Dwight v. Scovil

Swot, Ch. J. In all cases of accepted bills and indorsed notes, it is necessary for the holder of the bill, and the indorsee of the note, to present the bill to the acceptor and the note to the maker, when they fall due, and demand payment. It is true, that there may be a waiver, by some subsequent act; as a promise to pay : but this is always deemed equivalent to presentment and demand. The reason of the rule is, that the engagement of indorser is conditional: he promises to pay, on conditio _ that the holder uses due diligence, and the acceptor or maker fails to pay. This is a condition precedent ; and the holds is bound to perform it. It has always been held, that insu' vency is no excuse ; for the acceptor or maker may ha* friends to aid him ; or he may have funds especially prow ded for that purpose ; so that it can never be known, hut that the note or bill would have been paid, if duly presented. Besides, non-payment is a matter susceptible of easy proof, [658] while insolvency is often a complicated question ; and it i; fop the interest of parties, where it can be done, that their rights should bo made dependent on matters which will nof be the subject of contest in point of fact. The circumstance, that one of the defendants was a member of both the companies, who made and indorsed the note, can make no difference ; for each company is to be considered as distinct persons, with different funds and liabilities | and there is the same reason for presentmeftt and demand, as if the companies were wholly different. If the companies should reside in different and distant places, the drawing of bills on each other mightbe convenient in the course of their business $ but on the principle contended for, the company drawing the bill might be subjected to pay it, because one of the partners belonged to both,companies, when the company on whom it was drawn was solvent, and would have paid the bill, if it had been presented. It is said, that notice to one partner, is notice to all 5 and that here, one of the defendants knew, that the note was not paid. It is true, that one of the defendants must, in legal consideration, have known, that the note was not paid 5 but he equally well knew, that the note, when it became due, had not been presented to the makers, and payment demanded ; he knew the fact that exonerated the defendants from all liability on their indorsement to pay the note j and it would be j trasige logic to say, that this knowledge rendered the defendants liable. The other Judges were of the same opinion. New trial not to be granted.