
    Samuel Hale versus Martin Burr.
    Where the maker of a promissory note dies, and an administrator is appointed before the note falls due, a demand upon the administrator is not necessary, in order to charge the indorser, so that notice of the death and non-payment be duly given to him ; unless the maturity of the note happens more than a year after the appointment of the administrator.
    Assumpsit by the indorsee against the defendant as indorser of a promissory note, signed by Joseph Francis, payable to the defendant or his order, in sixty days and grace, dated August 1st, 1812.
    At the trial of the action, which was had before the present Chief Justice, November term, 1813, on the general issue, it was in evidence, that Joseph Francis, the promissor, died on the 4th of September, 1812, and that administration of his estate was duly committed to William Dodd on the 14th of the same September, and that he gave legal notice of his appointment. The note was lodged in the Union Bank, in Boston, for collection. At the time it fell due, the runner of the bank left a notification at the counting-room formerly occupied by the said deceased, and where he usually did business. No demand was made upon the said administrator, who lived, and had a place of business, in Boston, which was known to the runner, by whom notice was given to the defendant.
    One Dench, the former clerk of the deceased, at the request of the creditors, took care of the property of the deceased, and occasionally went to the counting-room, until the said Dodd was appointed administrator. The said Dodd then took all the books and papers of the deceased to his own store, and took the sole charge of his other property. Before the note became due, all the property of the deceased was sold and delivered ; and the counting-room was not used for some time before. The estate of the deceased was proved to be insolvent.
    
      [* 87] * A verdict was returned for the defendant by direction of the judge ; and it was agreed, that, if the Court should be of opinion that a demand upon the administrator, under the circumstances of this case, was not necessary to entitle the plaintiff to recover, the verdict should be set aside, and the defendant should be defaulted ; otherwise, that judgment should be rendered on the verdict.
    The cause was at the last March for the plaintiff, and by Heard, for the defendant;
    and now the opinion of the Court was delivered by
   Parker, C. J.

The question presented in this case is, whether an indorsee of a negotiable promissory note can maintain an action against the indorser, the promissor having died, and an administrator having been appointed, and duly qualified to act, before the day of payment; without proving a demand upon such administrator at the maturity of the note. Whether such demand was actually made or not, according to the usage of the bank where the note was left for collection, was a question for the jury ; and by the verdict it is established that none was made. But, as the jury were instructed that such a demand was necessary ; if that instruction was not right, the verdict must be set aside.

And we are all of opinion that the instruction was wrong ; and that it is not necessary, to charge the indorser, that a demand should be made of the administrator. The authorities cited by the defendant’s counsel go merely to prove, that, in order to obtain a protest of a bill of exchange, or to charge the drawer or indorser, if the payee be dead, it is incumbent on the holder to present the bill to his personal representative, if he live within a reasonable distance.

From the strong analogy subsisting between bills of exchange and promissory notes, it is possible that this rule of law may be as applicable to the latter species of contract as to the former. Yet no authority has been cited to show that the rule has been applied to promissory notes, or to any instrument other than a foreign bill of exchange, where by the law merchant a protest is necessary. [ * 88 ] * In England, however, there may be reasons for making a demand upon an executor or administrator of a deceased promissor in a note necessary, which do not exist in this country ; and, if the reasons upon which the law is founded do not exist, there is no cause why we should not decide according to the nature and spirit of the contract.

In this State a demand upon an administrator would, in most cases, be entirely nugatory. He is not obliged to pay any debt of the deceased, except such as are particularly privileged, until a year from his appointment. If sued within the year, he is entitled to a continuance, of course. This indulgence is given to enable him to collect the effects of the deceased, and to ascertain their sufficiency to discharge all the debts. If there should be a deficiency, a general distribution takes place among all the creditors, without regard to the character of their demands, unless in the few excepted cases above alluded to. Under these circumstances, should he pay any debt, and it should afterwards appear that the estate is insolvent, he pays at his peril. A prudent executor, or administrator, will, therefore, seldom hazard the payment of a debt, before he has ascertained the situation of the estate ; and a demand upon him would be sure to meet with a refusal. Such a demand would, therefore, be merely a troublesome formality, without any use ; and notice to the indorser, that (the promissor being dead) he will be looked to for payment, will in every respect be as advantageous to him as a previous demand upon the promissor.

It is well settled, that, if the promissor abscond before the day of payment, or has concealed himself, the necessity of a demand is taken away. Due diligence to find him is all that is required'in the latter case ; and, in the case of absconding, even that is not necessary.

When the party is dead, and his representative is not obliged to pay his debts for a year after he assumed the trust, it would seem as idle to require a demand of him as it would be to pursue one who has absconded.

* In England there may be more reason for requiring [ * 89 J such demand ; for there the representative is at liberty to pay the debts, although there should not be enough to pay all, if he has regard to their rank and degree ; and he may always discharge himself by showing that he has paid away all that he has received. He may, therefore, pay a bill of exchange, or promissory note, when called upon. But in this country it is otherwise ; for, where the estate is insolvent, as in the present case, there is no reason to presume that a demand would be effectual.

We do not decide, that, when a note shall fall due after the expiration of the time allowed the executor or administrator, by our statute, upon an estate not represented insolvent, a demand upon him, or due diligence to make one, must not be proved. But in the present case we are satisfied that no such demand was necessary. The verdict must, therefore, be set aside, and the defendant be called.

Defendant defaulted. 
      
      
        Chitty on Bills, Story’s edit., 172, 182. — Molloy, L. 2, c. 10, § 34. — Pothier,146,
      
     
      
      
         But see Chitty on Bills, 6th ed., 246 - 262. — Bayley on Bills, 5th ed., 219. — Thomson on Bills, 444. — Price vs. Young, 1 Nott & Cord, 438. — Roscoe, Ev., 158, 2d ed -2 Phil. Ev. 22.
      
     
      
       Chitty, 70. — L. Raym. 743.
     
      
      
        Putnam vs. Sullivan, 4 Mass. Rep. 45. — Widgery vs. Munroe, 6. Mass. Rep. 449 —Whittier vs. Graffam, 3 Greenl. 82.
     
      
      
        Thomson on Bills, 444.
     
      
      
        Burrill vs. Smith, 7 Pick. 291
     