Nailor v. Bowie

Tuck, J., delivered the opinion of this court. The appellant sued the appellee as payee and endorser of two notes of John Waring, payable, respectively, at eighteen and twenty-four months from date. Having proved the making and endorsement of the notes, and that the appellee resided and had his place of business in Baltimore when they became due, he offered in evidence the protests set out in the record, for the purpose of proving demand and notice. The defend ²⁵⁶ ant objected to this evidence' as inadmissible for the purpose for which it was offered, which objection was sustained.- In this we think that the court erred, because, as part of the evidence tended to prove the issue, and was admissible, the whole should not have been excluded from the jury.

Budd vs. Brooke, 3 Gill, 220 . 1 Md. Rep., 474 . The protest of the first note states, that on the due-day the notary demanded payment at the Bank of Metropolis, “the drawer having removed from Washington, and having been previously informed at his late place of business that he had not left any funds or made any provision for his notes.The liability of an endorser is conditional; the holder takes the note, with the understanding that demand and notice are precedent to his right to recover, and the endorser is entitled to strict notice. Bell vs. Hagerstown Bank, 7 Gill, 225 .- The demand at the bank is conceded to have been insufficient. But it is said, that the averment in the protest shows that the-maker'had left Washington, and that a demand was made at his late place of business.

Upon the subject of demand where the maker has removed, we take the-law to be correctly stated by Chancellor Kent, in 3 Vol. of his Com., Lecture 44, page 96: “The general principle is, that due diligence must be used to find out the party and make the demand, and the inquiry will always be,- whether, under the circumstances of the case, due diligence has- been used ?” “ If the party has absconded, that will, as a general rule, excuse the demand. If he has changed his residence to some other place, within the same State or jurisdiction, the holder must make endeavors to find it, and make the demand there; though, if he has removed out of the State subsequent to the making of the note or accepting the bill, it is sufficient to present the same at his former place of residence” (or of business.) “If there be no other evidence of the maker’s residence than the date of the paper, the holder must make inquiry at the place of date, and the presumption is, that the maker resides where the note is dated, and that he contemplated payment at that place. But it is presumption only; and if the maker resides elsewhere within the State ²⁵⁷ when the note falls due, and that be known to the holder, demand must be made at the maker’s place of residence,” or of business. Although the drawer may have removed from Washington, it does not necessarily follow that he could not have been found, on inquiry, at some other place within the same jurisdiction.

Nor are wé to infer that a demand was' made, from what the notary says was the information he received at the drawer’s late place of business. Whether he presented the note there, or- had it with him, does not appear. “The mode of demand is well settled. A demand without the presentation of the note, would in genera] be equivalent to no demand;, and wdien it is made, the holder should be prepared and ready to produce it.” 7 G. & J., 89 , Farmers Bank vs. Duvall. But the law is equally stringent