Anderson v. Drake

Thompson, Ch. J,, delivered the opinion of the court. This case comes before the court on a demurrer to the second plea. The defendant being sued as an endorser of a promissory note, pleads specially, that the maker of the note had, shortly after the making thereof, and before it became payable, removed from the city of Mew■ York to Kingston, in Ulster county, there permanently to reside, which was well known to the plaintiff; and that no demand had been made upon the maker. The demur [116] rer admits the truth of these allegations. And the question presented is, whether a demand upon the maker at Kingston was necessary, in order to charge the endorser. It does not appear from the declaration, that the note was made payable at any particular place; nor is there any allegation, from which we are to infer that the note, upon the face of it, appears to have been made in New-York. . The case, however, was argued, by the defendant’s counsel, upon the admission of that fact; and our opinion is founded on the supposition that the note appears, on the face of it, to have been drawn in New-York, that being, at the time, the place of residence of the drawer, though before the note fell due he removed to Kingston, in Ulster county, there permanently to reside. Whether, under such a state of facts, a demand on the maker at Kingston was necessary, or whether it was sufficient if made in New-York, where the note was drawn, is the point to be decided. Had the note expressly, been made payable in New-York, a demand there would have been sufficient, notwithstanding. the removal of the drawer. Livingston, J., in delivering the opinion of the court in Stewart v. Eden, (2 Caines’ Rep. 127.,) says, the note being dated in New York, the maker and endorser are presumed to have contemplated payment there. This, however, was not the point directly'before the court; and it is evident, from a subsequent part of the opinion, that he did not intend to be understood that New-York would have been the place to demand payment of the maker, or to give notice to the endorser, in case of a permanent removal from the city. In Thompson v. Ketchum, (4 Johns. Rep. 285.,) the note was dated at MontegoíRay, yet, it was not deemed payable there ; otherwise parol evidence would have been inadmissible to prove it was payable at New-York. Such evidence would have been repugnant to the written note, if the inference of law was that it was payable at Montego Ray. This point was, in some measure, before the supreme court of Pennsylvania, in Fisher v. Evans. (5 Binney’s Rep. 542.) It was there contended, in argument, that the place where the bill was drawn and dated, must be taken to be the residence of the drawer, and that the holder was not bound to look for him elsewhere. But the Chief Justice said he knew of no such principle, and that the proper place to give notice to the person entitled to receive it, was at his permanent residence. [117] Bailey, in his treatise on bills, (58,,) states the rule to be, that if the drawer or maker cannot be found at the place where the bill or note is payable, and it appears that he never lived there, or has absconded, the bill or note is to be considered as dishonoured ; but if he has only removed, the holder must endeavour to find out to what place he has removed, and make the presentment there. This is, in some measure, supported by the case of Collins v. Butler. (Stra. 1087.) This rule, 1 apprehend, cannot be correct to the extent there laid down. The settled law now is, that a demand of payment at the place where the note is made payable is enough to charge the endorser. This is so decided in the case of Saunderson v. Judge, (2 H. Black. 509.,) and by this court in the case of Stewart v. Eden; but, according to Mr. Bailey, the holder must follow the maker to the place of his removal. The general rule is, that the holder of a note is bound to make use of all reasonable and proper diligence to find the maker, and demand payment, where no particular place is appointed for such payment. And in determining what shall be considered reasonable diligence, due regard must be had to the security of endorsers, as well as to the unembarrassed circulation of negotiable paper. The laying down precise rules, however, on this subject is attended with some difficulty. In á case decided in this court, (but which is not reported,) the drawer of the note had removed to Canada; the note was drawn and dated at Albany, though not made payable at any particular place, and it was held that a demand in Albany was sufficient to charge the endorser. I can find no distinction in the books as to the place being within the jurisdiction of the court, which varies the rule on this subject j nor do I see any substantial reason for any such distinction. It is necessary, however, that some rule should be settled, and 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 endorser. Whoever takes such not," 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 place before the note falls due. As the demurrer, therefore, in this case admits [118] the permanent residence of the maker to have been at Kingston wjjen tbg 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 endorser is discharged. The defendant must, accordingly, have judgment upon the demurrer. Judgment for the defendant.-