George B. Magruder, in Error v. The Union Bank of Georgetown, in Error

Mr Chief Justice Marshall delivered the opinion of the Court. This action was brought by the Union bank of Georgetown against George B. Magruder, as indorser of a promissory note made by George Magruder. The maker of the note died before it became payable'; and letters of administration on his estate were taken out by the indorser. When the note became payable, suit was commenced against the indorser, *90 without any demand of payment other than the suit itself, without any protest for non-payment, and without any notice that the note was not paid, and that the holder looked to him as indorser for payment. Upon these circumstances the counsel for the defendant moved the court to instruct the jury, that before the plaintiff can recover in this action, it is essential for him, to prove demand, and notice to the indorser of the non-payment.; which not being done, the verdict should be for the defendant. But the court refused to give this instruction, and charged the jury, that no demand or notice of non-payment was necessary. To this opinion the counsel for the defendant in the circuit court excepted, and*has brought the cause to this court by writ of error. The general rule that payment must be demanded from the maker of a note, and notice of its non-payment forwarded to the indorser within due time, in order to render him liable, is so firmly settled that no authority need be cited in support of it. The defendant in error does not controvert this rule, but insists that this case does not come within it; because demand of payment and notice of non-payment are totally useless, since the inddrser has become the personal representative of the maker. He has not however cited any case in support of this opinion, nor has he shown that the principle has been ever laid down in any treatise ort promissory notes and bills. The court ought to be well satisfied of the correctness of the principle, before it sanctions so essential a departure from established commercial usage. This suit is ,not brought against George B. Magruder as administrator of George Magruder, the maker of the note, but against him as indorser. These two characters are as entirely distinct as if the persons had been different. A recovery against George B. Magruder, as indorser, will not affect the assets in his hands as administrator. It is not a judgment against the maker, but against the indorser of the note. The fact that the indorser is the representative of the maker does not oppose any obstacle to proceeding in the regular course. The regular demand of payment may be made, and the note protested for non-payment, of which notice may be given to him as indorser with as much facility as if the indorser had *91 not been the administrator. It is not alléged that any difficulty existed in proceeding regularly; — the allegation is, that it was totally useless. The note became payable on the 8th day of November 1824. The writ was taken out against the indorser on the 26th day of April 1825. If this unusual-mode of proceeding can be sustained, it must be on the principle that, as the indorser must have known that he had not paid the note, as the representative of the maker, notice to!him, was useless.. Could this be admitted : doe's it dispense with the, necessity of demanding payment? It is possible-that assets which might have been applied in satisfaction of this debt, had payment been demanded, may have received a different direction. It is possible that the note may have been paid by thé maker before it fell due. Be this as it may, no principle is better settled in commercial transactions, than that the undertaking of the indorser is conditional. , If due diligence be used to obtain payment from the- maker, without success, and notice of non-payment be given to him in time,, his undertaking becomes absolute; not otherwise. . Due diligence to obtain payment from th,e maker, is a condition precedent, on which the liability of the indorser depends! As no attempt to obtain payment from the maker was. made -in this case, and no notice of non-payment was given to the indorser, we think the circuit court ought to have given the instruction prayed for by the defendant in that court. The judgment is reversed, and the cause remanded, with directions to award a venire facias de novo. This cause came on to be heard on the transcript of the record from thp circuit court of the United States for the district of Columbia, holden in and for the county of Washington, and was argued by counsel; on consideration whereof, it is ordered and adjudged by this court, that the judgment of the said circuit court in this cause, be, and the same is hereby reversed, and that the said cause be and the samp is' hereby remanded to the. said circuit court, with- difectlbJiá to award a venire facias de novn in., said cause,