
    The Trustees of the Belmont Bank of St. Clairsville vs. Andrew Patterson.
    A Notary Public, having* a bill of exchange for the purpose of demanding payment of an acceptor, who had, a short time before, been a boarder at a public hotel at Cincinnati, is under no obligation, when informed at the hotel that the acceptor has gone down the river to be absent some days, to present the bill or make demand of payment of any one there, in order to fix the liability of an indorser.
    
    This is a Writ of Error to the Court of Common Pleas of Belmont County.
    The original action was assumpsit, on the following bill of exchange:
    Exchange for $ 1570.
    Wheeling, December 3d, 1833.
    “ Ninety days after date of this only bill of exchange pay to Wm. Dulty, Esq. or order, fifteen, hundred and seventy dollars, ' value received, which place to account of, as advised,
    Wilson and Hadden.
    “ To Messrs; McCandless, Semple & Co., Cincinnati.”
    [Accepted McCandless, Semple & Co.]
    Indorsed “Wm. Dulty,
    Andrew Patterson.”
    This bill was discounted by the Belmont Bank of St. Clairsville, and was protested for non payment, on the 6th March 1834, and notice of protest sent to defendant Patterson.
    On the trial the plaintiffs were non-suited, —. on the ground, that no sufficient demand had been made of the acceptors, to charge the indorser.
    
      The testimony, so far as the same was offered, is this :
    1. The deposition of the notary who made the demand and the protest. •
    2. The deposition of the Clerk of the plaintiffs, who forwarded the notice to the defendant. ,
    3. The deposition of R. Buchanan of whom the demand was made.
    Wheeler, the notary, testified that he demanded payment at the Franklin Bank of Cincinnati, which was refused.
    He then went with the bill of exchange to the City Hotel, the boarding house of Alexander McCandless, one of the firm of McCandless, Semple & Co. — the only one residing in the city, — and wap informed that he had gone down the river, and would be absent some days. He then went to the count-ting house of C. McAlister & Co., and there demanded payment of the bill of ,R. Buchanan, who refused payment ,and finding no one-who would pay the bill he then protested it for non-payment.
    Buchanan testified that the firm of McCandless, Semple & Co. was composed of J. K. McNichols, who then resided in Pittsburgh, Semple, who resided in Covington, Kentucky, and McCandless; that they failed in the winter of 1834, and assigned their effects to him and Thomas D. Carneal for the benefit of their creditors, and that McCandless, after the maturity of the bill, removed to the State of Mississippi.,
    
      Wilson Shannon, for Plaintiff in Error.
    The question presented in this case is, whether there was sufficient evidence to go to the jury, that the holders of this bill had used due diligence to obtain payment of McCandless, Semple & Co. at the maturity of the bill. If the evidence (which is made part of the bill of exceptions) proves that due diligence was used by the holders of this bill to obtain payment from the acceptors at its maturity, then the Court was wrong in directing a non-suit.
    
    
      At the date of the bill McCandless, Semple & Co. had a business house in the city of Cincinnati, and the bill in question was drawn on that house; but before the bill ‘matured, that is, before the 6th of March, 1834, they broke up, and became insolvent and had assigned all their effects to R. Buchanan and Carneal in trust for the benefit of their creditors. At the maturity of the bill the firm had no office or place of doing business in the city of Cincinnati, and McCandless was the only member of the firm who had his abode in the city at the time the bill matured. John McNichols constiuted the firm of McCandless, Semple & Co. At the maturity of this bill, Mc-Candless had his abode at the City Hotel in the city of Cincinnati. The bill was placed in the hands .of Wheeler, a Notary Public of the city, on the 6th day of March, 1834, the day it fell due.
    The bill was drawn on, and accepted by a firm in the city of Cincinnati, and so described on the bill. The' holders had a right to look to that place for payment. The Notary swears he protested the bill for want of payment, first making diligent search and inquiry for the acceptors, neither of whom could be found. He first demands payment at the Bank, where the bill had been left for collection, and payment was refused. He then went with said bill to the City Hotel, where McCandless, one of the firm of McCandless, Semple & Co., then boarded; and he was informed, and he had every reason to believe him to be the only member of the firm whose residence Was at that time in the city of Cincinnati, and was there also'informed that he was absent from the city. The Notarial protest proves, substantially, the same thing; that is, that the Notary went with the original bill to the City Hotel, the boarding house of Mc-Candless, one of the firm of McCandless, Semple & Co., (the only one residing in the city,) and was there informed that he had gone down the river, and would be absent several days. He then went to R. Buchanan, in the city, the trustee [of Mc-Candless, Semple & Co., and who had all the effects of the firm in his possession, for the use of the creditors, and demanded payment, which was refused. He then protested the bill for non-payment.
    On these facts, have we shown due diligence, so as to the indorser ? The drawers of this bill resided in the state of Virginia, and the drawees in the state of Ohio; consequently, this is a foreign bill of exchange. “ A bill of exchange drawn by a person in one state of the union, upon a person residing in another state, is a foreign bill.” Rice v. Hagan, 8 Dana. 133 ; Holliday v, McDougal, 20 Wendal, 81, S. C., 22 Wend. 264; Brown v. Furguson, 4 Leigh, 37.; Carter v. Benly, 9 N. Hamp. 558; 2 Peters, 589, 591; 15 Wend. 527. In such a case, a protest, apparently under the seal of a Notary Public, made in the state where the acceptors reside, proves itself as to presentment for payment, and refusal. And so, also, it seems as to notice to the parties, if such fact be stated in the protest. Holliday v. McDougal, 20 Wend. 81, S. C., 22 Wend. 264; Townsley v. Sumral, 2 Peters, 1,79; Lansdale v. Brown, 2 Peters, 179; Chanaine v. Fowler, 3 Wend. 173 ; Nickolls v. Webb, 8 Wheaton, 333 ; 10 Peters, 581.
    The notarial protest which was given in evidence, in this case, we claim proved a demand of payment, and refusal, so as to charge the indorsers. No other evidence, as to this point, need have been produced by the plaintiffs. But it is claimed by the counsel on the other side, that the notarial protest shows the manner in which the demand was made, or the facts which constitute an excuse for not making a demand of the acceptors, and that neither the demand or the facts excusing a demand are sufficient, as shown by the protest.
    I propose, then, to examine the question upon the authorities, whether there has been a sufficient demand, or whether there has been a sufficient excuse for not making a demand; or, in other words, do the facts show that the holders of this bill used due diligence in making, or seeking to make, a demand of payment?
    Chancellor Kent says, in 3 Comm., pages-95-6, that “If a bill has been accepted, demand of payment must be made when the bill falls due; and it must be made by the holder, or his agent, uPon the acceptor, at the place appointed for payment, at his house, or residence, or upon him personally, if no particular place be appointed, and it cannot be made by letter, through the Post Office. But, (he says) there is- a great deal of perplexity and confusion in the cases on this subject, arising from refined distinctions and discordant opinions, and it becomes very difficult to know precisely the law of the land, as to the sufficiency of the demand upon the maker of the note or the acceptor of the bill. If there be no particular and certain place identified and appointed, other than a city at large, and the party has no residence there, the bill may be protested in the city on the day, without inquiry, for that would be an idle attempt. The general principle is, that due diligence must be used to find out the party, and make the demand. And the inquiry will always be, whether, under the circumstances of the case, due diligence has been used.” This I take to be the true rule which must govern every case, and the only general rule laid down in the books.
    If the acceptor has absconded, or cannot be found, or has no present, known and fixed domicil, the want of due presentment will be excused; Story on bills, § 365, 308, and note. If, at the time of presentment for payment, the holder finds that the dwelling house or place of business of the acceptor is shut up, it is said he is entitled to treat the billas dishonored, by a refusal of payment; at least this is true, (for there seems to be some discrepancy in the authorities,) if the holder makes diligent inquiries for the acceptor, and he cannot be found. Story on bills, § 352; Chitty on bills, Ch. 9, page 386-7, 400, 418; Bayly on bills, Ch. 7, page 215, (5th edition.) We have shown that we made diligent inquiry for the acceptors, and went to the boarding house of the only one that resided in the city, and that they could not be found, and that they had no house or place of business in the city. We bring ourselves, therefore, within the most rigid clause of the above rule, which appears to be recognized in all the books. The want of a demand, will be excused when the acceptor has absconded, or cannot be found. Putnam, et al. v. Sullivan, 4 Mass. Rep.45; ery v. Munroe, 6 Mass. Rep. 449; Stewart v. Eden, 2 Rep. 121.
    In the above case of Putnam, et. al. v. Sullivan, 4 Mass. Rep. 52-3, Parsons, C. J., in delivering the opinion of the Court, says that “ the first objection made by defendants, is founded on a want of demand of payment, on the promissor, where the note was payable. As to this objection, the facts are, that on the first day of grace, which was on the last day of February, notice was left at the lodgings of the- promissor, that the note would be due on the last day of grace, with a request to pay it then. But it also appears, that before the time it was known to the parties that he had absconded, and when the note was payable, he was not to be found. The condition on which an indorser of a note is holden, is that the indorsee shall present the note to the promissor, when due, and demand payment of it, when it can be done by using due diligence. Now it appears that when the note in this case was due, it could not be presented to the promissor for payment, and that there was no 'neglect in the indorsees; we are therefore satisfied that the indorsers are holdén on their indorsement in this case, notwithstanding there was no demand on the promissor.” Now here is a case where no demand ivas attempted to be made on the promissor, on the last day of grace, the day the note fell due, although he had lodgings, it would seem, on the first day of grace, at which notice was left of the time the note would fall due — which was the only diligence used by the holder. The holder was excused from making a demdnd, because the promissor could not be found when the note fell due, and consequently, no demand could be made upon him. This is a stronger case than the one at bar; for the absence of the promissor, so that a demand could not be made, excused the holder from makingTany attempt to demand payment. In the case at bar, the Notary made diligent inquiry for-all the acceptors, and went to the boarding house of McCandless, and learned, upon inquiry, that he had gone down the river, and would be absent for several days. He could not, therefore, make a demand of McCandless.
    The principle that runs through all the cases is this, that when the holders can demand payment by the use of due diligence, they must do so, in order to charge indorsors; but when the acceptors have absented themselves, so that no demand can be made, the holders are excused from making a demand. If they have left a business house, or office, or other place of doing business, a demand may be made there. If they have left a dwelling house, demand may be made there. But such was not the fact with the acceptors in this case. McCandless was a mere lodger at a public house in the city, had no dwelling house, or place of business in the city, at which a formal demand could have been made. And whether he left the city secretly, or publicly, makes no difference; the impossibility of making a demand, is as great in the one case as in the other.
    •The counsel on the other side claim that a demand ought to have been made at the lodging of McCandless, at the City Hotel. That if the demand had been so made his wife or some one might have paid the bill. There is no evidence that Mc-Candless had a wife or family, and the Court will not presume he had, from the fact of his being a boarder at the City Hotel. The Court might presume he had a family or some one to answer demands upon him, if he had been in possession of a dwelling house, but such was not the fact. When he absented himself from the city he left no place where a formal demand could have been made with the least prospect of receiving payment, and the Court will not require the holder of a bill to do an unavailing act. In the case of Widgery v. Munroe, 6 Mass. Rep. 449, the Court determine that as the maker was out of the country when the note fell due, the plaintiff was excused from demanding payment of him.
    If a notary go to the maker’s house to demand payment, and find it shut up, and that he is out of town, this is a sufficient demand. Chitty on Bills, 354; Ogden et al. v. Cowley, 
      2 J. R. 274-5, and analagous to this is the decision in the case of Williams v. Bank of the United States, 2 Peters, ] 00, which I will ask the Court to read, as it furnishes a clear tion of the principle that must determine this case. See also Gilpin v. Hard, 3 McCord, 394. Want of demand is excused where the party on whom it should be made cannot be found; Stewart v. Eden, 2 Caines, 121. In the above’case of Ogden v. Cowley, 2 J. R. 274, the facts are these: The notary went to the house of the maker for the purpose of demanding payment, but found it shut up and no person there, and was informed, on inquiry, that the maker was not in town. Kent, C. J., delivered the opinion of the Court and said on this point: “We are of the opinion that the demand and notice were suffi cient. This case comes within the reason of the decision in Stewart v. Eden, 2 Caines, 127. All proper steps were taken to make a demand on the maker of the note and to communicate the requisite notice to the indorser.” The holders of a bill of exchange sent a person on the day of its maturity, to present it at the place to which it was addressed. The party so employed was informed by a woman whom he saw coming out of the house, (and who, as appeared from the evidence subsequently given, was a lodger there,) that the acceptor had formerly lived there, but had recently quitted. It was held that this was evidence to go to the jury of a presentment to the acceptor so as to charge the indorser. Buckstone v. Jones, 1 Scott, N. R. 19; 1 Man. & Granger, 83-5, S. C.
    It is sufficient to show that the bill was taken to the residence of the acceptors, as stated in the bill, for the purpose of presentment, and that the house was shut up, and no one there; and this, although the declaration alleges the bill to have been presented and shown to the acceptor. Chitty on Bills Ch. 9, page 367, 10th American from the 9th London edition.
    If the acceptor has absconded, or his place of usual residence cannot, upon reasonable inquiries, be found, that will be a sufficient excuse for non-presentment. Story on Bills, section 351. If the acceptor has absconded before the day of payment, and he cannot be found, and his place of residence deserted, the omission to make due presentment, would, it be thereby excused. Story on Bills, section 327.
    The case of Hiñe v. Allely. 4 Bam. & Adolf., page 624, to be found in 24th English Common Law Roports, page 127, is a strong case in point. This was an action of assumpsit on a bill of exchange drawn upon P. P. No. 6, Bridge row, and accepted by him; an averment that the bill when due was presented and shown to P. P. for payment, is supported by proof that the holder went to No. 6, Bridge row, to present it, but found the house shut and no one there. Upon examining this case the Court will find that the fact of going to the house and finding it shut up, was deemed a sufficient presentment, without any further inquiry being made by the holder for the acceptor.
    The demand made of R. Buchanan we think sufficient also, to charge the indorsers. He was the assignee of all the effects of the firm of McCandless, Semple & Co. He had all their property, and held it to pay the debts of the firm. The creditors of the firm had a right to look to him for payment, and he had a right undoubtedly to pay, if he had funds in his hands. And for the purpose of paying the debts of the firm, Buchanan may be considered as their agent, legally authorized to pay this bill as well as all other claims against the firm. If I am correct in this, the demand made of Buchanan, without any other evidence of demand, would be sufficient to charge the indorsers.
    If an acceptor has become a bankrupt, and assignees are appointed, presentment should be made to them, if their place of residence can be ascertained by reasonable inquiries. Story on Bills, section 362.
    The general principle of law will not be controverted, that demand may be made of an agent who is authorized to. pay the the bill. In this case we claim that the evidence proves that Buchanan had authority to pay this bill, with all other claims on the firm. He was an assignee of all the effects of the firm for the benefit of all the creditors of the firm, which gave him .authority to pay this bill.
    
      
      Daniel Peck, for Defendant in Error.
    Was there such testimony here, as should charge the indorser ? I contend that there was no evidence of any demand of the acceptors: This is the only question to be settled in this suit.
    Let it be remembered that this bill was drawn in Wheeling, on a firm who had a house in Cincinnati, and directed to them there, but that the bill was not payable at any place; a rather unusual circumstance for a bank transaction.
    The firm of the acceptors consisted of threé; one resided in Pittsburgh, one in Covington, Ky., and the other in Cincinnati. The bill was discounted here.
    Under these circumstances, what was the duty of the holder of this bill, to charge the indorsers; for the indorsers were merely sureties for either the drawers or acceptors.
    Where a promissory note is not payable at any particular place, the general rule of law is, that in order to charge the indorser, “ payment must be demanded of the maker personally, or at his dwelling house or other place of abode, or at his counting house, or other place of business. Story on Prom. Notes, § 235.
    The bill in question was not payable at the Franklin Bank, nor at C. McCallester & Co. A demand made of the acceptors at any place would have been sufficient to charge the indorsers, or of any one of the three ; this was not done. The demand was not made of the acceptors, or of either of them personally, or at the dwelling house, or other place of abode, or at the counting house, or other place of business of the firm, or any one of its members.
    ' The rule laid down by Story has several exceptions; does this case come under any of the known exceptions ?
    What are the exceptions ?
    1. Where the maker has absconded, , demand will ordinarily be excused, and notice of that fact will charge the indorser. There is no pretence of this.
    
      
      2. Where the maker is a seaman, on a voyage, having no jn the State, the indorser is charged without making a ' ° . But although the maker be absent on a voyage, if he has a domicil in the State, demand must be made there. If the present case in any respect resemble this, it is against the plantiff, for although McCandless Was absent whether from the State does not appear, yet the place of his abode was at the City Hotel, in the State,
    In every case where the maker has no known residence, or place at which a note can be presented for payment, the indorser will be charged without any demand.
    3. If a note is made by a resident of the State, who, before it is payable, removes from the State and takes up a permanent residence elsewhere, the holder need not follow him to make demand, but it is sufficient to present the note for payment at the former residence of the maker. 6 Wheat. 498. Nothing of the kind happened in this case.
    These exceptions all stand on peculiar grounds, that it would be impossible to make a demand on'one who had no domicil in the State, or was a resident of another State, or was on a voyage, when no presentment could be made.
    When a man has a place of abode, it is presumed that he has some one there to pay the money.
    A demand, at any place, if personally made, is sufficient, but it is always sufficient to make it at the domicil, or place of abode, be the maker of the note where he may, from home.
    The reasonableness of this rule is not to be looked into alone, for as the Court says in McGruder v. Bank of Washington, 9 Wheat. 598, “ precision and certainty are often of more importance to the rules of laws than their abstract justice.”
    I do not know that any of this will be denied; it may be that the case will be attempted to be sustained on three other grounds.
    1. That there was' a demand at the residence of McCandless.
    
      2. That Buchanan was his trustee, and,
    3. That he was the agent of McCandless.
    These points were insisted on, in the trial below.
    The diligence required by our statute is this: that a “ demand from the maker on the 3d day of grace, and notice given of non-payment to the indorser, is due diligence.” Swan’s, Stat. 588. § 7.
    I do not know that our statute intended to make any other rule in respect to negotiable paper, than the old rule.
    What is a demand ? Not going to a tavern and asking for a person without disclosing the business.
    It is not to be supposed that the family of McCandless, or the keeper of the Hotel, knew this bank minion; or if they did, that they could even guess his business.
    He did not make it known, nor did he consider it any demand, for he gives the absence of McCandless as the reason for making this demand of Buchanan.
    Presentment and demand is defined to be this.
    
      “ A request to pay, or something amounting to it should be made, and it is necessary that the note should be present, ready to be delivered up.”
    For the authority to most of the foregoing points, I refer the Court to the case of Taylot v. Snyder, 3 Denio’s Rep. 145, and request the reading of that case throughout, as well as the case of Gilmore v. Spies, 1 Barber, Sup. Court Rep. 158. •
    
      “ In general the presentment should be made to the maker, either personally or at his dwelling house or place of business.” Story on Prom. Notes, ■§> 251
    
      “ In case of Bankruptcy or insolvency of the maker, a presentment should still be made to the Bankrupt or Insolvent, for payment, and it will be no excuse for the holder, that he has omitted in such case to perform his duty.” Same, <§> 252.
    In the case of Boultbee v. Stubbs, 18. Yesey, 21, the Lord Chancellor says,- that, “ If the acceptor of a bill becomes Bankrupt, the holder must give notice to the drawer, as another person has no right to judge what are his remedies.”
    
      “ It seems that a presentment may always be made to the maker wherever he may be found, although he may not be either at his domicil, or at his place of business. But it is by no means indispensible in any case, to make a personal presentment to the maker, if he has-a dwelling house or place of business. A presentment at the former, whether he be in the house or not, if it be within reasonable hours, will be a due and sufficient presentment to charge the other parties to the note; and if made at his place of business it will be sufficient, although he be absent therefrom; for in both instances he is bound to have a suitable person there, to answer inquiries, and to pay his notes if there demanded.” Same, 235.
    In Burrows y. Hannegan, 1 McLean’s Rep. 309, the Court says: “ The demand should have been made of the drawer personally, or at their usual place of abode, or of business. This was not done,, and consequently, the diligénce which the law requires, to give a recourse against the indorsers, was not used by the plaintiff.”
    A non-suit was ordered.
    “ If the maker has gone abroad, and has temporarily left the country, or be absent upon a journey, that will not be sufficient excuse for want of a due presentment of a note for payment, if he has left his family behind at his house, or it remains open, or if he has left his counting house or place of business open and accessible; or if he has a known agent to transact his business at the place of his domicil during his absence : For in all such cases a presentment should be made at his dwelling house, or place of business, or a demand should be made upon such agent: as in either case it is obvious that the funds may have been provided to meet the exigency.” Same, § 236.
    As to agents, it. seems that it must be an agent for such a purpose.
    
      Phillips v. Astling et. al. 2 Taunt. 206, is referred to as authority for this. G. Haughton, when this bill was accepted, was at sea, and remained some months after it became due, but had a sister in London to whom he had given authority to fill up and accept bills in his name, and to transact other business for him, and who had in fact filled up and accepted this very bill. No presentment was made to the sister, or to one else. The acceptor was absent at sea.
    The Court intimates the opinion, that a presentment to the sister as the agent, would have been sufficient. This was a suit against a guarantor for the payment of the. bill by the acceptor.
    It is said that when the acceptor becomes Bankrupt, a pre sentment ought to be made to the assignee in Bankruptcy. I have not seen any such case. It may be so decided under our Bankrupt law, but that question cannot arise in this case; the transaction happening in March, 1834. Insolvency is certainly no excuse.
    Was Buchanan the agent of McCandless, Semple & Co. for any such purpose, or in fact for any purpose whatever ? ■
    There is no such evidence in the case; he and Carneal had the property of the firm as trustees for them and the creditors, to be by them realized, and paid over according to the terms of the assignment,- of which we are entirely ignorant.
    ■ We can infer from the testimony nothing else, than that they were ordinary assignees. Buchanan’s testimony was taken, and if he had been agent he would so have testified.
    It seems that any agent who is to perform any such duty, must be clothed with p'ower to transact such business, and must be the known agent for such a purpose. Being assignee is not sufficient, and it would seem that he must be at the place of business of the maker, and it must be in his absence.
    Now in this cas?, McCandless, one of the acceptors, was temporarily absent for a, few days only: a circumstance that might happen to any one often, and no one would think of making an agent for such an absence, except to leave the matter with his family, or some one at his business place. There was no agency here.
    There was then no presentment and demand sufficient to charge the indorser, and the nonsuit was properly directed.
    
      I have hitherto considered this case as though McCandless was (-¡ie g0]e acceptor of this bill. r
    will now consider it as a joint acceptance of the three partners.
    If McCandless had died, it would not have been sufficient to have presented .the bill to his personal representative; the right of action would have survived against the surviving partners.
    Suppose that none of the acceptors lived in Ohio at the time of the acceptance, or at the time the bill became due, what would have been the duty of the holders, to have charged the indorsers ?
    The diligence necessary to charge the indorsers, would have been" to have made the demand of some of the acceptors, wherever they reside, if their residence could be discovered. See 3 Denio,il45.
    If the plaintiffs put this upon the ground that McCandless could not be found, why did not the notary take the papers 400 yards across the river, to make the demand of Semple ?
    The case of Taylor v. Snyder, 3 Denio, 145, was where the maker lived in Florida, and dated and made the note in Troy, New Fork.
    The Court held, that in order to charge the indorser, a demand should be made of the maker at Apalachicola in Florida, and the indorser was discharged.
    The Court says, (page 153,) “ the indorser voluntarily consents to take such an order, and why should he not perform the condition on which the ultimate liability of the indorser depends ? I confess I see no reason why he should not. There is no mistake or misapprehension of the fact, at the time the indorsement is made. The indorser knows where the maker resides, and that it is in another State. He knows by law, unless the intervention of a State line makes a difference, the maker must be sought where he resides, and the demand must be there. When the time for payment arrives, the maker is still at his former residence ; the facts of the .case are precisely as they were when the order was drawn.
    
      “ Why in such a case, should the State line make a difference in the construction and legal effect of this contract of the indorser ? It was fairly entered into by the parties ; let it be fairly observed and performed by them.”
   Avert, J.

The single question raised in the case is, whether due diligence has been used by the holder of the bill, to make demand of payment upon the acceptors.

None of the acceptors lived in the city of Cincinnati when the bill fell due, except McCandless, andas the bill had been drawn onjthe firm at Cincinnati, and accepted there, the holder had a right to treat that as the place of payment.

The notary testifies that he made diligent search and inquiry for the acceptors, but could find neither of them — that he went with the bill to the City Hotel, the boarding house of Mc-Candless, the only one of the firm residing in the city, and was informed that he had gone down the river and would be absent some days — that the firm had no office or counting house at that time in the city, that he knew of — that he then went to the counting room of McAlister &, Co., and demanded payment of Robert Buchanan, who was represented to him as the agent or trustee of one of the firm of McCandlesss, Semple & Co. As Buchanan is not shown by the evidence to have been an agent of the firm, or either of them, for any purpose connected with the bill of exchange, the demand upon him was not sufficent to charge the [indorser, and can be of no avail in the case, except to show the diligence and good faith of the notary. His inquiries enabled him to ascertain that McCandless had, not long before, been a boarder at a hotel in the city, and accordingly, as it was his duty, he went there to seek for him, taking the bill along. By the information obtained, it appeared that he had gone down the river, and would be absent some days. Was the notary excused after receiving this information, from attempting any further to make demand of payment at that boarding house ? That is the only question; if he was, then this defendant, the indorser, is charged.

If he had exhibited his bill, either to the landlord or bar-keeper, ma(^e known the purpose for which he took it there; no can be found, I think, to deny the sufficiency of such an effort to demand payment. Where a bill or note is payable at a specified place — by this is not meant a town or city at large — a presentment and demand, if practicable, must be made. Where the party is himself met with by the holder, when on the day of payment he is seeking to make a demand, where the party has a known agent transacting business for him, or has a known place of business, or a dwelling house in which his family is residing; there is good reason for requiring the holder to make known his errand. It may fairly be supposed in each one of these instances, that some interest will be felt, to see the demand satisfied, and provision may be found to have been made for the very purpose. It has not, however, been shown, by any of the numerous authorities cited, so far as they have been examined, or the points in them referred to, that the holder has ever been required to exhibit his claim to strangers (that is, strangers in no way connected with the person indicated by the contract,) or to be guilty of any intrusion upon them, in order to fix a liability upon the indorser. If the dwelling house is shut up, or the house of business, no demand is necessary; and in such case, it is not required to present the claim, or address inquiries about it, either to the neighbors or others. The boarder at a public hotel can scarcely be said to stand in any such relation to the keeper or any of the inmates, as that which exists between him and his family, his agent or his partners. It is the judgment of a majority of the Court, upon a view of the authorities, that no further act was required on the part of the notary. The non-suit, therefore, was improperly directed by the Court; the evidence should have been left to the jury. Judgment reversed.

Birchard, C. J.,

dissenting. I agree with the majority of the Court on all the points in this case, save one. Upon that, I entertain strong doubts, whether the learned judge of the Court of Common Pleas was not right. Many commercial men, engaged in extensive business in our large cities, are domiciled, with their families, at the public hotels, or boarding Should one of them, having closed his business, in consequence of a sale, or of other cause, find occasion to leave home, for a temporary purpose, and having out-standing against him commercial paper which would mature in his absence, he would, if an honest man, desirous of maintaining his credit, provide for the payment by leaving the necessary funds in, the hands of some member of his family, or friend, at his boarding house or hotel.

Now if it is due diligence, and sufficient, for the Notary to call at the hotel or boarding house, and on receiving information that the individual had left town, (not absconded,) to depart without further act or inquiry, and without making his business known, the paper of a man of credit may happen to be protested, wrongfully. , The wife, or friend, holding the means of payment, with special instructions to take up the bill, or note, might very innocently give the information that the acceptor, or maker, was from home, and would not for several days be in town. If polite, well bred people, they would give this answer without indulging in inquisitiveness, especially if the Notary was a gentleman, and a stranger. It would have been a very easy matter for the Notary, in this case, when inquiring at the City Hotel, to have stated his business, and also to have asked if any one had instructions, and had been provided with means to meet the demand. Had that been done, I should have found' in the case evidence of due diligence, and that the paper was well protested. As it is, my judgment is the other way. Who knows that the landlord, or person in charge of the books of the City Hotel, had not the money in his hands for the purpose of meeting this note ? Who knows that he would not have paid it, if the Notary had informed him that he was a Notary, and charged with the duty of demanding payment, and entitled to receive payment and discharge the paper ? To say that it is not probable the payinent would have been made, had this been done, is no answer to the question. I-agree that there is very little reason to suppose payment was provided for, yet it may have been. No one, from the protest, can say the fact was not so.

The principle, as applied to the case at bar, may work no injustice. - Still, when established, it will operate upon all cases. The rule should be a safe one, for solvent men, as well as for those of doubtful means.  