not evidence of these facts. Weams v. Farmers' Bank of Maryland, 15 Md., 431.

Davis v. Francisco, 11 Missouri, 572; Hale v. Burr, 12 Mass. R., 86. Mr. Justice STORY questions the decision in this latter case as not founded on principle. Story on Notes, § 253 and note; Oriental Bk. v. Blake, 22 Pick., 206.

3 Ellis v. Commercial Bank, 7 Howard (Miss.), 294. The holder should inquire for the acceptor in the neighborhood.

4

* Anderson v. Drake, 14 John. R, 114; 19 id., 331; Woodworth v. Bk. of America, 2 Watts & Serg., 401; Wheeler v. Field, 6 Metc., 290; Packard v. Lyon, 5 Duer, 82.

* Carroll v. Upton, 2 Sand., 171; 5 Duer, 82.

* De Wolf v. Murray, 2 Sand. R., 166; ante, 381, 399.

the duty of the debtor to be there within the proper hours of business, ready to pay, either himself personally or by his agent.

Where a person goes abroad, leaving an agent at home authorized to accept bills, and he accepts one for him, the bill when due should be presented to the agent for payment; or if the acceptor go abroad after having accepted the bill, the presentment should be made at his residence or place of business, or to his known and general agent.

3

§ 672. Presentment, how made in case of loss of bill or note. -The loss or destruction of the instrument, so that the holder is not in a position to deliver it upon payment, is no excuse for a failure to demand payment and give notice. In such case presentment may be made by a copy or a statement in writing describing the instrument,' but in such case presentment and demand must be accompanied by an undertaking to indemnify the party for all responsibility upon the instrument. Where a bill or note is drawn payable at sight its loss will excuse a reasonable delay in making presentment, and if a duplicate thereof be given, necessary delay in presenting it will be excused;' but where the party has been discharged by failure to present the original, the giving of a duplicate bill will not excuse the holder's former delay.*

§ 673. Not necessary to charge the drawer.--As against the drawer, where he has no ground to expect that his 491* bill will be paid, and no effects in the hands of the *drawce, a presentment of the bill for payment is not necessary to charge him. The defendant drew his bill on John Twist, payable six months after date; and the complaint against him alleged that he had not at the time of drawing, nor at any time afterwards before it became due, any effects in the hands of the drawee, nor any reasonable grounds to expect that he would have any, or that the bill would be paid, and further, that he had not sustained any injury or damage

1 Phillips v. Astling, 2 Taunt., 206.

2 Cromwell v. Hinson, 2 Esp. R., 511. 3 Story on Notes, 290.

4 Post, 508.

5 Post, 508; see Lost Bills and Notes.

Aborn v. Bosworth, 1 R. I., 403.

Benton v. Martin, 31 N. Y., 382; S. C., 40 N. Y., 345.

8 S. C., 52 N. Y., 570.