
    Warren Wheeler & another vs. David D. Field.
    Where the maker of a promissory note abandons his business and residence, and re* moves into another State, before the maturity of the note, the holder, if it be not proved that he received the note after the maker’s removal, is not bound, in order to charge the indorser, to demand payment of the maker in the State to which he has removed 3 but he is bound to demand payment at the maker’s last residence or place of business within the State where he made the note, if he can find it cy the use of due diligence.
    When there is no dispute as to the facts, the court is to determine what is due diligence in seeking for the last place of business or residence of the maker of a note.
    On the last day of grace, on a note that was dated at New York, where the maker re - sided when the note was made, a notary public took the note to the office of F., the third indorser, to inquire for the maker and other indorsers, and was told that F. was out, but that one H., whose office was near that of F., might give him information ; whereupon the notary went to H.’s office 5 but the person who had the charge thereof knew nothing of the maker or first two indorsers: The notary then protested the note, without making any further inquiry for the maker. Held, in a suit by the holder against the third indorser, that due diligence had not been used to find the maker’s last place of business or residence in New York, and that the indorser was 'discharged. v - *
    Assumpsit by the in dors ©8. against the indorser ot a promissory note for $1000, dated Ne#-.York, October 16th 1840, signed by John M. Rynex, payable tc John Rynex, or order, in nine months, and indorsed by the payee, tíien by Samuel Rynex, then by M. D. Field, and then by the defendant. The money counts were added. Trial in the court of commen pleas. The judge, who sat at the trial, made a report th. eof, which, so far as it related to the points hereinafter decided, was as .follows :
    The plaintiffs introduced evidence tending to prove that the maker of the note, when it was made, resided in the city of New York, and boarded at a hotel; that between that time and the spring of 1841, he abandoned his residence in New York, and removed to the State of Illinois, where he had ever since resided; that he had done no business in New York since his removal, and was not in the State of New York when the note reached its maturity ; that on the day the note was payable, it was put into the hands of a notary public, by the agent of the plaintiffs, who were then the holders thereof.
    The notary’s deposition, stating his diligence in seeking information concerning the maker of the note, was as follows: “ Í 
      did not make demand of payment on the maker, because I could not find him. I did use due diligence to make such demand. I took the note to the office of David D. Field,” [the defendant] “No. 20 Wall Street, New York, (said Field being the only indorser on said note residing in the city of New York,) to make inquiry for the maker and indorsers, and was told by a person in charge of the office, that Mr. Field was out, but that Mr. D. C. Hall, No. 2 Wall Street, might know. I went to Mr. Hall’s office, but the person in charge knew nothing about said maker and indorsers. There being no other indorser, except Mr. Field, residing in the city of New York, to whom I could apply for information, I protested the note. I did not know the maker, and knew not where he lived at the time the note was made, nor when it fell due, nor do I know where he now lives. I made no other inquiries than I have before mentioned.”
    Cyrus W. Field, one of the firm of E. Root & Co., deposed that said firm had been holders of the note in suit, and that his partner, Root, transferred it to the plaintiffs, and that the deponent told one of the plaintiffs, before the note was due, that the maker, as the deponent had been informed, had gone to Illinois; and that he also “ told him where he could find out about the maker and indorsers.” The said Root deposed that the note was transferred by him to the plaintiffs, with his partner’s (C.. W. Field’s) consent; that he could “ not state particularly when said note was transferred, but should say it was in April or May, 1841.”
    The defendant contended, 1st, that the plaintiffs were bound to present the note for payment at the residence of the maker, in II inois; 2d, that if not bound to do that, they were bound to present it at the last place of residence or of business of the maker, in the city of New York; 3d, that there was no legal evidence, proper to be submitted to a jury, of the plaintiffs’ having used due diligence to find the last place of the maker’s residence or business, in New York.
    The plaintiffs denied that the maker of the note ever had any place of business in New York ; and much evidence was introduced, by botn parties, on that point. The court proposed to instruct the jury, “ that if the maker had left the State of New York, for several months before the note fell due, and had entirely abandoned his residence and his business there, and was not in the State when the note became mature, no demand at any place was necessary in order to charge the indorser The court, however, proposed to the parties that three other questions should be submitted to the jury, for them to pass upon: 1. Had John M. Rynex ever any place of business in New York? 2. If he had, did the notary aforesaid use due diligence to find where that place of business was? 3. Did the said notary use due diligence to find the last place of residence of said John M. Rynex in New York? This was assented to by the counsel for the respective parties, and, after argument upon all these questions, the case was submitted to the jury, with the instructions, before stated, and with directions to examine the testimony in reference to the questions so submitted to them, and be prepared to answer them when they should return their verdict.”
    The verdict was for the plaintiffs; and when it was returned, “ the court asked the jury if they had passed upon the questions submitted to them, and they replied that they had found that the maker of the note never had any place of business in New York, and that the notary had used due diligence in endeavoring to find his last place of residence there. The verdict was then recorded.”
    The defendant alleged exceptions to said rulings and instruc tions.
    
      Jones, for the defendant.
    The ruling of the court below, that no demand on the maker was necessary, cannot be supported. The plaintiffs knew that the maker had removed to Illinois; and if they had not known, it was their business to inquire, and to give proper directions to their agent. Bayley on Bills, (2d Amer. ed.) 198. Anderson v. Drake, 14 Johns. 117. Granite Bank v. Ayers, 16 Pick. 394. Colt v. Barnard, 18 Pick. 260. The notary’s ignorance of the maker’s residence cannot avail the plaintiffs. Preston v. Daysson, 7 Louisiana R„ 7. As the maker removed to Illinois before the plaintiffs obtained the note, demand should have been made on him there. M’Gruder v. Bank of Washington, 9 Wheat. 598. The in-dorsement of a note is like the drawing of a bill. The indorser is a drawer, and the maker is the acceptor. “ The indorsee is bound to apply to the maker of the note ; he takes it upon that condition; and therefore must, in all cases, know who he is, and where he lives.” Per Lord Mansfield. 2 Bur. 676, Hey-lyn v. Adamson.
    
    But if demand in Illinois was not necessary, yet presentment and demand should have been made at the promisor’s last place of residence in New York. Hepburn v. Toledano, 10 Martin, 643. Central Bank v. Allen, 4 Shepley, 41. Lehman v. Jones, 1 Watts & Serg. 126. Bayley on Bills, (2d Amer. ed.) 199, 200. Glen on Bills, 161. 1 Bell’s Com. (4th ed.) 324. 1 Pardessus, 421 — 424. Poth. du Contrat de Change, $ 146. Bravard-Veyriere, 92. Code de Commerce, <§> 173. Nouguier des Lettres de Change, $ 247. This rule, of course, does not obtain, when the holder cannot ascertain the maker’s last place of residence or business; yet due diligence to ascertain it is required. Chit, on Bills, (6th ed.) 165, 213. Duncan v. M’ Cul-lough, 4 S. & R. 480. Otis v. Hussey, 3 N. Hamp. 346. And when the facts respecting diligence are agreed, or where they are all before the court, as they are in this case, in the notary’s deposition, it is a question of law, whether such diligence has been used; and the finding of the jury on that matter avails nothing. Bank of Columbia v. Bank of U. States, 1 Pet. 578. Remer v. Downer, 23 Wend. 620. 1 U. S. Digest, Bill of Exchange, 132. Tindal v. Brown, 1 T. R. 167. The facts sworn to by the notary show that due diligence was not used. Beveridge v. Bwrgis, 3 Campb. 262. 4 S. & R. and 3 N. Hamp. ubi sup. Stuckert v. Anderson, 3 Whart. 116. Granite Bank v. Ayers, 16 Pick. 394.
    
      Byington, for the plaintiffs.
    The ruling of the judge was right. Cummings v. Fisher, Anthon, 5. Putnam v. Sullivan, 4 Mass. 53. Hale v. Burr, 12 Mass. 88. Dennis v. Walker, 7 N. Hamp. 200. Howe v. Bowes, 16 East, 112. Story on Bills, <§><§. 327, 352 The case of M’Gruder v. Bank of Wash
      
      ington, 9 Wheat. 598, only decides that where the maker removes into another State, demand at his former domicil is saffi-cient to charge the indorser; not that a demand is necessary, m such case.
    The plaintiffs were not bound to go to Illinois to demand payment, even if they knew, when they took the note, that the maker was there. The case of Colt v. Barnard, 18 Pick. 260, does not show that they were so bound. The note, in that case, was overdue when it was indorsed, and the maker had then absconded.
    It is a mixed question of law and fact, whether due diligence has been used to find the maker’s residence, and when the jury have passed upon the question, the court will not interpose, except on a motion for a new trial on the ground that the verdict is against the evidence. No such motion has been made in this case. Stuckert v. Anderson, 3 Whart. 116. Browing v. Kin-near, Gow’s R. 81. Bateman v. Joseph, 12 East, 433. Tindal v. Brown, 1 T. R. 167.
   Wilde, J.

At the trial of this cause, several exceptions were taken to the rulings of the court, and to the instructions given to the jury; and the first question to be considered is that which is raised by the exception taken to the instruction, that if the maker of the note had left the State of New York, several months before the note fell due, and had entirely abandoned his business and his residence there, and was not in the State when the note came to maturity, no demand, at any place, was necessary.

The defendant’s counsel contends that this part of the instructions is erroneous, on two grounds: In the first place, it has been argued, that a demand should have been made on the maker of the note, in Illinois, because he had his residence there, as it is alleged, at the time when the note was indorsed to the plaintiffs. But as the time of the indorsement, and the time of the removal of the maker of the note to Illinois, are not ascertained by the evidence, this ground of exception fails.

The second ground of exception is, that a demand should have been made at the maker’s last place of residence in the city of New York, unless it could be clearly proved that the plaintiffs had made reasonable inquiries, unsuccessfully, to ascertain the same. And on this ground, we are of opinion that the exception is well sustained. The general rule is, that, to charge the indorser of a promissory note, a personal demand on the maker is to be made; or if he be not found where he ought to be found, and no place of payment is specified, a demand at his place of abode, or place of business, is sufficient. But if, after making the note, he removes to another place within the State, the demand should be made at his new domicil. And if he removes into a foreign country or another State, a demand at his new place of residence is not required; as was decided in M’Gruder v. Bank of Washington, 9 Wheat. 598.

Whether there may not be exceptions to the rule there laid down, is a question which it is not necessary to decide in the present case. But it would seem reasonable, that when the maker of a note, before it falls due, removes into another State, and acquires a new domicil in a town or place adjoining his former place of residence, or near thereto, the demand should be made at his new domicil. Bayley on Bills, (2d Amer. ed.) 198, 200. Story on Bills, §§ 351, 352. Anderson v. Drake, 14 Johns. 117. Louisiana State Ins. Co. v. Shamburgh, 14 Martin, 511. However this may be, such a demand was not necessary in the present case ; but it should have been made at the maker’s last place of residence in New York; and the plaintiffs were bound to make diligent inquiries to ascertain it. This we consider indispensable ; and as the jury were not so instructed, but, on the contrary, were instructed that no demand, under the circumstances stated, was necessary, the defendant is entitled to a new trial, notwithstanding -the finding of the jury that the notary had used due diligence in this respect. What amounts to due diligence, there being no dispute about facts, is a question of law for the court to decide; and we are of opinion that the facts proved do not amount to due diligence on the part of the plaintiffs. It was their duty to inform the notary of whom to make inquiry, and where the persons to be inquired of might be found, And it cannot be doubted, that if inquiries had been made of the payee or the other indorsers, the maker’s last place of residence in New York might have been ascertained.

For these reasons, without considering the other questions discussed by counsel, we are of opinion that the defendant is entitled to a new trial, as, on the evidence reported, we think this action cannot be maintained.

New trial ordered.  