#### Samuel Hussey *versus*Nathaniel Freeman.

Where the endorsee of a promissory note made a demand on the maker on the day the note became due, hut neglected for eight days to notify the endorser of the maker’s neglect of payment, although the parties lived within four miles of each other, the endorser was holden to be discharged, notwithstanding he afterwards discovered great anxiety to procure payment of the note by the maker.

Case upon a promissory note made by *Ebenezer Storer,*payable on the 20th of June, 1807, to the defendant or his order, and by him endorsed to the plaintiff.

The parties submitted the action to the decision of the Court upon the following facts agreed: —

At the time the note fell due, the plaintiff, as well as the maker of the note, lived in *Portland,*and the defendant at *Cape Elizabeth,*four miles from *Portland.*Payment was demanded of the maker on the 20th, and on the 28th of June notice was sent to the endorser, by the cashier of the *Portland*Bank, (with whom the note had been left for collection,) and was received on the 29th. There *97is no post-office in *Cape Elizabeth,*nor any mail establishment between that town and *Portland;*but persons are constantly passing from one town to the other. Soon after the defendant received notice of the non-payment of the note, he called on *Eleazar Greely,*(by whom the note had been negotiated,) in *Portland,*and inquired if the note had been paid; to which *Greely*replied that he did not know, but * presumed it had been paid, as [ * 85 J Mr. *Storer*had always paid attention to his notes punctually. The defendant then requested him to see if it was paid. The note was not then in *Greely’s*possession, and Hussey, the holder of it, was out of town. The morning after *Hussey’s*return, which was about the 1st of August, *Greely*asked him if-the note was paid. He answered that he did not know, but would go to the bank and inquire. *Greely*then requested *Hussey,*if the note was not paid, to get it and bring it to him; and at the same time informed him that *Freeman*had been over, and requested him to see if the note was paid. *Hussey*brought the note to *Greely,*who called at *Storer’s*counting-room, and received 120 dollars, which he endorsed on the note. *Storer*at that time promised to pay the residue on the following Tuesday, but on Monday night he failed. *Hussey*refused to take the 120 dollars of *Greely,*observing to him that .he had not gotten it at his request, to which *Greely*assented, saying that *Freeman*had requested him to collect it. On Tuesday morning, *Greely,*hearing of *Storer’s*failure, gave notice of it to *Freeman,*who came over and inquired of *Greely*if he knew of any property of *Storer's*which he could get at; and *Greely*told him he did not. After *Storer’s*failure, *Greely*returned the note, with the money he received of *Storer,*to *Hussey,*who received the same. Whatever *Greely*did, it is agreed, was done at the request of *Freeman.*

If the Court, upon this statement, should be of opinion that the plaintiff is entitled to recover, the defendant agreed to be defaulted ; otherwise the plaintiff agreed to become nonsuit, and judgment in either case to be entered accordingly.

The cause was argued by *Whitman*for the plaintiff, and by *Longfellow*for the defendant.

The opinion of the Court was delivered by

Sewall, J.

The defendant is charged in this case for the amount due upon a note, drawn payable to him or his order, made and signed by *Ebenezer Storer,*and endorsed * by the defendant. This note is said to have been ne- [ * 86 ] gotiated by a Mr. *Greely;*but whether he received it of the defendant, or of the maker, Mr. *Storer,*is not stated. The probability is, from the whole of the case, that the defendant *98endorsed as a surety, for the accommodation of *Storer;*and there is certainly nothing in the case which should induce us to charge the defendant, beyond that conditional liability which every endorser of a negotiable note assumes. This depends upon the diligence of the holder of the note, when it becomes due, to obtain payment of the maker ,• and if payment is not' obtained, and the holder is not disposed to give credit to the maker, then upon the care of the holder to give seasonable notice to the endorser that the note is due and unpaid, and that payment is demanded of him. And the endorser is discharged from all liability, when the holder of the note has neglected to make a suitable demand on the maker, or to notify the endorser seasonably, when the note remains upon his credit. (1)

The demand of the maker by the cashier of the *Portland*Bank, in the case at bar, answers one of the requisites, to enable the plaintiff to recover against the endorser; but the subsequent delay of a week, before the defendant was notified that the maker of the note had neglected to take it up, is hardly to be accounted for, without supposing a confidence in the maker, and a credit to him, which are entirely inconsistent with any further liability of the endorser. The maker was at the time in good credit, and so continued, for aught that appears in the case, for more than a month afterwards; and, as late as the 1st of August, made a partial payment upon the note.

It is not, however, necessary for the endorser to prove, in order to discharge himself, that a credit injurious to him had been given to the maker. The endorser is entitled to seasonable notice; and what is seasonable notice is a question of law, to be decided by the Court, as soon as the facts necessary to the decision are ascertained. *(a)***The parties concerned in the case at bar, . [ * 87 ] that *is, the holder of the note, the bank where it-was deposited for collection, the maker, and the endorser, were *99all in one neighborhood, or, at least, so near to each other as that the means of communication between them were constant and uninterrupted through the day and every day. The circumstance of no mail establishment between *Portland*and *Cape Elisabeth*shows that the holder of the note, or those who were employed by him to collect it, depended on their own care and exertions; and a delay of a week is in every view unreasonable. The defendant is therefore not liable, unless he has explicitly, and with a full knowledge of all the circumstances, waived this advantage, and admitted himself to be liable, notwithstanding the neglect of the holder of the note on his part.

The anxiety expressed by the defendant, in his inquiries and solicitations with Mr. *Greely,*are not of this character, and have no tendency to prove an intention, on the part of the defendant, to make himself chargeable. This conduct was probably induced by an apprehension that he was, or might be made, liable upon his endorsement, if the note should not be paid. But it would be unjust to carry it farther, and especially to infer, from a prudent and decent anxiety, natural in his situation, a waiver of his rights, and a consent to become liable at all events.

The question of a mistake, whether in the facts or of the law, suggested in the argument, does not arise in the case at bar. The defendant neither said nor did any thing which authorized an exclusive reliance upon him. What passed between the plaintiff and *Greely*is not evidence to charge the defendant. But if he had even requested *Greely*to collect the note from *Storer,*if he could, this is by no means an admissk a, on the part of the defendant, that he was to be considered liablt upon the note, if it should not be collected; nor did such a request, or *Greely’s*proceedings under it, prejudice, in any degree, the right or remedy of the holder of the note. (2) If he relied upon the defendant, and for that reason neglected any practical means he had of collecting * the note from *Storer,*the holder of the note mistook [ * 88 ] his own rights in point, of law. But he cannot be said to have relied upon any promise of the defendant, which authorized the neglect.

The defendant is not, in our opinion, liable upon his endorsement of the note in question, upon the facts stated respecting it; and the plaintiff, according to the agreement of the parties, is to be called.

*Plaintiff nonsuit,**(a)*

*100ADDITIONAL NOTE.

[See, as to demand and notice, *Boston,*&c., vs. *Hodges,*9 *Pick.*420. — *Church*vs. *Barlaw,*9 *Pick.*547. — *Bachellor*vs. *Priest,*12 *Pick.*399.— *Granite,*&c., vs. *Ayers*16 *Pick.*392. — *Folger*vs. *Chase,*18 *Pick.*63. — *Scaver*vs. *Lincoln,*21 *Pick.*267. — *Grand,*&c., vs. *Blanchard,*23 *Pick.*305. — *Ranger*vs. *Cary,*1 *Metc.*369. — *Gilbert*vs. *Dennis,*3 *Metc.*495.— *Bank,*&c., vs. Triplett, 1 *Pet.*30.— *Williams*vs. *Bank,*&c., 2 *Pet.*100. — *Picquet*vs. *Curtis,*1 *Sumn.*478.— *Gallagher*vs. *Roberts,*2 *Fairf.*489. — *Seymour*vs. *Van Slyck,*8 *Wend.*403.— *Rahm*vs. *The Philadelphia,*&c., 1 *Rowle, 335.—Agnew*vs. *The Bank,*&c., 2 *Harr.*& *G.*478. — *Moor*vs. *Coffield,*3 *Dev. 247.*— *Johnston*vs. *M'Guin, 4 Dev.*277.— *Brock vs. Thompson,*1 *Bai. 322*— *M'Lain*vs. *Waters,*9 *Dana,*56. — *Nashville,*&c., vs. *Bennett,*1 *Yerg.*166.— *Gist*vs. *Lybrand,*3 *Ohio,*319. — *Foard*vs. *Johnson,*2 *Alab.*565. — F. H.]

(1)

*Kyd.*117. —1 *Wils. Rep.*46, *Hull*vs. *Pitfield.*

(a)

**[In *Field*vs. Nickerson, (13 *Mass. Rep.*137,) reasonable time for making a demand on the maker, and giving notice to the endorser, was treated as a mixed question of law and fact, “ to be determined by the jury, under the direction of the court.” But *in Whitwell*vs. Johnson, (17 *Mass. Rep.*453,) reasonable notice is again declared to be merely a question of law. — And see *Ellis*vs. Paige, 1 *Pick.*43. — *Eagle Bank*vs. Chapin, 3 *Pick.*380. — See the *American*cases collected in a note to Starkie, part 4, p. 2o5. — Chitty, 6th ed. 363, 269, 270. — Bayley, 4th ed. p. 342. — Starkie, in treating of questions of law and fact, says, “ General questions of reasonable time, probable cause, due diligence, and the like, are never, in the abstract, necessarily either mere questions of law or questions of fact. Whether, in a particular instance, the question be of the one class, or the other, depends simply on the existence and applicability of a rule of law to the special circumstances, or *res gestee:*if any such rule be applicable, the question is a mere question of law; if no such rule apply, the inference is one of mere fact for the jury.” — *Starkie's Ev.*part 3, p. 420. — Ed.]

(2)

*Chitty,*171,174. —1 *D. E.*174.

(a)

**[If *Greely*was to be considered as the agent of the defendant, as the report states, it would seem that the conduct of the defendant, in dealing with the note to the prejudice of the holder, after knowledge of all the facts, was sufficient to have *100precluded him from settingup want of notice as a defence.— *Whittaker vs. Morris Chitty,*6th ed. 233, *n.*— *Cooper*vs. *Wall, Chitty,*237, note (n).— *Lindie vs. Robin* son,*7 *East.*233. — *Hopes*vs. *Alder,*6 *East,*16. — *Rogers*vs. *Stephens,*2 *D. & E.*713 — *Anson*vs. *Bailey, Bul. N. P.*276. — *Guason & Al.*vs. *Metz,*1 *Barn, Cress.*1*93,*and see the cases cited in *Thomson on Bills,*pp. 657—670. — *Saund. Plead. Ev.,*vol i. p. 296.— *Chitty,*4th ed. 233—236. — *Bayley,*4th ed. Am. 187—190. — Ed.]