
    Nathaniel Freeman and Another versus John Boynton
    Where a promissory note was payable on the 4th, a demand made on the 10th of the month, was held to be within a reasonable time to charge the endorser, the holder of the note living two hundred miles from the promisor’s place of abode.
    But a demand on the promisor, and notice to the endorser, on the 3d of the succeeding month, were held not to be within reasonable time.
    It is a general rule, that such demand must be accompanied with the note, to be delivered upon payment.
    This was an action of assumpsit, brought by the plaintiffs as endorsees of a promissory note, dated at Boston, September 4th, 1806, by which one Joseph Boynton promised the defendant to pay him or his order 902 dollars 16 cents in nine months from the date, with interest after six months, and which the defendant endorsed to the plaintiffs.
    
      On non-assumpsit pleaded, the cause was tried before Thatcher, J., at the last September term in this county. At the trial, neither the making nor the endorsement of the note were denied ; the whole question being whether the plaintiffs had used due diligence in demanding payment of the promisor, and in giving notice to the endorser, so as to make him liable.
    * On this point the evidence was, that on the 9th or [ * 434 ] 10th of June, 1807, a copy of the note, with a protest made by a notary public at Boston, was transmitted to Mr. Merrill, an attorney of this Court, living at Wiscasset, who immediately called on the promisor, and demanded payment, which was refused ; but he gave no notice at that time to the defendant, the endorser. On the 3d of July following, Mr. Merrill, having then with him the original note, again called on the promisor, and demanded payment, which was refused; and on the same day, he went to the house of the defendant, the endorser, (both promisor and endorser being inhabitants of Wiscasset,) and informed the defendant’s wife of the non-payment of the note by the promisor ; and he also left a letter at the house, directed to the defendant, and giving him the same information ; the defendant then being, and having been for several months, at sea.
    It was further proved that the defendant, on the 19th of September following, being in Boston, called at the counting-room of the plaintiffs, paid them a sum of money due them on account from the said Joseph, observed that he had been called on to pay the note in question, and complained of the hardship of the case, that it was hard enough to pay his own debts, but said that he would pay it as soon as he possibly could, or words to that effect. There was no change in the pecuniary circumstances of the promisor for some months before or after the said tenth of June, 1806 ; nor any evidence that either the maker of the note or the defendant had any place of residence in Boston.
    
    A verdict was taken, by consent, for the plaintiffs, subject to the opinion of the Court upon the above facts reported by the judge who sat at the trial. If, upon these facts, the Court should be of opinion that the plaintiffs are entitled by law to maintain their action, they were to have judgment on the verdict; otherwise the verdict was to be set aside, and they were to become nonsuit.
    
      Mellen, for the defendant,
    contended that the protest made at Boston was entirely nugatory, and coúld have [ * 485 ] *no effect. The promisor and endorser both living in Wiscasset, the plaintiffs should have sent the original note thither by mail, for the purpose of demanding payment of the promisor and giving the necessary notice to the endorser. A demand of payment on a copy of a negotiable security was no legal or sufficient de mand. And even this was too late. The note was due on the 4th of June, and no demand or notice of any kind was made or given until the 10th.  Then, if the notice and demand made on the 3d of July, was in point of form sufficient, it was so out of all time that the plaintiffs can hardly rely with seriousness upon it. If a month’s delay may be excused, and a party still be held liable, no limits can be set within which notice must be given, ■ and all the principles as to this point have no weight.
    Further; the person making the demand ought to be legally authorized to receive the money due, which is not found to have been the case here. As to the after-promise made to the plaintiffs in Boston, it was made under a total ignorance, on the part of the defendant, both as to law and fact, and ought not, on any principle, to be held binding upon him, and especially as his original engagement was but a conditional one.
    
      Wilde, for the plaintiffs,
    insisted that, as the defendant was at sea when the note arrived at maturity, and continued so until after the notice was given, and as the promisor continued in good circumstances until long after, the notice was to every beneficial intent seasonable and sufficient. And if it was not, he afterwards waived all exceptions to it, by his new engagement at Boston. When he made that engagement, he well knew all the tacts; and his ignorance of law will not excuse him from fulfilling an express promise, fair and honorable in itself. It is a pretence that any one may make, and which, in common cases, is not easy to be disproved.
    
      
       4 Mass. Rep. 245, Jones vs. Fales.— Ibid. 341, May vs. Coffin. — Chitty on Bills 96, 97, 99, 102. — 1 D. & E. 712, Goodall vs. Dolley. — 5 Burr. 2670, Blesard vs. Hirst & Ab.
      
    
   The opinion of the Court was delivered to the following effect, by

* Parker, J.

The question submitted to the Court [ * 486 J in this case is, whether the plaintiffs have made use of due diligence, in demanding payment of the promisor, and in giving notice to the endorser, so as to make him liable. (Here the judge recited the facts from the report of the trial, and proceeded.)

The demand made by Mr. Merrill, on the ninth or tenth of June, was seasonable; for, as the holders of the note lived in Boston, and the promisor and endorser at Wiscasset, a distance of near two hundred miles, a reasonable time should be allowed, after the note became due, to transmit it, the endorsees having a right to wait for payment to them in Boston, before they were obliged to follow the maker to his home, to make the demand.

But this demand was ineffectual for two reasons—1. Because Merrill had not the note with him, to deliver it up on receiving payment; and, 2. Because no notice was given to the endorser of the refusal to pay.

Whenever a demand of payment is made, the person making the demand should have with him the evidence of the debt; for otherwise the debtor may well refuse to pay, on the ground that he has a right to have his obligation or contract, or to see it cancelled, when he is called upon to discharge it. And this rule will especially apply to negotiable securities, which may be legally transferred to another, at the very time the original payee makes his demand of payment.

This rule may admit of exceptions; as, where the security may be lost; in which case a tender of sufficient indemnity would make the demand valid, without producing the security ; and where, from the usual course of business, of which the parties are conusant, the security may be lodged in some bank, whose officers shall demand payment and give notice to the endorser, according to the custom of such banks; the security not being presented at the time of the demand, but the parties being presumed to know where it may be found.

* There is nothing in this case, whereby an ex- [ * 487 ] ception to the general rule can be created. But had this demand been sufficient, still it would not affect the endorser, he having had no notice whatever that it had been made.

The objection to the demand, on the ground that Mr. Merrill had not a letter of attorney from the endorsees, would not have prevailed; a letter, or even a verbal request, from the holders of the note being sufficient to authorize him to make the demand, if he had held the note, and been able to deliver it up on receipt of its contents.

Then the question is, whether the demand made by Merrill, with the original note in his hand, on the 3d of July, 1807, which wanted but one day of being a month after the note became due, and of which, and of the refusal to pay, immediate notice was given to the endorser, in the best manner circumstances would admit of, he being absent at sea, was within a reasonable time, so as to charge the endorser. And we are all of opinion that it was not; there being no sufficient excuse given for so long a delay, a regular mail being- established between Wiscasset and Boston, by which letters may be safely transmitted in a time not exceeding three days.

Even if the mistake of the plaintiffs, in not sending down the note when they directed the first demand, or of Merrill in neglecting at that time to notify the endorser, should have authorized a subsequent demand, in order to charge the endorser, yet no reason whatever can be furnished for suffering twenty-five days to elapse between the two demands. It is important to the interest of the community, that the law, which requires diligence in the holder of securities, to enable him to exact payment, from one who is only conditionally liable, should be strictly enforced.

But the plaintiffs have further relied upon a supposed demand made by a notary at a house in Boston, where the promisor had once boarded. This was altogether nugatory, it appearing from the report that both promisor and endorser lived at Wiscasset; and it not appearing that the promisor had any place of business [ * 488 ] in Boston, or that the note * was payable there. And even if any weight could possibly be attached to this kind of demand, it could not avail against the endorser, for he had no notice of it.

Nor will any supposed acknowledgment of the endorser, that he was liable to pay the note, avail the plaintiffs in the present case. The facts reported do not show any direct promise to pay; and even if they did, it is well settled that a promise under such circumstances, as show an ignorance that the party was legally discharged, is without consideration and void,

We are all, therefore, of opinion, that the verdict must be set aside, and the plaintiffs become nonsuit. 
      
      
         5 Burr. 2760. — 1 D. & E. 712.— Chitty, 102, ante, 452, Warder & Al. vs. Tucker
      
     
      
       [See note to Warder vs. Tucker, ante, 452, and case there cited, to show that 4 mistake of the law is of no consequence in such a case. — Ed.]
     