The Trustees of the Belmont Bank of St. Clairsville vs. Andrew Patterson

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.