
    Lemon Galpin vs. Benjamin F. Hard.
    The necessity of a personal demand upon the draper, to render tiíé . indorser liable, issupercededin a variety ofinstances, which would impose on the holder an unreasonable degree of labour and inconvenience.
    So it seems, that ii the holder cannot discover which place the drawer has removed it is sufficient to excuse him from givingno'tice to the drawer'; ot where the drawer has absconded, or removed into a distant country.
    And where the drawer of a bill of exchange or maker of a promissory note has removed from the place where the bill or note represents him to reside,, oi where he did reside at the time the bill was drawn or note made, the holder is bound to use every reasonable endeavor to find out whither he has i emoved and, it he succeed, he must present it for payment, to charge the indorser.
    The case of Wilmore vs. Young, said not to be law.
    A demand upon the drawer, and notice of non-payment must be given to tlfe indorser upon a note payable to bearer in the same manner as in case of notes payable to order.
    A note being dated at, a particular place does not render it payable at that place alone; and if enquiry be made for the drawer atsuch place, and he cannot be found, the holder is not thereby excused from enquiring elsewhere»-
    Tried before the recorder of the city of Charleston who made the following report!
    
      This was an action on C. Fishburn’s note, dated Charleston, April 1821, indorsed by the defendant. The noto was payable to B. F. Hard or bearer. Knox the notary who protested it, proved that when it became due, he tried to find the drawer in Charleston, but could not; that he called on the defendant and told him he could not find the' drawer; witness asked him, if he knew where he was, and defendant said no. Witness then demanded payment of him, and he replied that witness must first look to the drawer. The defendant then said that Fishburn (the drawer) was in the country; and witness gave him a notice for Fishburn, to be sent by defendant to him. This was on the last day of grace. Defendant said, some one was going into the country or Fishburn’s servant would be in town; witness said, you can then send the notice to him, and, he said, yes!
    Elliott swore he knew Fishburn intimately; that he was in Charleston in 1819 and 1820; and witness supposed-he was there in the winter of 1821, as it was his habit to spend all his winters in town. ■ According to the witness’s best recollection, he was the.n in town; he was a student of law in Charleston at the time. He believed; at that time, he was not engaged in planting; he was now dead; he called himself an inhabitant of St. Bartholomew’s Parish; witness tho’t he resided in the city in April 1821; witness lived by himself theu, and Fishburn often visited him.
    Wilson was next examined. He testified that Fishburn in 1820, resided at the Round O. His summer residence . was at Island creek; that he resided in Charleston in the summer of 1821. It was after the month of May that witness saw him in Charleston. He also saw him there before April 1821, and during that winter, but did not know if he was a visitor or resident at that time. He resided in Charleston in the summer, but in the previous winter thought he was but a visitor. The drawers and second endorsers’ signatures were, then
    
      Mr. Cruger for defendant
    then moved for a nonsuit, which being refused, the grounds of the motion were used in the defence before the jury. He insisted that no demand was proved to have been made on the drawer; and secondly, that the cause of action did not arise within the city, the drawer being found to be a resident of the country.
    Mr. Clarke for the plaintiff
    combatted these grounds and insisted that it was proved the contract was made where it was dated; viz: in the city and that the drawer resided there, at the time, though he afterwards could not be found there, when the note became due. Thatno demand on the maker of a note, or acceptor of a bill is necessary, when he cannot be found, as was the case in this instance. He cited 1 Cons. Rep. 367. 4 Mass. R. 44.. Mass. 44. 2 Caines 121.20 Johnson 168. Buller,JV.P. 273 He further contended that as this note was payable to bearer and not to order, the in-dorsement was like a new note by defendant which rendered any demand on any other than himself nugatory.
    The Recorder told the jury that he thought the case was entirely for them and not for him to decide. But upon the last point taken by the plaintiff’s attorney, his opinion was that the defendant was not to be regarded as an ordinary indorser of a. note in which a demand on the maker would have to be proved; but rather as a new drawer of the note, his name being written on the back of a note, hot payable to order, but to hearer and if he were a drawer, then no demand on any but himself was necessary. That as his hand writing' was proved, he thought the plaintiff entitled to a verdict..
    The jury found for the plaintiff and the defendant appealed on the grounds: ■
    1st.. That no demand was proved on the drawer, or at his residence. ■ ;
    2nd: That the court charged, that no demand on the drawer is necessary where the note is payable to bearer, fo? the purpose of subjecting the indorser to liability.
   Johnson J,

The'first ground of this motion embraces a propositionAvhioh^as a general rule, cannot be controverted, that? the -indeXerm! a promissory note must demand payment of the drawer, before he can charge the iijdorser. This rule, it is true admits of numerous qualifications, or rather supersedes the necessity of a personal demand in a variety of instances which would impose on the holder an unreasonable degree of labour and inconvenience; and it has been contended in opposition to this motion, that where the drawer has left the place at which he resided at the time the note was drawn, the case falls within this class of exceptions and that the holder is not bound to enquire further after him. And in support of this position, the cases of Stewart vs. executors Eden, 2 Caines 121, and Ogden et al. vs. Cowley, 2 Johnson 275, have been relied on-. In' the first of these cases, the drawer had a house on Long Island; and a store in New York, at the latter of which the presentment was made and payment was demanded of his clerks, who answered that he had gone into the country and had left no instructions. In the latter case, the- notary called at the house of the drawer, in the city of New York, which he found shut up, and was informed, that he. also had gone into the country. It is impossible to reconcile these cases to the general doctrine on the subject without supposing that they proceeded on the ground that the drawers had not changed-their residence, or that the holders were unable to discover to what places they had removed; either of which would have dispensed with a personal.demand; and with this qualification they do not sustain the position contended for. In point of fact, however, it does not appear to me, that they are analogous to the case under consideration. Judging from the evidence, the strong probability is that Mr. Fishburn had no permanent residence in town. His residence here was the temporary residence of a student at law, and that only for the winter. He had no house, and his lodgings were probably changed as often as caprice or convenience required, and it does not appear that enquiry was made either at his boarding house, or at the office where he studied. His permanent residence, if indeed he had any, was in St. Bartholomew’s Parisli, - and all these circumstances are presumed to have been known to the plaintiff. If they were not, an enquiry of any one who knew any thing about him would have led to it; so that according to the view taken of the cases relied on, it does not fall within . . them. But I take it that it is a well settled rule that when the drawer of a bill of exchange, or the maker of a promissory note, has removed from the place where the bill or note represents him to reside, and for the same reason where he did re* side at the time the bill was drawn or the note made, the holder is bound to use every reasonable endeavour to find out whither he has removed, and if he succeed, present it for payment. (Chitty on Bills’ 334-5. Riley’s Ed. 1821, and the cases there cited.)' And if we examine into the nature of the contract between the indorsee and indorser, we must admire its reasonableness and good sense, however arbitrary the rule itself may be in terms. The indorsement is literally and substantially an order on the maker of a note to pay the amount to the indorsee. Its object, therefore, cannot be attained without its presentment, and hence the obligation which it. imposes on the indorsee, and if he intends to discharge it, the enquiry would suggest itself, where does he reside, or. where is he to be found? He knows too that our places o.f residence are changed as often as interestor fancyprompts, and he takes it, subject to that inconvenience; as a part of the contract,, therefore, the rule imposes no hardship, especially when qali-fied by the exceptions which dispense with a demand, where the maker has absconded or removed into a distant country.

On the second ground also, the defendant is clearly entitled to a new trial. It is not necessary, I am aware to endorse a note payable to bearer in order to transfer it; that may be done by delivery. For the plaintiff, it is contended, that such an, indorsement is in effect a b'illof exchange drawn by the in-dorser on himself, and that, therefore, it is not incumbent on the indorsee to look elsewhere for the payment; end Eller’s N. P. 273, 7th Ed. by Bridgman, is relied on as an authority in point. The case of Wilmorc vs. Young, said to have te.-n decided by Eyre, at Guildhall M. 1. Geo. II. is referred to in support of the text, where it is said that to charge the indor-ser of a note payable to bearer, it is not necessary, to make a demand on the drawer, because “ the indorser is in nature of an original drawer.” tíowever we may venerate the opinion -of that learned judge, as a nisi prius cs.se,\t cannot be regarded as conclusive authority; and if we adopt the reason on which it is founded, it proves too much, and is destructive of the whole fabric which has been founded on the theory of indorsements. Every indorsement is equivalent in its effects to drawing a new bill, and the indorser in almost every respect is considered as anew drawer: (Chitty on Bills 183,) and if that reasoning prevail, there would be no necessity in any case to make a demand on the drawer of a bill, or the makerofanote. Whatever similitude the indorsment of a note payable to bearer may have to a bill of exchange, and however nearly the in-dorser may be assimulated to an original drawer, it is evident from the nature of things that something more was intended and must be implied than belong to these relations, if he intended only to charge himself, why let it be asked, did he not do so by making his promisory note, or drawing a bill -on himself in the usual way? Why pul beyond the reach of his control a fund which might possibly enable him to meet •it, -by endorsing and delivering the note? A conclusion so much at war with common sense will never be imputed to such astute and intelligent men as compose the mercantile community. The indorsement ofsuch a paper must, therefore, mean something more than a mere charge upon the indorser, and I am suable to see any reason why it should be distinguished from the ordinary case-of indorsing a note payable to order. So far as it goes to charge the indorser the effect is the same, and although it may not be indespensably necessary to enable the indorsee to make a demand on the drawer, yet it is calculated to remove any suspicions that might arise as to the manner in which he obtained the possession. There cannot, therefore, exist any good reason why it should not impose the same obligation on the indorsee to make the demand on the drawer of the note; and with the exception of the case noticed, the books contain no such distinction. On this ground, therefore, the motion is granted.

An argument in opposition to the motion has been drawn from the circumstance that the note was dated at Charleston, and hence it is concluded that it is made payable there, and as such the plaintiff was not bound to present it for payment elsewhere, but this question is concluded by the case of Miller & Co. vs. Thompson, decided during this term. The place at which it is to be paid is not necessarily indies • ted by the place at which it is dated.

Petigru h Cruger, for the motion.

Clarke, contra. 
      
      
         Not reported, as it contains no other principle than as stated above.
     