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ceptor if it were a bill, or with express waiver of demand and notice written over his signature; and in becoming an indorser he indicates sufficiently by the very form of his contract that he requires due demand and notice before he will be charged. If demand is not made, or notice not given, we should say that the contingent liability against which he was indemnified had not accrued, and the consideration of the indemnity failing, it would revert to the party who had made it. But these inferences may be all met with proof that it was the agreement of the parties that the indorser should pay the note, and that the security was given either to provide the means of payment or to reimburse him.35

§ 1139. (4) When security given after indorsement and before dishonor. When the security is given after the indorsement, during the currency of the instrument — that is, before its maturity - and nothing but the mere naked fact of its acceptance by the indorser appeared, the inference, as it seems to us, would arise that he became apprehensive that the party who was primarily liable might be unable to meet it, and that to provide for the contingency of having the liability devolved upon him, he had taken the security as indemnity against such liability; but that liability still being contingent upon due demand and notice, the mere fact that the indorser had guarded himself against personal loss, in whole or in part, would still seem to us to create no presumption that he designed to change the nature of his contract, and dispense with the conditions necessary to make his liability absolute. There is no privity with the holder in the subsequent arrangement between the principal and his indorser. The indorser does not change his contract, but only protects himself from loss, and it is going very far to say, that a transaction with one person, of itself affects his contract with a third. There may be circumstances, however, connected with the indorsement, or with the acceptance of security, which indicate an intention of the indorser to dispense with demand and notice; or from which such intention may be so strongly presumed that it would operate as a fraud upon his principal or the holder, to discharge him. These views are borne out by high authority.36 "The true criterion," as expressed by Chief Justice Gibson, seems to be the obligation to take the note.' up

35. Bond v. Farnum, 5 Mass. 170.

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36. Haskell v. Boardman, 8 Allen, 38; Taylor v. French, 4 E. D. Smith, 458; 1 Parsons on Notes and Bills, 571, 572; Kramer v. Sandford, 4 Watts & S. 329. 37. Kramer v. Sandford, 4 Watts & S. 328.

§ 1140. (5) When security is given after dishonor. As a general rule, it is the settled doctrine that where security is taken after dishonor of the instrument, the drawer or indorser taking it does not thereby waive the right to show any laches of the holder in respect to presentment or notice.38 In Massachusetts, where the indorser took two assignments, the one before and the other after maturity, and it appeared that neither demand nor notice were in proper time, Shaw, C. J., said: "The second assignment does not affect the question; it does not appear to have been made till several days after the note became due." 39 And it has been said, in New York, that where the indorser takes an assignment after maturity, even supposing himself liable to pay the same, it will not amount to a waiver of the objection to want of due presentment or notice, "since it cannot justly be inferred that he intends, at all events, to make himself liable for the payment of the note, but he takes the security merely contingently, in case of his ultimate liability." 40

Where, however, it is distinctly shown that the drawer or indorser, taking security after maturity, knew at the time of the holder's laches in respect to presentment or notice, the fact that he took the security would be a circumstance of evidence to show a waiver of the objection, though not conclusive or perhaps even presumptive proof. Such, at least, is the view which seems to us correct. Further, we do not think the law could justly go, but the doctrine of the text, as above stated, is not without dissent.41

Taking an assignment of all the maker's property by the indorser to cover his liability to him, after dishonor, does not waive the want of notice, the note not being mentioned in the deed. 42

38. Story on Notes, § 278; 1 Parsons on Notes and Bills, 595; First Nat. Bank v. Shreiner, 110 Pa. St. 188; First Nat. Bank v. Hartman, 110 Pa. St. 196.

39. Creamer v. Perry, 17 Pick. 332. To same effect, see May v. Boisseau, 8 Leigh, 164; Tower v. Durell, 9 Mass. 332; Richter v. Selin, 8 Serg. & R. 425. 40. Otsego County Bank v. Warren, 18 Barb. 290.

41. Debuys v. Mollere, 15 Mart. 318. And in 1 Parsons on Notes and Bills, 619, it is said: "There is certainly ground to contend that if an indorser takes security after maturity, this is evidence of demand and notice; for why should a person take these steps to secure himself unless his liability actually existed?" Saunderson v. Saunderson, 20 Fla. 307, approving the text. 42. Walters v. Munroe, 17 Md. 154, Goldsborough, J., saying: "The deed to Funsten" (the trustee) was executed after the note had fallen due, and the question is, whether such a deed dispenses with proof of notice to the indorser. And we think a sufficient answer is, that this note is nowhere

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§ 1141. (6) Form of assignment and character of security. The form in which the security is given may often be an important matter of consideration in determining whether or not the indorser assumed the payment of the note. When the property has been placed directly in his hands, and he has power to convert it immediately into money, slighter circumstances might suffice to complete the proof of such assumption by him, than when it has been conveyed to a trustee.43

In the latter case, unless there was plain language to indicate the contrary, the presumption would be strong that the trust was created as an indemnity in the event of liability being fixed; and in the former that presumption would still exist, if nothing but the mere assignment appeared, but it might be much more easily overcome by circumstances.44

§ 1142. The character of the security may also have a material bearing on the question. If before maturity the maker placed in the indorser's hands a sufficient sum of money, the latter's intention to assume the payment would be presumed; and if the security were bills, or notes falling due before maturity, or other securities readily made available, slighter circumstances would prove the assumption that if it consisted of real or personal property, which is not so easily convertible into money. And some of the cases

mentioned or referred to in the deed. But, then, it is said, if the defendant admits he was fully indemnified, that will excuse the want of notice. Whatever effect such an admission might have, if made by a party with full knowledge of the facts which discharge him from liability on the note, it is unnecessary for us to decide. In this case, the declaration of Munroe" (the indorser) "relied on is, that he was fully indemnified for all his liabilities for Harrison'" (the maker), "which must be understood to refer to his legal liabilities, and cannot be construed to deprive him of his legal defense in this case, based upon want of notice, without which he was not legally liable." 43. Story on Notes, § 282; Denny v. Palmer, 5 Ired. 610.

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44. In May v. Boisseau, 8 Leigh, 195, Brockenburgh, J., said: "It must be observed that there is a great difference between an absolute conveyance and a mere conveyance to a trustee, as an indemnity. In this case the property was not put into the hands of Peter Boisseau to pay off these particular debts, but into the hands of a trustee as an indemnity. It was designed, too, to indemnify not only against these supposed indorsements, but against various other suretyships on which Peter was bound for Edward, and to secure a debt due from Edward to Peter, and a debt and an annuity due from Edward to his mother, Priscilla Boisseau." See also Tucker, P., p. 213, and Cabell, J., p. 204, and Cornay v. Da Costa, 1 Esp. 303.

have intimated that the acceptance of securities readily convertible is in itself an implied assumption to pay the note.

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A confession of judgment is prima facie, but not conclusive evidence of waiver of laches in respect to demand and notice. may be evidence of an acknowledgment of liability, but is not conclusive evidence. It is not a legal presumption. It is capable of being explained and repelled by the circumstances under which it was given." 46

§ 1143. Where the money or the security is received to meet a particular indorsement or indorsements, there is no waiver of demand or notice as to any other.47

In England it has been held, that where the acceptor told the drawer a few days before maturity that he could not pay the bill, and that the latter must take it up, and gave him a part of the money for that purpose; and the drawer received the money and promised to take it up; nevertheless he might still set up want of due presentment, and the money received as had and received to plaintiff's use.48 This decision is quoted with apparent approval, but it seems to us unjust.

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The fact that the indorser has funds in his hands belonging to the maker, which he is merely authorized to apply to the payment of the note, but which he has not received for that avowed purpose, nor agreed to apply to that purpose, is no waiver of presentment, protest, or notice.50

SECTION III.

WHEN MAKER OR ACCEPTOR HAS ABSCONDED.

1144. In the third place, the absconding of the maker or acceptor is a valid excuse.

When the payor of the bill or note has actually absconded between its execution and its maturity, and especially when he is notoriously insolvent, inquiries are unnecessary. Presentment to him personally is of course impossible, and presentment at his last place of residence or business is altogether unnecessary. The mere

45. Dufour v. Morse, 9 La. 333; Kramer v. Sandford, 4 Watts & S. 328. 46. Richter v. Selin, 8 Serg. & R. 425.

47. Prentiss v. Danielson, 5 Conn. 175; Bond v. Farnham, 5 Mass. 170. 48. Baker v. Birch, 3 Campb. 107; Chitty, Jr., on Bills, 848.

49. Chitty on Bills (13th Am. ed.) [*338], 379; 1 Parsons on Notes and Bills, 587.

50. Ray v. Smith, 17 Wall. 416.

fact of absconding is all that it is necessary for the holder to show. This doctrine is well settled in England,51 and by the current of American authorities;52 and Massachusetts is perhaps the only State in which a contrary view is taken. The earlier authorities in that State were of the same tenor,53 but the more recent cases have adopted a more rigid theory, placing the absconding debtor upon the same footing as one merely removing into another jurisdiction. It is to be regretted that there is any departure from a principle so reasonable and so well settled.

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Even when he had absconded to another place in the same State or country, the excuse for nonpresentment would be sufficient, unless the holder knew where he was, in which case he should seek him.55

51. Bayley on Bills, chapter VII, section I, p. 196; Anonymous, Ld. Raym. 743. "It is clear,” says Chitty on Bills (13th Am. ed.) [*367], 412, “that if the drawee has never lived at the place of address, or has absconded, this circumstance will sufficiently excuse the holder from not making further inquiries after him.”

52. In Lehman v. Jones, 1 Watts & S. 126, the court said: "Where indeed the drawer of a note or the drawee of a bill has merely removed from the place of his residence indicated by the bill, it is the business of the holder to inquire for him and ascertain where he is gone, in order that he may follow him; but when he has secretly fled, an application at the place would lead to no information in respect to him; and the law requires nothing which is nugatory." Gillespie v. Hannahan, 4 McCord, 503; Wolfe v. Jewett, 10 La. Ann. 383; Taylor v. Snyder, 3 Den. 145; Duncan v. McCullough, 4 Serg. & R. 480; Bruce v. Lytle, 13 Barb. 163; Ratcliff v. Planters' Bank, 2 Sneed, 425, 455; Hunt v. Maybee, 7 N. Y. 266; Story on Bills, § 351; Hoffman v. Hollingsworth, 10 Ind. App. 353, 37 N. E. 960.

53. Putnam v. Sullivan, 4 Mass. 45; Hale v. Burr, 12 Mass. 85; Shaw v. Reed, 12 Pick. 132; Widgery v. Munroe, 6 Mass. 449. These cases were positive and clear; and in one of them (Hale v. Burr, 12 Mass. 89), it was said: “It is well settled that if the promisor absconded 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."

54. Pierce v. Cate, 12 Cush. 190 (1853). In this case the doctrine is reversed, the court overruling instructions that "if the maker had absconded, leaving no visible property subject to attachment, no presentment of the note to the maker, or demand at the dwelling-house, or other inquiry for him, was necessary." The contrary doctrine was deemed so well settled, that the question was not discussed. See 1 Parsons on Notes and Bills, 450. A return to the former ruling has been anticipated in Redf. & Big. Lead. Cas. 452; but in Grafton Bank v. Cox, 13 Gray, 504, it has been reiterated.

55. Reid v. Morrison, 2 Watts & S. 401: Duncan v. McCullough, 4 Serg. & R. 480. In Redf. & Big. Lead. Cas. 339, it is said: "If the absconding

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