stranger, it is not evidence of a waiver of laches; but it might be evidence that due presentment was made and notice given." And so it seems a direct waiver of protest or notice will not bind if made to a stranger.10 But when the promise is made to the holder, it inures to the benefit of all who acquire the bill or note through him; and so will any agreement or understanding or arrangement between an indorser and the maker inure to the benefit of an indorsee in a suit against the indorser.12

8. Miller v. Hackley, 5 Johns. 375; Olendorf v. Swartz, 5 Cal. 580; National Bank v. Lewis, 50 Vt. 622, 28 Am. Rep. 514, 517, and note; Devendorf v. West Va. O. & O. L. Co., 17 W. Va. 175. But in Byles on Bills [*292], it is said the promise may be made to a stranger.

9. Potter v. Rayworth, 13 East, 417, Lord Ellenborough saying: “Whether the promise to pay was made to the plaintiff, or to any other party who held the note at the time, it was equally evidence that the defendant was conscious of his liability to pay the note, which must be because he had due notice of its dishonor." Devendorf v. West Va. O. & O. L. Co., 17 W. Va. 175.

10. National Bank v. Lewis, 50 Vt. 622.

11. Kennon v. McRea, 7 Port. 175; Rogers v. Hackett, 1 Fost. 100; Potter V. Rayworth, 13 East, 417; Gunson v. Metz, 1 B. & C. 193, 2 Dowl. & R. 334. 12. Williams v. Brobst, 10 Watts, 111; Marshall v. Mitchell, 35 Me. 221; Curtiss v. Martin, 20 Ill. 557; 1 Parsons on Notes and Bills, 611; Devendorf v. West Va. O. & O. L. Co., 17 W. Va. 175.

VOL. II-10

CHAPTER XXXIII.

SPECIAL CIRCUMSTANCES OF EXCUSE WHICH SHOW AN INABILITY ON THE PART OF THE HOLDER TO MAKE DUE DEMAND, PRESENTMENT, OR PROTEST, OR GIVE DUE NOTICE.

SECTION I.

WHEN THERE IS NO PERSON IN EXISTENCE UPON WHOM DEMAND CAN BE MADE, OR WHO IS LEGALLY BOUND.

§ 1111. In the first place, where there is no person in existence upon whom demand can be made, or none who is legally liable, the presentment is excused, for the reason that it is either an impossibility or that it would be a fraud upon the holder to require it. And firstly, when there is no person in existence upon whom demand can be made. Thus, where the maker has died before maturity, and there is no personal representative of whom payment could be demanded, it cannot of course be made; but it would be otherwise if a personal representative had been appointed.1 Where the maker and his whole family had been drowned two days before the maturity of the note, and there was no will, and no letters of administration taken out, the want of demand was excused. And so in all cases, where there is an actual party bound as promisor, but no one then existing who represents him, the delay in making demand is excused. But it is no excuse for want of notice to the drawer or indorser.1

1. Chitty on Bills (13th Am. ed.) [*436-437]; 1 Parsons on Notes and Bills, 444, 445.

2. Haslett v. Kunhardt, Rice, 189.

3. Waring v. Betts, 90 Va. 46, 17 S. E. 739, 44 Am. St. Rep. 890.

4. Price v. Young, 1 McCord, 339. This was a suit against an indorser of a note, the maker of which had died before maturity. The excuse alleged for want of demand was that there was no legal representative on whom it could be made. The court said: "Where a demand cannot be made, the law does not dispense with notice. The circumstances which prevented it, and the notice, are still required. It was the duty of the holder, in this case, admitting that a demand could not have been made, to have given the defendant notice in as short a period, after having ascertained that the demand could

§ 1112. But where there is no principal party then or at any time existing, who is legally bound upon the bill or note, it would seem that both presentment and notice are excused.

Thus, when an agent signed his principal's name after his death, there could be no demand, and, therefore, the indorser would be bound without it.5

§ 1113. When note is void, and indorser knows it, demand and notice excused. So where the note is void as between the maker and payee, on account of an illegal consideration, the indorser may be held without any proof of demand or notice; and the general principle is, that whenever the principal party is not bound, the indorser is bound without demand or notice. The payee, when he indorses the note, warrants, by the very act of indorsement, that the maker is legally liable to pay it, knowing, as he necessarily must, that such is not the case. The holder, in the belief of its truth, might look only to the maker, and fail to take the usual steps to charge the indorser; and if, when he became aware that the maker was not legally bound, he could not recover against the indorser, the latter would be protected by his own fraud, and the holder suffer by the confidence placed in him. Thus, in Massachusetts, where a note was void for usury between maker and payee, and the holder failed in suit against the maker on that account, it was held that he could not hold the indorser without any proof of demand or notice. Sewall, J., compared it to the case of a bill drawn without funds, the indorser of the note standing in the re

not be made, as she could have been required to do so, if a demand had been made. Suppose the demand had been made on the 26th of October, and no notice to the defendant had been given until the 10th or 15th of November, could this have been considered a reasonable time when the parties were so contiguous to each other as to have enabled the plaintiff to have given the notice in five hours, or at most in one day? I presume not. The law is express, that the notice shall be given as soon as shall be conveniently practicable."

5. Burrill v. Smith, 7 Pick. 291.

6. Bayley on Bills, chapter VII, section II, p. 205; 1 Parsons on Notes and Bills, 444, 445.

7. Perkins v. White, Ohio S. C., January, 1881; Cent. L. J., vol. 12, p. 263; Maddox v. Duncan, 143 Mo. 613, 45 S. W. 688, 65 Am. St. Rep. 678, note, text cited.

8. Copp v. M'Dugall, 9 Mass. 1. See also Chandler v. Mason, 2 Vt. 193; Maddox v. Duncan, 143 Mo. 613, 45 S. W. 688, 65 Am. St. Rep. 678, note, text

lation of drawer, and the maker or acceptor, and said: "When the promise or acceptance is void, as it is in case of usury between the drawer and acceptor, if he will resort to that defense against his promisee, the contract becomes, as it respects the indorser, a draft accepted without funds that is, in the case of a promissory note." The like doctrine has obtained in New York, where it is held that the indorser of a forged check is liable without demand or notice; and in England, where it is held that the indorser of a bill drawn on an improper demand is not entitled to notice;1o and it would extend to any case in which there was no legal principal bound, as where the maker or acceptor was an infant, married woman, or lunatic,11 or was a fictitious person, the indorser knowing it."

12

11

§ 1113a. Whether indorser is bound as such without demand or notice when he has no knowledge of infirmity in the bill or note.Knowledge of the infirmity rendering the note void, on the part of the drawer or indorser, is considered by high authorities essential to charge them without demand or notice the transaction. amounting in such case to a fraud.13 And an accommodation indorser of a fictitious bill purporting to be drawn by an agent on his principal, it has been held, is entitled to notice if he possessed no knowledge of the fraud, Mansfield, C. J., saying: "He has only placed himself in the common situation of an indorser;" and Gibbs, J.: "He is entitled to notice that he may have his remedy against them," i. e., "those who ought to pay." 14 But every indorser warrants the instrument to be valid, and exactly what it seems to be; and whether he knows the contrary or not, it seems to us that he is absolutely bound, if his warranty fails, without demand or notice,15 at least to the extent of refunding the con

9. Turnbull v. Bowyer, 40 N. Y. 456.

10. Cundy v. Marriott, 1 B. & Ad. 696.

11. Burrill v. Smith, 7 Pick. 291; 1 Parsons on Notes and Bills, 445.

12. Farmers' Bank v. Vanmeter, 4 Rand. 553; 1 Parsons on Notes and Bills, 460.

13. "The infancy of the maker or acceptor," says the learned editor of Ames on Bills and Notes, vol. 1, p. 469, " of course forms no excuse for nonpresentment of a bill or note," citing Wyman v. Adams, 12 Cush. 210. See the remarks of Prof. Parsons on this question, 1 Parsons on Notes and Bills, 444, note.

14. Leach v. Hewitt, 4 Taunt. 731. See Carter v. Flower, 16 M. & W. 747, and Farmers' Bank v. Vanmeter, 4 Rand. 561.

15. 1 Parsons on Notes and Bills, 560.

See vol. I, §§ 669, 669a.

sideration paid on the ground that he has passed a thing which does not answer to its description.16

§ 1113b. The doctrine that the indorser warrants the instrument to be valid, and must, therefore, be held as indorser if it turns out otherwise, without his knowledge, has recently received critical examination in New York, where it was held by the Court of Appeals that it would not apply to an accommodation indorser who received no part of the proceedings, and, therefore, was under no obligation to refund on the ground of failure of consideration. The court, in its instructive opinion, deprecated the nice distinctions dispensing with notice.17

SECTION II.

THE IMPRACTICABILITY OF FINDING THE PARTY TO WHOM PRESENTMENT SHOULD BE MADE, OR NOTICE GIVEN, OR ASCERTAINING HIS RESIDENCE OR PLACE OF BUSINESS.

ness.

§ 1114. In the second place, the want of due presentment, or due notice, will be excused when the holder, after exercising due diligence, cannot find the party to whom presentment should be made or notice given, or ascertain his place of residence or busiWhen this excuse is relied upon, it becomes often a question of nicety to determine whether or not the steps taken by the holder to find the party to whom presentment should be made or notice given, or to ascertain his place of residence or business, amounted to the due diligence which the law exacts, and it is, therefore, important to define in what such diligence consists.18 "It would be very hard, when the holder of a bill does not know where the indorser is to be found, if he lost his remedy by not communicating immediate notice of dishonor of the bill, and I think the law lays down no such rigid rules. The holder must not allow himself to remain in a state of passive and contented ignorance; but if he uses due diligence to discover the residence of the indorser, I conceive that notice given as soon as this is discovered

16. See vol. I, §§ 730 et seq., 740a.

17. Susquehanna Valley Bank v. Loomis, 85 N. Y. 207 (1881). See vol. I, § 669, 669a.

18. See on this subject, Story on Bills, § 351; Reinke v. Wright, 93 Wis. 368, 67 N. W. 737, citing text; Waring v. Betts, 90 Va. 46, 17 S. E. 739, 44 Am. St. Rep. 890.