#### Wilson, Ex’trix, vs. Senier, impleaded with another.

A negotiable note payable on a day certain, must be presented for payment on the very day it falls due, in order to charge the indorser, unless presentment and notice be waived, or the omission to present it be excused by some accident or other circumstance, not attributable to the fault of the holder, which renders it impossible or unsafe to do so. Sickness of the holder of the note is not an excuse for the failure to present it at the proper time, unless it was not only sudden, but so severe as not only to prevent him from making the presentment and giving notice of non-payment himself, hut from employing another person to do it; and then it must be shown that the proper steps were taken as soon as the disability was removed.

Where the holder of a note was seized, about the time it matured, with a sickness which proved mortal, and the note was not presented for payment before his death: *Held,*that if the delay during such sickness were shown to be excusable, the neglect of his executrix for several months, to present the note or give notice of non-payment, discharged the indorser.

The insolvency of the maker of the note does not excuse the holder from giving notice of non-payment to the indorser, although the latter knew of the insolvency at the time of the indorsement.

The fact that the indorser of anote had taken from the maker a(mortgage upon a stock of goods to secure its payment, and a mortgage upon all his other personal and real estate to secure other debts due to him, does not dispense with the necessity of a demand and notice of non-payment. Nothing short of a general assignment and actual transfer to the indorser of all the maker’s effects, or the receipt by him of money or property for the purpose of satisfying the note, will create such dispensation.

The temporary absence or removal of the indorser from his place of residence or business is no reason why the note should not be presented, nor does it relieve the holder from the responsibility of endeavoring to notify him of the maker’s default.

Where the indorser, during his absence in England, left a general agent near his residence in this state, and his post-office address in England was known to the maker of the note: *Held,*1. That notice served upon such agent, or forwarded by mail to the address of the indorser in England, would have been sufficient. 2. That the holder, if ignorant of the indorser’s address in England, was bound to exercise diligence in making inquiry on the subject, and the maker was a proper person of whom to make such inquiry. 8. That if after such inquiry he could not ascertain the facts, then service by leaving the notice at the indorser’s last place of abode or business, or by depositing it in the post-office, addressed to him at his last place of residence in this state, would probably have been sufficient.

EBBOB to the Circuit Court for *Dane*county.

Action by the executrix of Wilson against McDonald as the maker, and *Senier*as the indorser of a negotiable promissory note, which fell due August 1-3, 1856. The complaint alleged that the note was indorsed by *Senier*to the plaintiff’s *381testator on tbe day it became due, or between that day and tbe 9tb of August, 1856; that McDonald was tben insolvent,. as *Senier*well knew, and bas continued insolvent ever since; that immediately after tbe transfer, tbe testator was suddenly taken with severe illness, of wbicb be died on tbe day last mentioned, after having made a will by wbicb be appointed tbe plaintiff bis executrix, to whom letters testamentary were issued October 6, 1856: that immediately after tbe issue of said letters, tbe plaintiff presented the note to McDonald and demanded payment, wbicb was refused; that immediately after tbe transfer of tbe note, *Senier*left tbis state for England, leaving no funds to pay said note, nor making any arrangement with any person to pay it in case of default of payment by tbe maker, and did not return until about tbe 1st of April, 1857; that immediately after bis return, tbe plaintiff notified him of tbe presentment pf tbe note to tbe maker, and its non-payment, and requested him to pay tbe same, wbicb be refused. The nature of tbe defense, and tbe facts proved on tbe trial, are stated sufficiently in tbe opinion of tlfe court. Judgment in tbe circuit court of non-suit as to tbe defendant *Senier.*

*Julius T.*Glark, for plaintiff in error,

contended that a valid excuse for tbe non-protest of tbe nóte bad been alleged and proven, viz. (1). That tbe bolder, just before tbe note fell due, was suddenly taken sick, of wbicb sickness be soon after died. Edwards on Bills, &c., 649, 458, 892 ; 7 Cow., 707, 714. (2). That tbe indorser was on bis way to Europe at tbe time tbe note fell due, so that notice could not be served on him. (8). That tbe maker was insolvent when tbe note became due. 2 Corns., 682. (4). That tbe indorser bad a mortgage upon *the whole*of tbe property, real and personal, of the maker, securing tbis and other claims, upon wbicb be subsequently took and disposed of tbe property. Edwards on Bills, 687, 446; 3 Kern., -55; 15 East, 222; 5 Mass., 170; 1 Esp., 392; 1 Serg. & B,., 334.

*J. 0.*Hopkins, for defendant in ferror:

1. Tbe facts stated in the complaint were not sufficient to sustain tbe action. Tbe default as to demand of payment and notice was not excused by tbe sickness of tbe bolder (1 *382Kern., 25, 31, and oases there cited; 8 Barb., 396; 12 432 ; 13 id., 47 ; Ohitty on Bills, 401); nor by tbe absence of tbe indorser, tbe maker not baying been absent. 2. No facts could be relied upon at tbe trial to excuse sucb default, except those mentioned in tbe complaint. *Garvey vs.*Fowler, 4 Sandf., 665. 3. The attempt to show that tbe defendant was secured, was a failure; but if not, that did not excuse presentment and demand. *Seacord vs.*Miller, 13 N. Y., 56.

December 11.

*By &6 Oourt,*

Dixow, O. J.

The note on which this action was instituted was payable on a day certain. As to sucb it is well settled that they must be presented for payment on tbe *very day they fall due,*and that a delay of *even.one day*after the instrument has come to maturity, discharges the parties not primarily liable (Cbitty on Bills, 402); unless tbe delay or omission to present be excused by some accident or other circumstance, not attributable to tbe fault of tbe bolder, which renders it impossible or unsafe for him to do so (Idem, 385, 391, and 485 ; *Tunno vs. Lague,*5 Johns. Cases, 1); or unless presentment and notice have been waived in some of tbe ways recognized by law. Edw. on Bills, 632 et seq. In respect to such paper, tbe time within which a demand shall be made and notice given has, by repeated adjudications, been very accurately defined. It is confined within very narrow limits — so narrow, indeed, as hardly to be open to the question of reasonable diligence. Hence the question here presented differs widely from that involved in cases of bills payable after sight, or notes on demand, when the action is brought to charge the drawer or indorser, and the case of *Aymar vs. Beers,*7 Cowen, 705, cited by counsel for the plaintiff in error, seems quite inapplicable. In such cases the parties, having fixed no time for the presentment of the bill or for the demand of payment of the note, have left it to be governed by the circumstances of the case; and what constitutes reasonable diligence, or such as shall charge the drawer or indorser, which implies that the holder has some latitude of discretion, is a question which cannot be settled by any rule alike applicable to all cases, but must, from its *383nature, be determined by an application of tbe general principle to tbe facts attending eacb particular transaction. It is _ manifest, therefore, that there are many things that would influence the judgment of the court and, be deemed sufficient to excuse delay and inattention in such cases, which could not affect the determination of a case like this, where the holder may be said to have no discretion at all, the time for presentment and notice being specifically fixed by law. In *Aymar vs.*Beers, the sickness of the payee, who was himself to be the bearer of a bill drawn in *New York*upon a firm in Richmond, Virginia, payable at three days sight, was held to excuse delay in its presentment; but no case can be found where the *mere*sickness of the holder of a bill or note payable at a time certain, has been held to justify a failure to present it on the day of its maturity. If is is true that the elementary writers, generally, say that the sudden illness or death of the holder or his agent may constitute an excuse for the want of regular notice to any of the parties, provided it be given as soon as possible after the impediment is removed. Edw. on Bills, 392, 458, 649. This is Mr. Chitty’s language upon the subject. Chitty on Bills, 360, 485. Mr. Parsoíts in his Elements of Mercantile Law, p. 119, says: *“*Death, or severe illness of the notifier or his agent, is an excuse for delay; but the death, bankruptcy or insolvency of the drawee is no excuse.” The authorities which he cites will be found, on examination, to relate to the last proposition only, and none of them go to the question of the death or illness of the notifier or his agent. In a note to Mr. Chitty’s Treatise, p. 435, it is said that there is no reported case deciding whether *accident*will excuse delay in giving notice of non-acceptance or non-payment. In *Hilton vs. Shepherd,*6 East, 14, in note, Harrow and Russell contended that if the party was prevented from giving notice within the time named, by a 'physical impossibility — if he was taken ill, or lost his senses, or was under duress, laches could not be imputed to him. Lord KeNYON said: *“*I find invincible objections in my own mind to consider that the rule of law requiring due diligence, is tied down to the next day.” From these and other similar expressions to be found in the *384books, there can be little doubt that cases may arise when the death or illness of the holder or his agent will excuse; but to do so they would undoubtedly be required to come strictly within the rule laid down by Mr. Chitty ; the illness must not only be shown to have been sudden, but likewise so severe as to have prevented the owner or agent from employing another person to make the presentment or give the notice, as well as to have precluded the possibility of his doing so himself; and then it must be shown that the proper steps were taken as soon as the disability was removed.

Applying these principles to the present case, it will be very readily perceived that the facts disclosed by the record constitute no valid excuse for the omission of the plaintiff’s testator to present the note and give notice of its non-payment on the day it became due ; nor for the subsequent neglect of the plaintiff to do so in case the testator had been lawfully excused. The note matured on the 3d day of August, 1856. The complaint alleges that either on that day or between that day and the 9th day of the same month, the defendant indorsed and delivered it to the testator, who became the legal owner and holder, and that immediately after the transfer he was suddenly taken with severe illness, of which he died on the last named day, after having made a will, &c. The defendant answers that the transfer was made on the 23d day of July, and the plaintiff’s witness McDonald, who was the maker of the note, clearly disproves the allegations of the complaint. He testifies that before the note was due, the deceased came to him and told him that he should want things from his store and that -he would not press him, and that after the transfer and before maturity, he sold the deceased goods which were applied upon it. The precise time when Mr. Wilson was taken sick is not fixed by the testimony. Thus by comparing the allegations of the complaint with the proofs, it does not appear that he was not in perfect health on the day the note became due, and that he might not have presented it for payment, and given notice to the defendant in case it had been refused. But conceding that it is shown that he was sick, still it is not shown that he was so sick as to be incapable, at that time, of at*385tending to bis worldly affairs. The complaint avers tbat be made a will, wbicb was afterwards proved, and tbe inference must be tbat be did so during tbe period of bis illness.

Again, if nothing was lost by tbe testator’s omission, still it seems clear tbat tbe subsequent neglect of tbe plaintiff bas discharged tbe defendant. For if it be admitted tbat she might have presented tbe note and given notice of nonpayment even after probate of tbe will and tbe issuing of letters testamentary to her, it is not shown tbat she used due diligence, or any diligence at all in tbat respect. Tbe rule laid down by Mr. Chitty is, tbat notice must be given as soon as *possible*after the impediment ‘is removed. Tbe witness McDonald testified tbat she asked him for tbe money on tbe note sometime between August, 1856, and February, 1857, tbe exact time be does not remember; and it is not pretended tbat she ever gave or attempted to give tbe defendant any notice whatever until after bis return from England, about April, 1857. So far as tbe circumstance of sickness is concerned, however it may have been, this is a complete answer to it, and shows that no advantage can now be taken of it as an apology for tbe want of presentment and notice.

Tbe excuses tbat tbe defendant was on bis way to Europe at tbe time tbe note became due, so tbat notice could not be served on him, and tbat McDonald,. tbe maker, was then insolvent, are clearly no better. Tbe temporary absence or removal of tbe indorser from bis place of residence or business is no reason why tbe note should not be presented; nor does it relieve tbe bolder from tbe responsibility of endeavoring to notify him of tbe maker’s default. After presentment and default tbe giving of notice is a question of diligence on tbe part of tbe bolder, and if he exercises proper care and prudence for tbat purpose, tbe indorser will not be exonerated, even though be does not: receive actual notice. In case of tbe temporary removal of tbe indorser, notice put into tbe keyhole of tbe outer door of bis . dwelling bouse, which was found fastened up, bas been held sufficient. *Stewart vs. Eden,*2 Caines’ R, 121. A deposit of notice in tbe post office addressed to tbe indorser, bas, under like cir*386cumstances, been decided to be good. *Ogden vs. Cowley,*2 Johns. R., 274. If tbe residence or address of tbe indorser be unknown, tbe bolder must show that be has used proper diligence to find it out, by inquiring of persons likely to know, and who have no interest in misleading him; and if be act upon information thus obtained, though it be not correct in fact, tbe notice will be good. *Chapman vs. Lipscombe,*1 Johns. R, 294; 16 id., 218; 5 Wend., 587 ; 21 id., 643 ; 2 Hill, 587; 1 Gray, 175; 40 N. H., 506 ; 3 Coms., 442 ; 2 Sandf., 176; 7 How. (Miss.), 294. It appears that tbe post office in England at which tbe defendant received bis letters during bis absence, was well known to McDonald, who was a person to whom tbe plaintiff or her testator might properly have applied for information upon that subject. It also appears that tbe defendant left a general agent residing near by, a fact which would have been very likely to have become known if inquiry bad been made. Under such circumstances service upon tbe agent, or by forwarding tbe notice by mail addressed to tbe defendant in England, would undoubtedly-have been good; and if those could not have been ascertained, then service by leaving notice at bis last place of abode or business, or by depositing it in tbe post office, addressed to him at bis place of residence in tbe state, would probably have been sufficient.

As to insolvency, it has long been settled that it does not discharge tbe bolder from giving notice, though tbe maker be insolvent at tbe time of indorsement and that be known to tbe indorser. *Jackson vs.*Richards, 2 Caines, 343; *Nicholson vs.*Gouthit, 2 H. Black., 609 ; *Barton vs.*Baker, 1 Serg. & Rawle, 334; *Bank vs.*Griswold, 7 Wend., 165 ; *Lawrence vs.*Langley, 14 N. H., 70 ; *Boultbee vs.*Stubbs, 18 Vesey, 20; *Esdaile vs. Sowerby,*11 East, 114.

Tbe only remaining question is, whether tbe defendant’s having taken security for tbe payment of this, among other debts, by mortgage upon all of McDonald’s property, real and personal, dispensed with a demand and notice. Tbe authorities are uniform that tbe mere precaution by an indor-ser of taking security from bis principal, does not so operate. Nothing short of a general assignment and actual transfer to *387tbe indorser of all tbe mater’s effects, or tbe receipt of money or property by bim for tbe purpose of satisfying tbe debt and with an understanding that be is to do so, in wbicb case be changes place with tbe maker and becomes himself tbe principal, has ever been held to create such dispensation, and tbe disposition of tbe courts has been to restrict rather than enlarge the doctrine. In *Corney vs. Da Costa,*1 Esp. R. 302; *Bond vs.*Farnham, 5 Mass., 170; *Barton vs.*Baker, 1 Serg. & Rawle, 334; and *The Bank vs. Griswold,*7 Wend., 165, such transfers were held to excuse tbe want of demand and notice, and tbe indorsers were charged because they bad taken into their possession tbe whole estates of tbe makers expressly to meet their responsibilities, and bad thus secured every object wbicb tbe law presumes would be tbe consequence of notice of default. See also *Leffingwell vs. White,*1 Johns. Cases, 99; *Duvall vs. The Bank,*9 Grill & J., 31; *Lewis vs. Kramer,*3 Md. R., 265; *Mead vs. Small,*2 Greenl., 109. The taking of security from tbe maker has been held not to dispense with tbe necessity of presentment and notice in tbe following cases : *Spencer vs. Harvey,*17 Wend., 489; *Seacord vs. Miller,*3 Kern., 56; *Kramer vs. Sandford,*4 Watts & Serg., 328. Tbe last named case contains a full and able discussion of tbe question and review of tbe authorities by Chief Justice GibsoN, and tbe conclusion reached by the court was, that tbe test consists in determining upon whom is tbe obligation to take up tbe note. If that remains with tbe maker, tbe indorser is entitled to notice; but'if it has devolved on tbe indorser himself, be needs none. With tbe correctness of this conclusion we are quite satisfied. But if tbe acceptance of security can in any case be held a waiver of notice, it seems to us that tbe reasoning of tbe learned judge shows very plainly that it ought not to be in this. He says that notice may be necessary to make tbe very security available on wbicb tbe indorser is supposed to have relied, but wbicb be may have reserved for tbe critical moment. This was emphatically true of tbe security for tbe note in question. It was of tbe most precarious and uncertain kind — a chattel mortgage upon a stock of goods, tbe preservation of wbicb demanded constant care and watchfulness *388011 Part mor*SaSea ^ became -valueless as a security as agaiust creditors, purchasers or mortgagees in good faith, after the expiration of one year from the time it was filed, unless renewed by the affidavit of the mortgagee, his agent or attorney, in the manner prescribed by the statute. Whatever, therefore, might be deemed the effect of accepting security of a more permanent and unchangeable character, the taking of such as this clearly should not be considered a substitute for notice.

For these reasons we are of opinion that the decision of the court below was correct, and that the judgment must be affirmed.

Ordered accordingly.